Request By:
Hon. Stuart L. Adams, Jr.
Assistant County Attorney
621 West Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. Jon L. Fleischaker, Attorney for The Louisville Times, has appealed to the Attorney General pursuant to KRS 61.880 your denial of inspection of certain records in the custody of the Jefferson County Office of Economic Development (OED) pertaining to industrial revenue bond applications. Ms. Deborah Duffy, a reporter for the Neighborhoods Section of The Louisville Times, made a request to the Office of the County Judge/Executive of Jefferson County for nine categories of records relating to the application of SCA Services Inc. or SCA Services Inc. of Kentucky Inc. for an industrial revenue bond issued by the county or its agencies in 1980, 1981 or 1982. Details of each category will follow in the body of this opinion.
The Office of the County Judge/Executive responded by forwarding Ms. Duffy's request to your office. You denied Ms. Duffy's request in full. Specifically you stated that Ms. Duffy's request must be denied based upon KRS 61.878(1)(b) which exempts from public inspection those records confidentially disclosed to an agency and compiled and maintained in conjunction with an application for a loan. Denial was also based on KRS 61.878(1)(g) and (h) which exempts from public inspection those records constituting preliminary drafts, notes, correspondence with private individuals, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Additionally you stated that many of the requested records are not possessed by the Fiscal Court or the Office of Economic Development.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper except as to certain requested records. We will address each record as it was requested by Ms. Duffy.
1. The application.
The application for an industrial revenue bond is not available for public inspection. First, KRS 61.878(1)(c) exempts public records pertaining to a prospective business or industry location where no previous public disclosure has been made of the business' or industry's interest in relocating or expanding in the Commonwealth. The industrial revenue bond program is set up to provide low-interest capital financing for credit worthy businesses wishing to relocate or to expand existing plants and thereby create permanent jobs for county residents.
Second, KRS 61.878(1)(b) exempts from public inspection all records confidentially disclosed in conjunction with an application for a loan. Although Jefferson County assumes no financial risks on the bonds, they are the issuing authority and review the bond applications as if a loan application.
2. The notification of approval or denial.
Notification of approval or denial of the industrial revenue bond by OED is evidence of a final agency action. It is therefore open to public inspection. KRS 61.878(1)(g).
3. The amount of the bond issue sought by SCA Services.
The amount of bond issue sought is exempt from public inspection under KRS 61.878(1)(b) and (c). [See #1 above.]
4. The intended use of the bond issue.
The intended use of the bond issue is open to public inspection if contained in correspondence which gives final action of OED. KRS 61.878(1)(g). Otherwise it is exempt as preliminary memoranda under KRS 61.878(1)(g) and (h).
5. The decision by the Fiscal Court, Office of Economic Development and other county officials on whether to approve the bond issue.
Only those decisions which constitute final agency action are open to public inspection. KRS 61.878(1)(g). Others are exempted as containing preliminary recommendations, opinions, and policies. KRS 61.878(1)(h).
6. The reason for the decision.
The reason for the decision on whether to approve the bond issue is open to public inspection if contained in correspondence indicating final agency action. It is otherwise exempt under KRS 61.878(1)(g) and (h) as preliminary memoranda.
7. What further action the county recommended SCA Services take if the company's application was denied.
County recommendations are exempt from public inspection as preliminary recommendations or preliminary memoranda in which opinions are expressed or policies recommended, unless contained or incorporated into correspondence indicating final action. KRS 61.878(1)(g), (h).
8. Copies of all correspondence between the county and SCA regarding the application.
Correspondence between the County and the applicant regarding the application is exempt from public inspection as preliminary unless contained or incorporated into correspondence indicating final action. KRS 61.878(1)(g), (h).
9. Copies of all correspondence between the County Judge's Office, the Office of Economic Development and any other governmental agencies regarding the application.
Correspondence between all the county agencies regarding the application is exempt from public inspection as preliminary unless contained or incorporated into correspondence indicating final action. KRS 61.878(1)(g), (h).
It is therefore the opinion of the Attorney General that your denial was proper with the above noted exceptions.
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).