Request By:
Mr. James D. Collins
Administrator
Owensboro-Daviess County Hospital
P.O. Box 2799
Owensboro, Kentucky 42302
Opinion
Opinion By: Frederic J. Cowan; Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Joseph R. Ulber, Sr., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various records in the custody of the Owensboro-Daviess County Hospital.
In a letter to you dated April 12, 1988, Mr. Ulber requested that he be permitted to inspect and review documents consisting of:
1. The minutes of the personnel committee meeting held on April 18, 1986, and all records and evidence taken into consideration during the course of that meeting;
2. The minutes of the October 26, 1987, meeting of the Board of Managers;
3. The minutes of the January 25, 1988, meeting of the Board of Managers and all records and data pertaining to sales tax savings as reported at that meeting;
4. All manner of material generated as a result of his complaint against the hospital.
Mr. Ulber further stated that his request concerns not only the transcribed minutes of meetings but any and all tapes, discs, recordings or other materials the hospital has in its custody or possession.
The attorney for the Owensboro-Daviess County Hospital, Ronald M. Sullivan, Esq., advised Mr. Ulber in a letter dated April 21, 1988, that he was enclosing a copy of your letter to Mr. Ulber, dated April 20, 1988. Mr. Sullivan said your reply contains a denial involving preliminary matters [KRS 61.878(1)(h)] and confidential communications between an attorney and his client.
In your letter of April 20, 1988, to Mr. Ulber, you advised him that while he was permitted to review the minutes of the meeting of April 18, 1986, other information leading up to the committee's final decision was preliminary and could be withheld from public inspection. The tapes of the meeting ere also withheld from his inspection as they contained preliminary information as well as advice from the hospital's attorney to various hospital committee members.
You further told Mr. Ulber that he was permitted to review the minutes of the meeting of October 26, 1987. He was permitted to make tape recordings from the tapes of that meeting except for the closed sessions of the meeting. Mr. Ulber was allowed to review the minutes and tapes from the meeting of January of 1988. No other material was available concerning that particular meeting. Finally you said that Mr. Ulber's fourth request is the same as the first request.
Mr. Ulber wrote Mr. Sullivan a letter, dated April 28, 1988, in which he took exception to Mr. Sullivan's letter of April 21, 1988, and Mr. Sullivan's reliance upon KRS 61.878(1)(h) as a bar to disclosure of certain documents. Mr. Ulber in a letter to you, dated May 2, 1988, set forth his dissatisfaction with your letter of April 20, 1988, to him.
In what this office is considering to be Mr. Ulber's letter of appeal, a letter to the Attorney General dated April 25, 1988, he expresses his disagreement with the positions taken by both you and Mr. Sullivan relative to his requests to inspect and copy documents. He maintains that KRS 61.878(1)(h) is not applicable.
OPINION OF THE ATTORNEY GENERAL
There is no indication or allegation that the Owensboro-Daviess County Hospital is exempt from the terms and provisions of the Kentucky Open Records Act [KRS 61.870 to KRS 61.884]. If it is, therefore, a "public agency' as the term is defined in KRS 61.870(1), then the materials and documents in question would be subject to public inspection unless excepted by one of the statutorily recognized exceptions to public inspection.
Among the public records which may be withheld from public inspection in the absence of a court order authorizing inspection are those records mentioned 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;"
If the materials and documents involved here constitute preliminary intra-office communications setting forth opinions, observations and recommendations of various agency personnel and they do not represent the public agency's final decision or determination on any matter, then they may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). See OAG 87-64, copy enclosed.
In OAG 87-10, copy enclosed, at page four, we referred to two judicial decisions and an earlier opinion of this office. We concluded that a public agency's denial of a request to inspect documents consisting of preliminary notes, preliminary drafts of letters, reports and other documents and preliminary memoranda which do not represent final action of the public agency, was proper as such materials may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
In OAG 79-333, copy enclosed, we considered whether a record consisting of a tape covering a portion of a meeting of a public agency may be excluded from public inspection. The meeting of the agency was taped at the agency's discretion solely to assist the agency's secretary in preparing the official minutes of the meeting. This office concluded that written notes, shorthand notes or tape recordings made during a meeting for the purpose of preparing the official minutes are only preliminary records and may be withheld from public inspection pursuant to KRS 61.878(1)(g). See also OAG 87-44, copy enclosed, at pages three and four.
Finally, we direct your attention to OAG 87-28, copy enclosed, at page five, where we concluded that documents which constitute the work product of an attorney and those that come within the attorney-client relationship may be excluded from public inspection. See the Kentucky Rules of Civil Procedure [CR 26.02(3)]; KRS 447.154; KRS 61.878(1)(j); United States v. Amerada Hess Corp., 619 F.2d 980, 987 (3rd Cir., 1980); Upjohn Company v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).
Thus, in conclusion, it is the opinion of the Attorney General that the public agency properly excluded from public inspection those records and documents consisting of preliminary materials which set forth opinions, observations and recommendations of various board members and which do not represent the public agency's final decision. In addition, a tape recording made during a meeting by the public agency to assist in the preparation of the official minutes may be excluded from public inspection as a preliminary document. Also, documents which constitute the work product of an attorney and those which come within the attorney-client relationship may be excluded from public inspection.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Joseph R. Ulber, Sr., who has the right to challenge it who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.