Request By:
Mr. Charles A. Cotton
Commissioner
Department of Housing, Buildings and Construction
The 127 Building
U.S. Highway 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mrs. Mary T. Kelly has appealed to the Attorney General pursuant to KRS 61.880 your denial of a portion of her request to inspect various records in the custody of your department. She describes the records in question as "any and all memoranda, communications, records or information gathered by Mr. Carvon Hudson or other employees of the department concerning my work habits and/or job performance."
In your letter to Mrs. Kelly, dated March 27, 1986, you advised her that copies of five categories of requested documents would be provided. As to the records which would not be made available for her inspection you replied as follows:
"With regard to item #6 of your letter, the record relating to the recent disciplinary action is available to you for inspection in this office. You must contact Judith Walden, General Counsel, to notify her of the time you wish to make the inspection of the record.
"Any papers which amount to preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended, will be excluded from your review, pursuant to KRS 61.878 (1)(h). Thus, interoffice memoranda and reports generated during the investigation of your behavior will be excluded; the final report is compiled in your letter of March 24, 1986."
In her letter of appeal to this office Mrs. Kelly requests us to review the letters referred to above and determine whether your Department can withhold the documents categorized as item #6. She also mentions KRS 61.884 concerning a person's access to a public record relating to himself.
The undersigned Assistant Attorney General attempted to contact you by telephone on April 15, 1986, and, in your absence, talked with Judith Walden, Esq., the Department's General Counsel. During the afternoon of April 15, 1986, I came to your Department and personally reviewed the 29 pages of documents which have been withheld from Mrs. Kelly's inspection. Those documents consist of notes, intra-office memoranda and investigative type reports setting forth the opinions, observations and recommendations of various personnel of the Division of Fire Prevention in the Department of Housing, Buildings and Construction. They are preliminry in nature as the final action of the Department relative to the disciplinary proceedings pertaining to Mary T. Kelly was set forth in your letter to Mrs. Kelly, dated March 24, 1986, and designated "Notice of Suspension and Dismissal."
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; "
In connection with the application of KRS 61.878(1)(g) and (h), the Court said in part in
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659 (1982) 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 86-5, copy enclosed, this office concluded that the public agency's denial of a 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 intra-office memoranda containing preliminary notes and personal opinions and do not represent notice of a final action or decision by the public agency.
This office concluded in OAG 86-22, copy enclosed, that the public agency's denial of a request to inspect and copy records pertaining to a professional standards internal affairs investigation of a former state trooper, consisting in part of preliminary drafts and notes, preliminary memoranda and reports containing the opinions, recommendations and observations of the investigating officers was proper under the Open Records Act as such reports and documents may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
In OAG 85-138, copy enclosed, this office concluded that the public agency's denial of the request to inspect a report of the Management Evaluation of the State Police's Auto Theft Section, prepared by the State Police Inspections and Evaluation 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 the State Police's final report or decision on the matter.
KRS 61.884, referred to by Mrs. Kelly in her letter of appeal, provides that "Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878." KRS 61.878, of course, sets forth those documents which a public agency may exclude from public inspection in the absence of an order of a court of competent jurisdiction authorizing inspection.
A person, therefore, 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. The right to inspect public records under KRS 61.884 would not apply if the records consist of 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 recommendations as set forth in KRS 61.878(1)(h). The preliminary status of the documents in question exempts them from inspection even by a person who is mentioned in such documents. See OAG 86-19, OAG 85-69, and OAG 84-249, copies of which are enclosed.
Before concluding we direct your attention and that of the requesting party to OAG 86-22, copy enclosed, at page six, 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 preocedures 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 and copy those documents consisting of 29 pages of notes, intraoffice memoranda and investigative reports, setting forth the opinions, observations and recommendations of various agency personnel, which do not represent the agency's final decision on the disciplinary matter involving the agency's former employee, was proper under the Open Records Act as such documents may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
As required by statute a copy of this opinion is being sent to the requesting party, Mrs. Mary T. Kelly, who has the right to challenge it in circuit court pursuant to KRS 61.880 (5).