Request By:
Ms. Caroline Patrick Haight
Manager, Permit Review Branch
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
Mark L. Morgan, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various documents in your custody. He has described the records in question as public records relating to the City of Georgetown's landfill in Scott County.
In your letter to Mr. Morgan, dated August 7, 1986, you advised him as follows:
"This letter is to inform you that your request was denied in part. Specifically, your request was denied insofar as the records of the Division of Waste Management consist of preliminary drafts, notes, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, and were not contained in the file you inspected.
These records are authorized to be withheld pursuant to the exceptions set forth in KRS 61.878(1)(g) and (h), and do not constitute final agency action. All other records which do not fit within these categories were made available for your inspection. "
In his letter of appeal to this office Mr. Morgan maintains that your letter of denial does not satisfy statutory requirements. It does not set forth an adequate explanation of how the exception applies to the documents withheld. His information is that KRS 61.878(1)(g) and (h) do not apply to the documents withheld. He has asked this office to review your denial and request copies of the documents which were withheld.
on August 26, 1986, the undersigned Assistant Attorney General visited your Division and personally inspected the files involved, paying particular attention to the papers and documents which had been withheld from Mr. Morgan's inspection.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection by a public agency in the absence of a court order authorizing inspection are those records 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 City of Louisville v. Courier-Journal, Etc., Ky.App., 637 S.W.2d 658, 659 (1982), the Court 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 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 the case of Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983), the court said that if documents such as certain letters, correspondence and reports were merely internal preliminary materials, they would be exempt from inspection under the statute and the principles set forth in City of Louisville, supra.
In OAG 86-32, copy enclosed, this office concluded that the denial of a request to inspect those documents consisting of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda, including intra office memoranda, and other documents not representing final action of the public agency was proper as such materials may be excluded from public inspection under KRS 61.878(1)(g) and (h). In OAG 86-5, copy enclosed, we said that documents constituting intra office memoranda containing preliminary notes and personal observations which do not represent final action or a final decision of a public agency may be excluded from public inspection. See also OAG 86-26, copy enclosed.
In connection with the documents in question the undersigned Assistant Attorney General personally examined three files in your division's custody. The first was Scott County-City of Georgetown, No. 105.01 (1983), the second was Scott County-City of Georgetown, No. 105.01 (through 1982), and the third was Scott County-City of Georgetown, No. 105.01 (Application and Plans). The documents which were excluded from Mr. Morgan's inspection consisted of intra office memoranda containing the opinions, observations and recommendations of various personnel in the division and the department; intra office memoranda containing preliminary notes and drafts; other documents of a preliminary nature and not representing final action of the public agency; communications with private persons.
It is therefore the opinion of the Attorney General that you acted properly in partially denying the request to inspect and copy various public records because those records consist of intra office memoranda and reports of a preliminary nature containing notes and correspondence not indicating final agency action and setting forth the opinions, recommendations and observations of various personnel of the division, department and cabinet. These kinds of 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, Mark L. Morgan, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).