Request By:
Major Bob Stallins
Official Custodian of Records
Kentucky State Police
Information Services Branch
1250 Louisville Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
James E. Hibbard, Esq., on behalf of his client, William A. Smith, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. In his letter to you, dated February 17, 1986, Mr. Hibbard said in part as follows:
"Pursuant to the Kentucky Open Records Act please consider this our formal request for any materials contained in the above named individual's files relative to any reports, written or otherwise, from any official of Winn-Dixie Food Stores. This request is limited to information provided to you by said company on the above applicant.
"It is our position that since personnel files fall under KRS 61.878(1)(a) as determined by OAG 83-329, and since section (1)(a) only covers invasion of privacy; then said records must be furnished pursuant to KRS 61.884."
In your letter to Mr. Hibbard, dated February 27, 1986, you denied the request. You said that in many instances, including this one, the background review or investigation conducted by your agency consists totally of opinions or recommendations made by both the officer conducting the review and the people who were interviewed during the course of the review or investigation. Your letter to Mr. Hibbard included the following statements:
" . . . Contrary to your position that the information that you requested is in a personnel file and falls under KRS 61.878 (1)(a), our background reviews that are conducted on applicants for the position of trooper are not considered by us to be a personnel file. The background information is contained within a memorandum from the officer conducting the background review. Therefore, I base my denial on your reguest on KRS 61.878(1)(h) which allows an exemption for 'Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended; '"
In his letter of appeal to this office, Mr. Hibbard maintains that his client, Mr. Smith, was slandered by a former employer as a result of which he was unable to secure employment with the Kentucky State Police. He states that he seeks only the documentary evidence of the reason stated as to why his client was fired from his job with Winn-Dixie Food Stores.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1)(a), (g) and (h) exclude the following public records from public inspection in the absence of a court order authorizing inspection:
"(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
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"(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 85-135, copy enclosed, we concluded that the public agency's denial of the request to inspect and copy those records in a police investigative file, consisting of interviews with a person's co-workers where those co-workers expressed their personal opinions on a variety of matters, was proper as such material may be excluded from public inspection pursuant to KRS 61.878(1)(a), (g) and (h). It was also noted that memoranda of an evaluative nature have been consistently exempted from public inspection as a protection against an unwarranted invasion of personal privacy. The privacy right protects both the subject of and the creator of the document of evaluation and opinion.
While KRS 61.884 does provide that any person shall have access to any public record relating to him or in which he is mentioned by name, that statute is subject to the provisions and exemptions set forth in KRS 61.878. Thus a person is entitled to inspect a document in which he is mentioned unless that document is exempt from inspection under the provisions of the Open Records Act. If the inspection or disclosure of the document would constitute a clearly unwarranted invasion of the personal privacy of any person (the person preparing the document or the person who is the subject of the document), it is exempt under KRS 61.878(1)(a). In addition, the right to inspect records under KRS 61.884 does not apply if the records contain preliminary drafts, notes and correspondence with private individuals (other than a notice of final action) as set forth in KRS 61.878(1)(g) or if the records constitute preliminary memoranda expressing opinions and preliminary recommendations as set forth in KRS 61.878(1)(h). See OAG 85-69 and OAG 84-249, copies of which are enclosed.
In OAG 85-61, copy enclosed, at page four, we said that the denial of the request to inspect the reports of an investigation was proper under the Open Records Act [KRS 61.878(1)(g) and (h)] as long as the requested reports neither indicated final agency action nor involved preliminary reports incorporated into final agency reports. Furthermore, in OAG 84-298, copy enclosed, we said that tape recordings of employee interviews pertaining to an investigation may be excluded from public inspection as they constitute preliminary notes and preliminary memoranda containing opinions.
As a result of a telephone conversation with you on March 17, 1986, it is the understanding of the undersigned Assistant Attorney General that the memorandum prepared by the officer conducting the background investigation, containing his opinions and recommendations as well as the opinions and evaluations of the persons he interviewed, does not represent a final action by the agency but is merely submitted to a personnel selection board which actually determines who is selected by the agency as a trooper candidate.
Before concluding, we direct your attention and that of the requesting party to OAG 85-119, copy enclosed, at page three, where we said in part that, generally, a public record is either open to public inspection by any person or it may be withheld from all persons under one or more of the exceptions set forth in KRS 61.878. This often means that the Open Records Act cannot be used in lieu of the discovery procedures provided by the Rules of Civil Procedure.
It is, therefore, the opinion of the Attorney General that the public agency's denial of the request to inspect the memorandum of the officer conducting a background review or investigation of the applicant for the public agency, which contained the investigating officer's opinions and recommendations as well as the opinions and evaluations of the people he interviewed, was proper as such material may be excluded from public inspection pursuant to KRS 61.878(1)(a), (g) and (h).
As required by statute, a copy of this opinion is being sent to the requesting party, James E. Hibbard, Esq., who has the right to challenge it in circuit court pursuant to KRS 61.880(5).