Request By:
Sheryl G. Snyder, Esq.
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Donald L. Cox, Esq. has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the possession of your clients, the city of Owensboro and the Owensboro Sewer Commission.
In a letter to you, dated February 24, 1988, Mr. Cox requested that you, "Please make available to me a copy of the draft audit conducted by the Environmental Protection Agency's Inspector General."
You initially contacted Mr. Cox pursuant to a letter dated March 8, 1988, and advised him as follows:
The "draft audit conducted by the Environmental Protection Agency's Inspector General" is exempt from disclosure under subsections (g), (h) and (i) of KRS 61.878(1), absent a court order. Therefore, on behalf of the City of Owensboro and the Owensboro Sewer Commission, we must decline your request to make a copy of the report available to you.
You subsequently wrote Mr. Cox a letter, dated March 21, 1988, and said, "The portion of the Kentucky Open Records Act upon which we rely was cited in my letter to you, namely, KRS 61.878(1)(g), (h) and (i)." You did not send copies of your letters of March 8 and March 21, 1988, to this office.
In his letter of appeal to this office, received March 28, 1988, Mr. Cox said he learned that the Environmental Protection Agency [EPA] had prepared an audit of the Owensboro Sewer Commission and had submitted a draft audit to the city. Mr. Cox maintains that your letters to him did not set forth how the exceptions authorizing withholding of the records applied to the records you withheld. He further maintains that the exceptions to public inspection you cited [KRS 61.878(1)(g), (h) and (i)] are not applicable to his specific request.
You replied to Mr. Cox's letter in a letter to the Attorney General dated March 30, 1988. In your opinion, the exceptions to public inspection set forth in KRS 61.878(1)(g) and (h) are applicable and you cited
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982) and OAG 84-337 in support of your position. You further maintain that the exception to inspection set forth in KRS 61.878(1)(i) is applicable and you cited 5 U.S.C. § 552(b)(5) and
Russell v. Department of the Air Force, 682 F.2d 1045 (D.C. Circuit 1982).
In its letter to the city which accompanied the document in question you state that the EPA encouraged the city not to release it because "it is currently in the draft review stage and does not necessarily represent our final position on the issues involved." You also wrote that Mr. Cox unsuccessfully attempted to secure the draft audit from the EPA.
OPINION OF THE ATTORNEY GENERAL
At the outset we direct your attention to KRS 61.880(1) and (2) setting forth the duties and obligations of a public agency in regard to a request to inspect public records. We trust you will comply with those requirements in the future.
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those records described in KRS 61.878(1)(g) and (h) as follows:
(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."
At page 660 of its opinion in the City of Louisville case, supra, the Court summarized as follows:
"In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g) and (h). This does not extend to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon."
Furthermore, in
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953, 956 (1983), the court said that if letters, correspondence and reports are merely internal preliminary investigative materials, they are exempt from public inspection.
On numerous occasions this office has attempted to apply the provisions of KRS 61.878(1)(g) and (h) to requests to inspect and copy public records of public agencies to determine if the records requested were properly withheld. See OAG 84-337, OAG 87-24 and OAG 86-78, copies of which are enclosed, as well as the other opinions cited therein.
For example, a report prepared by a private company for a city concerning plans for economic development was considered preliminary because it contained various opinions and suggestions which the city ultimately could accept or reject in making its final determination regarding the matter. (OAG 84-337). A letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to how the Board should handle a particular matter is a preliminary document and not subject to public inspection unless incorporated into or made a part of the Board's final decision on the matter, (OAG 87-24). A police internal affairs investigative report may be excluded from public inspection as a preliminary document where the report is sent by the investigating unit to the appropriate person or section in the agency for a final determination and decision, (OAG 86-78).
KRS 61.878(1)(i) provides that, "All public records or information the disclosure of which is prohibited by federal law or regulation" shall be excluded from public inspection in the absence of a court order authorizing inspection. The Federal Freedom of Information Act, 5 U.S.C. § 552(b)(5), provides that inter agency or intra agency memoranda or letters which would not be available by law to a party other than an agency in litigation with an agency may be excluded from public inspection. In connection with material made confidential by the enactment of federal statutes see OAG 87-67 and OAG 84-273, copies of which are enclosed.
In conclusion it is the opinion of the Attorney General that, although your initial response to the requesting party should have followed the requirements of KRS 61.880(1) and a copy of your letter of denial should have been sent to the Attorney General pursuant to KRS 61.880(2), your denial of the request to inspect the draft audit prepared by the Environmental Protection Agency and sent to the city is supported by the exceptions to inspection set forth in KRS 61.878(1)(g), (h) and (i) as the item in question is a preliminary document containing opinions and observations.
As required by statute a copy of this opinion is being sent to the requesting party, Donald L. Cox, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.