Request By:
Mr. Carl Millanti
Assistant to the Director
Division of Waste Management
Department for Environmental Protection
Fort Boone Plaza, 18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Kimberly Casada Tucker has appealed to the Attorney General pursuant to KRS 61.880 your denial of her request to inspect certain public records which apparently are in your custody. She describes the documents in question as the inspection reports of the Pulaski Landfill, Inc. on May 20 and 21, 1985.
In your letter to Ms. Tucker, dated June 10, 1985, you advised her that in connection with her request under the Open Records Law relative to inspections by the Cabinet concerning Pulaski Landfill, Inc. on May 20 or May 21, 1985, there is no material in the files subject to that law. You further wrote that you do have interoffice memoranda regarding the subject but such documents are excluded from public access.
In a telephone conversation with the undersigned Assistant Attorney General on June 20,1985, you said that the inspection reports in question consist of memoranda from the field inspector to her supervisor as to what the inspector saw during the course of the inspections. In the memoranda the inspector has reported the facts as she saw them and at times has set forth her opinions relative to the matters in question.
OPINION OF THE ATTORENY GENERAL
Among the public records which are excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884) and subject to inspection only upon an order of a court of competent jurisdiction are those dealt with in KRS 61.878(1)(g) and (h):
"(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In OAG 84-163, a copy of which is enclosed, we said that we have consistently held that intraoffice memoranda are exempt from public inspection, especially where the memoranda are preliminary (not evidence of final agency action) and contain opinions of the writers.
In OAG 85-77, a copy of which is enclosed, we said that the denial of the request to inspect the investigative report of a police officer which contained that officer's observations and recommendations was proper so long as that specific report was not incorporated into the public agency's final report of the matter. Thus, a preliminary memorandum is normally excluded from the public inspection provisions of the Open Records Act.
This Office concluded in OAG 85-58, copy enclosed, that the worknotes of an occupational safety and health compliance officer, compiled in the ordinary course of an investigation of a worksite, and containing preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, are preliminary documents. Furthermore, work papers and intraoffice memoranda are exempt from public inspection. See also OAG 85-63, a copy of which is enclosed.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect the reports of the Cabinet's field inspector relative to her inspection of a landfill operation, containing the inspector's observations and opinions, was proper under KRS 61.878(1)(g) and (h) as such reports are intraoffice memoranda containing preliminary drafts, notes and personal observations. Such material is only subject to public inspection (in the absence of a court order) if it constitutes notice of final action of the public agency or is incorporated into the public agency's final report or final decision on the matter.
The public agency should be aware of the provisions of KRS 61.880(2) providing in part that a copy of the written response denying inspection of a public record shall be forwarded immediately by the public agency to the Attorney General. This was not done in this case.
As required by statute a copy of this opinion is being sent to the requesting party who has the right to challenge it in circuit court pursuant to KRS 61.880(5).