Request By:
Walter L. Cato, Jr., Esq.
539 W. Market Street
Suite 300
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Kimberly K. Greene has appealed to the Attorney General pursuant to KRS 61.880 your denial of her client's request to inspect certain records in the city's custody. She has appealed on behalf of Mr. Alan Judd, a reporter for The Courier-Journal, who had requested that you permit him to inspect a document prepared by Shively Police Chief Benjamin O. Keutzer, reporting the findings of his investigation into the application for an adult entertainment license for the Bourbon Street Lounge and the ownership of that and other establishments along Seventh Street Road.
In your letter to Mr. Judd, dated February 22, 1985, you stated that the investigation was conducted by the police chief at the city council's request in connection with the council's review of an adult entertainment license application by the Bourbon Street Lounge. Although you indicated that you wanted to discuss the matter further with the police chief and the city council, we construe your letter as denying the request to inspect the records. Your "preliminary opinion" cited KRS 61.878(1)(a), (f) and (g) and the case of
City of Louisville v. Courier-Journal, Etc., Ky. App., 637 S.W.2d 658 (1982) in support of the decision to deny the request to inspect the records.
Ms. Greene's letter states that none of the statutory provisions cited in your letter are applicable. She maintains in part that the report of the police chief is a final report rather than a preliminary report and that the report was discussed at a public council meeting and is, therefore, not exempt from disclosure as a clearly unwarranted invasion of personal privacy.
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 accident.
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 84-337, copy enclosed, we dealt with reports prepared for a public agency. It was argued that the reports were no longer preliminary as they constituted final reports. We said that although the reports were final reports to the public agency, they remained preliminary and exempt from public inspection because they contained opinions and recommendations which the agency could accept or disregard in taking final action.
While we said in OAG 84-118, copy enclosed, that the records involved were exempt from public inspection under KRS 61.878(1)(g) and (h) as preliminary reports, we also made the following point:
". . . 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 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 the Open Records Act pursuant to KRS 61.878(1)(g) and (h) so long as the requested document neither indicates final municipal action nor involves a preliminary report incorporated into a final municipal report.
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).