Request By:
Mr. Bedford L. Walker
District Director
Green River District Health Department
P.O. Box 2199
Owensboro, Kentucky 42302-2199
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Anthony Smithson has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy various documents in the custody of the Green River District Health Department.
In a letter to you dated July 18, 1987, Mr. Smithson requested that he be permitted to inspect records which contain forms CHPS-749 and CHPS-753 completed by the seven counties of your district between April 1, 1987, and July 15, 1987. These records involve the evaluation of proposed building sites relative to the possible installation of private sewage systems.
You replied to Mr. Smithson in a letter dated July 21, 1987. In connection with his request to inspect all the CHPS-749 and CHPS-753 forms filed between April 1, 1987, and July 15, 1987, you advised him that his request was being denied. In support of your decision you cited the exceptions to public inspection set forth in KRS 61.878(1)(g) and (h). You said the documents Mr. Smithson requested to inspect are considered tentative in nature and at this time do not represent a final determination or action by the health department. When the final action has been taken (the permit has been issued) the requested documents will be made available for public inspection.
Mr. Smithson's letter of appeal to this office has challenged your handling of his request to inspect documents. He maintains that the documents requested (CHPS-749, application for site evaluation, and CHPS-753, report of site evaluation) are not preliminary documents. The site evaluation document represents final action and restricts the conditions for approval of that site at a later date. He also refers to sections of the Kentucky Administrative Regulations, 902 KAR 10:085.
The undersigned Assistant Attorney General telephone you on August 26, 1987, regarding Mr. Smithson's request to inspect the documents in question. You put me in contact with Mr. Tom Webb, Director of Environmental Services for the Green River District Health Department.
He said that a permit is needed before a private sewage system can be installed. Before a permit is issued an inspector makes an on site inspection of the property. The property owner fills out a form requesting that an inspector be sent. An on site inspection is then performed by an authorized inspector. He has a check list of items to look for and evaluate and he also includes his observations and opinions relative to certain conditions at the inspection site. The next step in the process is for the home owner to get an engineer or someone to perform a percolation test and the data from that test is sent to the health department. A decision is then made as to whether a permit will be issued and at that time all of the documents and records concerning the permit process are made available for public inspection.
OPINION OF THE ATTORNEY GENERAL
Among those records which a public agency may exclude from public inspection in the absence of a court order authorizing inspection are those set forth 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 OAG 86-58, a copy of which is enclosed, at page three, this office concluded that a public agency acted within the provisions of the exceptions to public inspection [KRS 61.878(1)(g) and (h)] when it denied the request to inspect and copy various public records because those records consisted of intraoffice 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 agency.
We concluded in OAG 86-5, copy enclosed, at page four, that the 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 intraoffice memoranda containing preliminary notes and personal observations and do not represent notice of a final action or decision of the public agency.
In OAG 85-126, copy enclosed, at page four, we said that the public agency's denial of a request to inspect documents described as investigatory documents, memoranda, notes and preliminary recommendations of agency personnel was proper as such materials may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
The documents which the requesting party seeks to inspect at this time may be considered to be preliminary documents as they do not represent the agency's final decision as to whether a permit will issue. Both the application for site evaluation document and the inspector's report of the site evaluation are necessary steps in the process to obtain a permit to install an on site sewage disposal system. However, other steps are necessary and after the health department has collected and analyzed all the necessary and pertinent material, it then communicates with the applicant as to whether the permit will issue.
A permit does not issue and the health department has not taken final action on the permit application merely because those steps involving the application for site evaluation and the report of the site evaluation have been completed. Those documents do not indicate final agency action relative to the issuance of a permit.
It is, therefore, the opinion of the Attorney General that the public agency acted properly in denying at this time the request to inspect and copy documents pertaining to the obtaining of a permit to install a sewage disposal system as such documents are not indicative of the agency's final decision as to whether a permit will issue and are merely preliminary documents which constitute part of the process to obtain a permit at some future time.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Anthony Smithson, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).