Request By:
Mr. Roger Cole, Commissioner
Department of Administrative Services
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40622
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Christopher M. Hill, Esq., whose law firm represents Douglas Scott, has appealed to the Attorney General pursuant to KRS 61.880 the failure of your office to permit his law firm to inspect certain documents in your custody relating to Mr. Scott. The documents in question are described as the orders referred to in numerical paragraphs 14 and 19 of the letter of dismissal.
Mr. Scott was terminated from his position as Special Enforcement District Supervisor pursuant to a letter to him from Betty Hawkins, Executive Director, Office of Personnel Management, dated December 19, 1984. Numerous reasons were given for the termination but only those set forth in numerical paragraphs 14 and 19 of the letter are relevant to this Open Records Appeal.
Numerical paragraph 14 of the termination letter stated in part that, "Going on or off duty outside your assigned area is contrary to written instructions from Acting Director Larry Moore dated September 21, 1984 and contrary to instructions given all supervisors at a meeting (at which you were present) . . . ." Numerical paragraph 19 of the termination letter said in part as follows:
". . . Your Supervisor, Cpt. Frazier, on October 4, 1984 in a meeting of all officers, at which you were present, stated that jumpsuits were not that jumpsuits were not to be worn unless approved by Cpt. Frazier or Col. Bird in emergency situations. At this meeting, Cpt. Frazier stated that officers were to be in uniform at all times when outside their cruisers (this includes the gunbelt) . . . ."
William D. Kirkland, Esq., a member of the same law firm as Mr. Hill, requested on behalf of Mr. Scott to inspect various documents under the Open Records Law. Mr. Kirkland requested copies of the orders referred to in numerical paragraphs 14 and 19 of the termination letter, specifically the written instructions of Acting Director Moore dated September 21, 1984 and the instructions of Cpt. Frazier from the meeting of October 4, 1984.
You replied to Mr. Kirkland's letter in a letter dated February 6, 1985. You denied the request to inspect under the Open Records Law relative to the two specific items at issue in connection with this appeal. Numerical paragraphs 7 and 13 of your letter dealt with the incidents of September 21, 1984 and October 4, 1984. You replied in both paragraphs as follows: "Internal interoffice memoranda is completely exempted out of the Open Records Law by KRS 61.878(h), OAG 82-263 and OAG 84-19."
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1)(h) provides that among the public records excluded from the application of KRS 61.870 to 61.884 and subject to inspection only upon an order of a court of competent jurisdiction are:
"Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
As illustrated by the Attorney General's Opinions cited in your letter of February 6, 1985, this Office has consistently held that intraoffice memoranda constitute preliminary recommendations and preliminary memoranda which are excluded from the application of the Open Records Law in the absence of a court order. However, we disagree with your contentions that the written instructions of Acting Director Moore dated September 21, 1984 and the instructions of Cpt. Frazier of October 4, 1984 (if written) constitute internal memoranda which are excluded from the application of the Open Records Law pursuant to KRS 61.878(1)(h).
In this factual situation a person's employment with the Commonwealth has been terminated for many reasons. Among those reasons given for the termination were the employee's alleged violation of an Acting Director's written instructions of September 21, 1984 and the employee's alleged violation of instructions given by a supervisor at a meeting of all officers on October 4, 1984. If an employee can be disciplined or his employment terminated for violations of instructions of supervisory personnel, those instructions are more than preliminary. They represent more than mere proposals, suggestions or personal opinions of persons employed by the Transportation Cabinet. Those instructions have taken on the aura of final actions by the Cabinet relative to matters of personnel and employment. Employees are required to adhere and conform to the instructions and are subject to disciplinary action for violations of those instructions.
Thus, it is the opinion of the Attorney General that your denial of the request to your denial of the request to inspect the written instructions of Acting Director Moore, dated September 21, 1984, to Mr. Scott, relative to employee conduct, and your denial of the request to inspect the instructions of Cpt. Frazier of October 4, 1984 (if written) to Mr. Scott, relative to employee conduct, were improper as such instructions, if written, are not intraoffice memoranda and preliminary recommendations excluded from the application of the Open Records Law pursuant to KRS 61.878(1)(h).
As required by statute, a copy of this opinion is being sent to the requesting party. If you decide not to comply with this opinion you may initiate further proceedings pursuant to KRS 61.880(5).