Request By:
Mr. Eddie R. Sanders, Director
Division of Administrative Services
Department of Military Affairs
Boone Center
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. William C. O. Reaves, attorney, has appealed to the Attorney General pursuant to KRS 61.880(2) your denial of Ms. Deborah Handshoe's request to inspect certain documents in your custody. Specifically, Ms. Handshoe made a written request on March 15, 1984 to inspect the following items:
1. A letter dated January 19, 1984, sent to Mr. Archie O. Taylor from you.
2. A letter dated January 25, 1984, written by Mr. Archie O. Taylor to you.
Your denial of inspection was based on KRS 61.878(1)(h) which exempts from inspection those records which contain "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." You stated that the letters are correspondence between different offices in the Department of Military Affairs and contain preliminary opinions.
Your denial was also based on KRS 61.878(1)(i) which exempts from inspection those "records or information the disclosure of which is prohibited by federal law or regulation." You then indicated that the federal law referenced in KRS 61.878(1)(i) is 5 U.S.C. § 552(b)(5) which provides that inter-agency or intra-agency memorandums or letters are not available by law to a party other than an agency in litigation with the custodial agency.
OPINION OF THE ATTORNEY GENERAL
A copy of your denial was properly forwarded to this office in compliance with KRS 61.880(2). You also enclosed copies of the two letters in question. After reviewing these letters, it is the opinion of the Attorney General that your denial of inspection was proper under the Open Records law.
Although Mr. Reaves asserts in his appeal on behalf of Ms. Handshoe that KRS 61.878(1)(h) does not prohibit release of these letters as they are not preliminary recommendations or memoranda, we must respectfully disagree. This Office has consistently held that intra-office memoranda are exempt from public inspection, especially wherein, as here, the memoranda are "preliminary" ( i.e. not evidence of final agency action) and contain opinions of the writers. OAG 79-469, 80-289.
Due to the fact that the requested letters are exempt from public inspection under KRS 61.878(1)(h), we will not address the applicability of KRS 61.878(1)(i) in reference to 5 U.S.C. § 552(b)(5).
Mr. Reaves also asserts that the Department of Military Affairs has waived their right to deny Ms. Handshoe access to these letters by previously granting her permission to view them. The Open Records law does not contain any such "waiver" language. Although the exemptions of KRS 61.878(1) are permissive and not mandatory, neither the statute, our opinions, or case law indicate that the exemptions may be waived by allowing inspection and then invoking an exemption. OAG 79-275.
It is therefore the opinion of the Attorney General that your denial of inspection of the two requested letters was proper under KRS 61.878(1)(h) of the Open Records law as these letters constitute intra-agency preliminary memoranda in which opinions are expressed.
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) .