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
Mark H. York has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. He describes the materials in question as follows:
"1) Report of an investigation (in-house) into the Division of Real Property and/or Phillip Bray.
"2) Examination of items listed in Bill of Sale, June 7, 1984, of agreement with Ace Distributors and Pendleton Brothers, including but not limited to the Retail Merchandise listed on back." (The merchandise included jackets, caps, T-shirts, jeans, western shirts and western boots. )
In your letter to Mr. York dated March 1, 1985 you advised him that his request to inspect documents was denied. You stated that the request to inspect the report of an investigation (in-house) into the Division of Real Property and/or Phillip Bray "is excluded by virtue of KRS 61.878(1)(g) and (h) as being preliminary drafts, notes, correspondence and/or preliminary drafts, notes, correspondence and/or preliminary recommendations and memoranda in which opinions are expressed or policies formulated or recommended. " You also cited OAG 84-342, OAG 82-263 and OAG 84-19 in support of your decision on this particular point.
You further stated in your letter of March 1, 1985 to Mr. York that his request to examine the physical items listed on Form B-010-1 does not fall under the Open Records Law. In your opinion the definition of "public records" in KRS 61.870(2) does not include the items which Mr. York sought to inspect.
OPINION OF THE ATTORNEY GENERAL
Among the public records excluded from the application of the Open Records Act and subject to inspection only upon an order of a court of competent jurisdiction 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;
In OAG 84-298, copy enclosed, we said that the tape recordings of employee interviews taken during the investigation of internal criminal allegations against an employee are preliminary to any final action taken by the city. They are, therefore, exempt from public inspection (except upon court order) under KRS 61.878(1)(g) and (h). They would, however, be open to public inspection if they later become incorporated into any final action taken by the investigating public agency.
Where the county judge/executive had requested the county attorney to investigate alleged misuse of county road equipment by an elected magistrate, the county attorney's report was exempt from public inspection pursuant to KRS 61.878(1)(h). The report was not indicative of any final action taken by the fiscal court and as such was a preliminary memorandum prepared by the county attorney in the course of his investigation. See OAG 83-469, copy enclosed.
In OAG 82-339, copy enclosed, we said the report of an investigation was considered to be a report made by a state detective to his superior officer and in the nature of an intraoffice memorandum, a preliminary memorandum in which opinions were expressed along with a report of actions taken during the investigation of an incident. Your attention is also directed to the case of
City of Louisville v. Courier-Journal, Etc., Ky. App., 637 S.W.2d 658, 660 (1982) where the court said in part as follows:
"In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g) and (h). This does not extend to the complaints which initially spawned the investigation. The public upon request public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon."
In OAG 84-118, copy enclosed, we said that the records involved were exempt from public inspection under KRS 61.878(1)(g) and (h) as preliminary reports. We also emphasized the following:
". . . However, should any of the requested records include final reports indicative of final KSP action or any preliminary reports incorporated into final reports, they are open to public inspection. Exempted material is to be separated from non-exempted material to allow inspection under KRS 61.878(3). . . ."
Thus, it is the opinion of the Attorney General that your denial of the request to inspect the reports of the in-house investigation of the Division of Real Property and Phillip Bray was proper under the Open Records Act pursuant to KRS 61.878(1)(g) and (h) so long as the requested reports neither indicate final agency action nor involve preliminary reports incorporated into final agency reports.
KRS 61.870(2) defines "public records" as follows:
"'Public records' means all books, papers, maps, photographs, cards, tapes, discs, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority."
Mr. York's request to examine items listed in a bill of sale, including such merchandise as jackets, caps, T-shirts, jeans and boots, obviously does not involve books, papers, maps, photographs, cards, tapes, discs and recordings. The statute also refers to other documentary materials and "documentary" is defined in part in Webster's New World Dictionary of the American Language (Second College Edition) as "consisting of, supported by, contained in, or serving as a document or documents."
Since the items requested to be inspected do not involve "public records" as defined in KRS 61.870(2), it is the opinion of the Attorney General that your denial of the request to inspect merchandise listed on a bill of sale was proper under the Open Records Law.
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in court pursuant to KRS 61.880(5).