Request By:
Major Bobby Stallins
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General;Thomas R. Emerson, Assistant Attorney General
Kimberly K. Greene, Esq., whose law firm represents The Courier-Journal and The Louisville Times has appealed to the Attorney General pursuant to KRS 61.880 your denial of the request of Mr. Livingston Taylor, a reporter for The Courier-Journal, to inspect certain records in your custody. Mr. Taylor described the records in question as the report of the Management Evaluation of the KSP's Auto Theft Section conducted earlier this year.
In your letter to Mr. Taylor, dated October 11, 1985, you advised him that the records in question are excluded from public inspection, in the absence of a court order, pursuant to KRS 61.878(1)(h). The report in question was prepared by the Kentucky State Police Inspections and Evaluations Section. It is a preliminary document and it does not set forth any final agency action. It contains the opinions and recommendations of the writer as to matters of internal policy.
Ms. Greene's letter of appeal disagrees with your conclusion that the report constitutes a preliminary document pursuant to KRS 61.878(1)(h). She maintains that the report is a final report which is not forwarded to any higher authority for action. As such it is a public document and not exempt from public inspection. She cites the case of City of Louisville v. Courier-Journal, Etc., Ky. App., 637 S.W.2d 658 (1982) but alleges that the situation involved here is distinguishable from what transpired in that case.
The undersigned Assistant Attorney General talked with you by telephone on October 31, 1985 and you again stated that the report in question is a preliminary document. The person or group preparing the report had no authority to make any binding or final decisions. The report was submitted to the Commissioner of the State Police for such final action or decision, if any, deemed appropriate by the Commissioner.
Opinion of the Attorney General
Among the public records which may be excluded from public inspection in the absence of an order of a court of competent jurisdiction permitting inspection are those described 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;"
The court, in City of Louisville v. Courier-Journal, Etc., Ky. App., 637 S.W.2d 658, 659 (1982) said in part as follows:
"It is the opinion of this Court that subsections (g) and (h) quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
"Its information is submitted for review to the chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent."
In OAG 85-63, copy enclosed, this Office concluded that a city's denial of a request to inspect a document prepared by the police chief concerning his investigation into an application for a municipal adult entertainment license, the document having been prepared at the city council's request in connection with its review of the application, was proper under KRS 61.878(1)(g) and (h) so long as the document neither indicates final municipal action nor involves a preliminary report incorporated into a final municipal report.
In OAG 84-337, copy enclosed, we dealt with reports prepared for a governmental agency and the preliminary nature of such reports under KRS 61.878(1)(h). We said in part at page two of that opinion as follows:
". . . In both instances, although the reports were final reports to the public agency, they remained preliminary and exempt from public inspection due to the fact that they contained opinions and recommendations which the agency could accept or disregard in taking final action. "
Finally in OAG 85-96, copy enclosed, we said in part that the city's denial of the request to inspect the realty company's feasibility report on the construction of an office building on city owned land was proper under KRS 61.878(1)(h) as such a report is preliminary in nature, setting forth opinions and recommendations for review and consideration by the city.
Therefore, it is the opinion of the Attorney General that your denial of the request to inspect a report of the Management Evaluation of the KSP's Auto Theft Section, prepared by the State Police Inspections and Evaluations Section, for submission to the Commissioner of the State Police for such final action or decision as he deems appropriate, was proper under KRS 61.878(1)(g) and (h) so long as the report in question neither indicates final action by the State Police nor involves a preliminary report incorporated into a final report by the State Police.
As required by statute a copy of this opinion is being sent to the requesting party, Kimberly K. Greene, Esq., who has the right to challenge it in circuit court pursuant to KRS 61.880(5).