Request By:
Frank X. Quickert, Jr., Esq.
Director of Law
City of Louisville
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Larry C. Ethridge, Esq. has appealed to the Attorney General pursuant to KRS 61.880 your denial of the request of his client, Raleigh Baker Associates, Inc., to inspect certain public records in your custody. The records in question are described as the Colwell Realty feasibility report on the construction of a high-rise office building on city-owned property south of Market Street between Sixth and Seventh.
In your letter to Raleigh Baker Associates, Inc., dated June 10, 1985, you stated that the request for a copy of the report by Colwell Realty on city owned land, south of Market between Sixth and Seventh is denied. You cited KRS 61.878(1)(g) and (h) in support of your decision.
In his letter of appeal to this Office Mr. Ethridge maintains that the exceptions to public inspection which you relied upon do not apply to the document in question. It is his understanding that Colwell Realty developed the feasibility study under a $36,000 contract with the city of Louisville in conjunction with the issuance of the city's Request for Proposals No. P-16056, concerning the development of an office building or group of buildings on city owned land.
In your letter of June 12, 1985 to this Office, in response to Mr. Ethridge's letter of appeal, you stated that Colwell Realty is under contract to assist the city in assessing the feasibility of developing a city-owned lot as a privately owned high rise office structure. The information submitted so far is preliminary and contains recommendations and opinions for review by the city. You also said that the information in question was not used as a basis for the Request for Proposal No. P-16056, which is a public document and was publicly advertised.
Opinion of the Attorney General
Among the public records which are excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884) and subject to inspection only upon an order of a court of competent jurisdiction are those dealt with 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;
"(b) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In OAG 82-450, copy enclosed, the record requested was the "Development Potential Analysis, Ormsby Village, Lynwood Properties, Jefferson County, Kentucky" prepared for Jefferson County by Real Estate Research Corporation. This Office concluded that the document in question was excluded from public inspection under KRS 61.878(1)(h):
"This particular document is almost entirely opinion and recommendations. While it is probably a final report of the corporation employed by Jefferson County to analyze the potential of the Ormsby Village property, it is preliminary in that the county, if it chose to do so, could have other analyses made for its consideration."
In OAG 84-337, copy enclosed, the record requested was the completed report of SRI International of Menlo Park, California on plans for future economic development in Louisville. This Office said that the report was excluded from public inspection under KRS 61.878(1)(h). While the report was a final report to the public agency, it remained preliminary and exempt from public inspection due to the fact that it contained opinions and recommendations which the governmental agency could accept or disregard in taking final action.
Finally, in OAG 81-285, copy enclosed, we dealt with public accessibility to a document titled "Report to the President of the University of Kentucky Summarizing the Findings of the Site Visit to Evaluate the Research Activities of the Tobacco and Health Research Program and Research Institute." That document was considered by this Office to be exempt from public inspection under KRS 61.878(1)(h) because the committee which prepared the report was an external ad hoc panel which had no authority to take final action. Such final action could only be taken by the University President and the report to him was no more than a series of opinions and recommendations.
In conclusion, it is the opinion of the Attorney General that your 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.
As required by statute a copy of this opinion is being sent to the requesting party who has the right to challenge it in circuit court pursuant to KRS 61.880(5).