Request By:
Commissioner Morgan T. Elkins
Kentucky State Police
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. Kevin L. Nesbitt, attorney, has appealed to the Attorney General pursuant to KRS 61.880 on behalf of Mr. Richard Clay your denial of Mr. Clay's request to inspect certain documents in your possession as Kentucky State Police Commissioner. Mr. Clay requested to inspect several documents relating to breath alcohol testing which will be discussed in detail in the body of this opinion.
In your denial you stated that the requested records are contained in the files of any number of organizational sections of the Kentucky State Police (KSP) and the filing systems of each section would need to be searched. Denial was therefore based on KRS 61.872(5) due to the voluminous amount of records requested to be inspected. You state that searching, retrieval, collating, copying and refiling of this voluminous request would disrupt the official functions of KSP, especially in light of the fact that some of the requested information relates back to 1982 and is probably in archives.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper under the Open Records law with the exceptions noted below. We will address each category as requested by Mr. Clay.
1. Any and all notices, memoranda, preliminary reports, final reports, test results, correspondence, or other documents or papers relating to, pertaining to or concerning testing of any evidential breath alcohol testing equipment for radio frequency interference (RFI) or electro-magnetic interference (EMI) done in 1982, 1983, or 1984, under the direction of the National Bureau of Standards (NBS) or the National Highway Traffic Safety Administration (NHTSA), or Kentucky State Police (KSP), or either.
The above records are exempt from public inspection under KRS 61.878(1)(g) and (h) as
(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
and
(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
unless they signify a final report or final agency action by KSP, or are incorporated into a final report.
2. Any and all written correspondence or memoranda between KSP or any of its employees or agents regarding testing of evidential breath alcohol testing equipment for radio frequency interference (RFI) or electro-magnetic interference (EMI) done in 1982, 1983, or 1984 under the direction of the NBS or the NHTSA, or KSP, or either.
The above records are exempt from public inspection under KRS 61.878(1)(g) unless incorporated into any notice of final action by KSP.
3. Any and all written correspondence or memoranda between Smith & Wesson or any other manufacturer of evidential breath alcohol testing equipment used in the Commonwealth of Kentucky and KSP or any of its employees or agents regarding operation, testing, or maintenance of evidential breath alcohol testing equipment used in the Commonwealth of Kentucky.
The above records are exempt from public inspection under KRS 61.878(1)(g) unless incorporated into any notice of final action by KSP.
Therefore, it is our opinion that you properly denied inspection of the requested records under KRS 61.878(1)(g) and (h) as they constitute preliminary reports. However, should any of the requested records include final reports indicative of final KSP action or any preliminary reports incorporated into final reports, they are open to public inspection. Exempted material is to be separated from non-exempted material to allow inspection under KRS 61.878(3). Since you indicate that compliance might be possible if the request is narrowed, the voluminous record-unreasonable burden exception provided by KRS 61.872(5) upon which you relied in your denial might not prove troublesome for inspection of any final reports or final action by KSP relating to the requested area.
As directed by statute, a copy of this opinion is being sent to the requestor who may initiate further proceedings pursuant to KRS 61.880(5).