Request By:
Mr. J. Alex Barber
Director, Division of Waste Management
Department for Environmental Protection
Fort Boone Plaza
18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Frank Boyett has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody. Mr. Boyett has described the documents in question as two memoranda concerning the closure of the old Waverly landfill, the documents having been dated July 10, 1972, and August 14, 1972, and having been sent by Theodore Gibson to Jerry Hurst.
In your letter to Mr. Boyett, dated January 3, 1986, you advised him that the records in question are excluded from public inspection pursuant to KRS 61.878(1)(h) as they are preliminary recommendations.
On January 24, 1986, the undersigned Assistant Attorney General talked by telephone with Mr. Joseph Schmidt of the Enforcement Branch of the Division of Waste Management. He advised that Mr. Gibson and Mr. Hurst were state employees and that the memoranda were preliminary in nature. The memoranda did not represent a final decision relative to the closing of the landfill in question. The state agency never did make a final determination on the matter as the landfill was closed by the city.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of an order of a court of competent jurisdiction permitting inspection 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;"
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 85-138, copy enclosed, this Office concluded that the denial of a request to inspect a report of the Management Evaluation of the State Police's Auto Theft Section, prepared by the State Police Inspections and Evaluations Section, for submission to the Commissioner of the State Police for such final action or decision as he deems appropriate, was proper under KRS 61.878(1)(g) and (h) so long as the report in question neither indicates final action by the State Police nor involves a preliminary report incorporated into a final report by the State Police.
In OAG 85-104, copy enclosed, we said that we have consistently concluded that intraoffice memoranda are exempt from public inspection, especially where the memoranda are preliminary (not evidence of final agency action) and contain opinions of the writers. We further stated in that opinion that the denial of a request to inspect reports of a field inspector relative to her inspections of a landfill operation, containing her observations and opinions, was proper under KRS 61.878(1)(g) and (h) as such reports are intraoffice memoranda containing preliminary drafts, notes and personal observations. Such material is only subject to public inspection (in the absence of a court order) if it constitutes notice of final action of the public agency or is incorporated into the public agency's final report or final decision on the matter.
Therefore, it is the opinion of the Attorney General that your denial of the request to inspect memoranda from an inspector to his supervisor concerning the closing of a landfill operation was proper under KRS 61.878(1)(g) and (h) as the documents constitute intraoffice memoranda containing preliminary notes and personal observations and do not represent notice of a final action or decision of the public agency.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Frank Boyett, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).