Request By:
Ms. Joanie Abramson Mueller
Kentucky Parole Board Member
Kentucky Parole Board
Corrections Cabinet
State Office Building, Fifth Floor
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Kimberly K. Greene, Esq., legal counsel for The Courier-Journal newspaper and one of its reporters, Mr. Andrew Wolfson, has appealed to the Attorney General pursuant to KRS 61.880 your denial of Mr. Wolfson's request to inspect certain records of the Kentucky Parole Board.
In a letter to you, dated March 26, 1987, Mr. Wolfson stated that he would like to obtain a copy of any correspondence from public officials relative to the parole of Eric Zapata or a copy of any memo or document indicating a telephone call from a public official regarding this particular matter. Mr. Wolfson's letter also contained the statement that while KRS 61.878(1)(g) excludes from disclosure "correspondence with private individuals," there is no exemption for correspondence from a public official.
Your letter to Mr. Wolfson, dated March 30, 1987, a copy of which should have been sent to the Attorney General pursuant to KRS 61.880(2), advised him that his request was being denied. You based your decision to deny Mr. Wolfson's request upon the provisions of KRS 61.878(1)(h) which provide in part that public documents consisting of "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended" may be excluded from public inspection.
In her letter of appeal to this office dated April 8, 1987, Ms. Greene took exception to your reliance upon the provisions of KRS 61.878(1)(h). In her opinion, the phrase "preliminary recommendations and preliminary memoranda" contemplates "documents prepared by the staff of the decision-making entity, which facts and information are assimilated and recommendations are made based upon those facts and information." Ms. Greene further states that KRS 61.878(1)(h) does not exempt from disclosure unsolicited correspondence or information from public officials not connected with the Parole Board and any correspondence received from public officials concerning the parole of Eric Zapata is not exempt from public disclosure.
The undersigned Assistant Attorney General talked with you by telephone on the afternoon of April 13, 1987. You stated that the Parole Board frequently receives letters about people who are under consideration for parole and these letter writers set forth their opinions relative to the merits (or lack thereof) of paroling the person in question. Letters are received from persons in the public and private sectors.
In connection with Eric Zapata, who was in fact paroled in December of 1986 as an early parole consideration case, you advised by telephone that the only letter or correspondence in his file from a public official is a letter from a member of the judiciary. The only other document in the file pertaining to a public official is a note or memorandum you prepared concerning a telephone conversation you had with another public official which contained some comments about the call and the caller's opinions relative to the possible parole of Eric Zapata.
OPINION OF THE ATTORNEY GENERAL
While both parties apparently agree that the provisions of KRS 61.878(1)(g) relative to "correspondence with private individuals" cannot be utilized to exclude the documents in question from public inspection, there is disagreement as to whether any of the other exceptions to public inspection may be invoked, particularly those set forth in KRS 61.878(1)(h).
KRS 61.878(1)(h) provides that among those public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described as:
"Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended; "
The only letter or correspondence in the agency's file from a public official is a letter from a member of the judiciary setting forth the judge's opinion as to the merits of paroling the person. The decision as to whether to parole the person is, of course, made by the Kentucky Parole Board.
In OAG 81-285, copy enclosed, we dealt with a report, prepared by a committee of scientists at a public university, prepared by a committee of scientists at a pulbic university, which was to be presented to the university president. The committee was an external ad hoc panel with no authority to take final action on the matter being studied. It expressed its findings, opinions and recommendations to the university president and only he could take final action. He would not have to follow the recommendations made by the committee. The committee's report was considered by this office to be a preliminary memorandum under KRS 61.878(1)(h).
In OAG 85-96, copy enclosed, this office concluded that a city's denial of a request to inspect a realty company's feasibility report on the construction of an office building on city owned land was proper under KRS 61.878(1)(h). The report, while final from the standpoint of the realty company, was preliminary from the city's standpoint as it set forth opinions and recommendations for review and consideration by the city relative to a final decision on the matter.
We also direct your attention to OAG 85-135, copy enclosed, where we concluded that an agency's denial of a request to inspect documents in a file consisting of interviews with a person's co-workers in which those co-workers expressed their opinions on a variety of matters was proper under the exceptions to public inspection.
This office does not concur with Ms. Greene's position that a document of a public official not directly associated with the Parole Board cannot be considered as a preliminary document in a parole determination matter. The court, in
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953, 956 (1983) said that if letters, correspondence and reports are merely internal preliminary investigative materials they are exempt from public inspection.
Thus, it is the opinion of the Attorney General that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether the Board should or should not grant a parole is a preliminary document expressing personal opinions and recommendations and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter.
The only other document in the file pertaining to a public official is a note or memorandum you prepared concerning a telephone conversation you had with another public official which contained some comments about the call and the caller's opinion relative to the possible parole of Eric Zapata. After listening to your description of the telephone memorandum, the document involved, rather than being a normal telephone business record, would appear to be a kind of intra-office memorandum.
In OAG 86-5, copy enclosed, this office upheld a public agency's refusal to permit the inspection of intra-office memoranda containing preliminary notes and personal observations which did not represent notice of final action or a final decision by the public agency. Also in OAG 85-29, copy enclosed, we concluded that intra-departmental memoranda in which opinions are expressed and recommendations are made and which do not express final agency action are preliminary in nature and may be excluded from public inspection pursuant to KRS 61.878(1)(h).
It is, therefore, the opinion of the Attorney General that a note or memorandum pertaining to a telephone call between agency personnel and a public official, containing personal opinions and observations and not indicative of the Parole Board's final decision concerning a particular parole consideration case, is a preliminary intra-office memorandum which may be excluded from public inspection pursuant to KRS 61.878(1)(h).
As required by statute, a copy of this opinion is being sent to the requesting party's legal counsel, Kimberly K. Greene, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) .