Request By:
Charles Wickliffe, Esq.
Finance and Administration Cabinet
Office of Legal and Legislative Services
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Mark Hebert has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect a particular public document in your custody. He described the document in question as the "Letter dated November 7, 1985 from David Lowry, President of Bannum Enterprises, Inc. to Charlie Wickliffe, Legal Counsel for State Finance Cabinet."
In your response to Mr. Hebert, dated November 18, 1985, you advised him that his request was being denied. You said specifically as follows, "Request for inspection denied at request of writer of letter - KRS 61.878(1)(g)."
In his letter of appeal to this Office Mr. Hebert states in part that Bannum Enterprises, Inc. and the state have already executed a contract. In his opinion all correspondence between that company and the state after the signing of the contract should be made available for public inspection. He further maintains that he did not receive a reply to his request within the three day time period set forth in KRS 61.880(1).
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides in part that each public agency, upon receipt of a request for records, shall determine within three days (excepting Saturdays, Sundays and legal holidays) after the receipt of the request whether to comply with the request and shall notify in writing the person making the request, within the three day period of its decision. It would appear from the materials submitted to this Office that you did not respond within the required time frame.
KRS 61.878(1)(g) exempts the following public records from public inspection in the absence of a court order authorizing inspection:
"Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; "
The document in question constitutes correspondence with a private individual and is not correspondence intended to give notice of final action of a public agency. The undersigned talked with you by telephone on December 4, 1985, and while a contract has been executed between the state and Bannum Enterprises, that contract has not been changed or modified as of that date. The document in question certainly does not represent final action of a public agency and it is merely correspondence with a private person.
In OAG 83-385, copy enclosed, we considered a request to inspect correspondence between the Governor's Office and private persons in an advertising company relative to outdoor (billboard) advertising. We concluded that the denial of public inspection of the correspondence pertaining to outdoor billboard advertising with private persons in an advertising company was proper under KRS 61.878(1)(g). We are also enclosing copies of OAG 84-118 and OAG 81-88, both of which deal with KRS 61.878(1)(g).
Thus, it is the opinion of the Attorney General that your denial of the request to inspect the document in question was proper as KRS 61.878(1)(g) excludes from public inspection, in the absence of a court order, that correspondence with private individuals which is not intended to give notice of final action of a public agency.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Mark Hebert, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).