Request By:
Dr. Jack C. Blanton
Vice Chancellor for Administration
and Official Records Custodian
University of Kentucky
110 Administration Building
Lexington, Kentucky 40506-0032
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
James L. Thomerson, Esq., has appealed to the Attorney General pursuant to KRS 61.880, on behalf of his client, the Lexington Herald-Leader Company, your partial denial of the request of Mr. David Green to inspect certain documents in the custody of the University of Kentucky.
Mr. Green, Projects Editor of the newspaper, in a letter to you, a copy of which has not been made available to this office, requested in part that he be furnished with access to correspondence between yourself or other University administrators and Mr. Cliff Hagan or Mr. Eddie Sutton or anyone in the Athletic Department regarding basketball camps held on campus.
You responded to Mr. Green in a letter dated August 9, 1988, and the pertinent part of that letter as far as this appeal is concerned is set forth as follows:
"This is in response to your Open Records request received in my office August 4, 1988.
"(1) 'Correspondence since May 1, 1988, between Jack Blanton or other university administrator and Cliff Hagan or Eddie Sutton or anyone in the athletic department regarding basketball camps. This request includes, but is not limited to any correspondence dealing with the feeding of campers. This request includes correspondence originating with any of the parties involved.'
"Response: With respect to this request, you are apparently aware of the fact that I wrote a letter to Cliff Hagan on the subject of basketball camps. I did, in fact, write such a letter, but in my opinion it constitutes a preliminary memorandum within the meaning of KRS 61.878(h) and is thus excluded from the application of KRS 61.870 - KRS 61.884. However, Cliff Hagan's reply to my memorandum does not, in my judgment, fall within the exception and is thus furnished herewith."
In his letter of appeal to the Attorney General Mr. Thomerson challenges the validity of your withholding from the newspaper your letter to Mr. Hagan. He maintains that KRS 61.878(1)(h) does not exempt your letter as a preliminary memorandum. He alleges that your letter does not, based on the facts available to him, involve or constitute preliminary recommendations or a preliminary memorandum in which opinions are expressed. Mr. Thomerson states that your letter is merely an inquiry into events which took place at the men's basketball camp and a request for information relative to several items.
The undersigned Assistant Attorney General contacted University General Counsel John C. Darsie, Esq., by telephone on August 17, 1988, and requested that he provide the Attorney General's Office with a copy of Dr. Blanton's letter to Mr. Hagan. A copy of that letter was received on August 19, 1988.
OPINION OF THE ATTORNEY GENERAL
Among those public records which may be withheld from public inspection in the absence of a court order authorizing inspection are the 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;"
In OAG 87-64, copy enclosed, at page three, we said in part that where departmental memoranda constitute preliminary intra office communications setting forth opinions, observations and recommendations of various departmental personnel and they do not represent the department's final decision or determination or any matter, they may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h).
This office concluded in part in OAG 87-24, copy enclosed, at page four, 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 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.
In OAG 88-32, copy enclosed, at page four, this office said that a public agency could exclude 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.
The undersigned Assistant Attorney General has read and examined a copy of Dr. Blanton's letter to Mr. Hagan, dated June 27, 1988. Contrary to Mr. Thomerson's assertions, the letter is more than an inquiry into events which took place at the men's basketball camp and a request for information relative to several items pertaining to the operation of that camp. The letter in question sets forth Dr. Blanton's preliminary impressions, observations and opinions about various aspects of the operation of the basketball camp. At this point such impressions, observations and opinions are merely those of Dr. Blanton as they do not represent the University's final decision or determination on the matter.
In conclusion, it is the opinion of the Attorney General that the University could properly withhold from public inspection the letter in question as a preliminary intra university communication containing the personal impressions, observations and opinions of a particular official which do not represent the University's final decision or determination relative to the matter.
As required by statute, a copy of this opinion is being mailed to the requesting party, James L. Thomerson, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.