Request By:
Robert J. Ehrler, Esq.
Natural Resources and Environmental
Protection Cabinet
Office of General Counsel
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Charles Lee Thomason, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy various records and documents in the possession of the Natural Resources and Environmental Protection Cabinet.
In a letter to the Cabinet, dated May 13, 1988, Mr. Thomason requested copies of remedial investigation reports, the list of persons notified by Kentucky as being potentially responsible parties, the Maxey Flats Decommissioning Plan and the lists of documents in agency files.
You responded to Mr. Thomason in a letter dated June 6, 1988. You said that if his reference to "remedial investigation reports" means remedial investigation/feasibility study (RI/FS), then that study is underway and is scheduled for completion in December of 1988. Existing drafts of the RI/FS fall within the exception to public inspection set forth in KRS 61.878(1)(g) and will not be released. You advised that there is no list of potentially responsible parties notified by Kentucky as the U.S. Environmental Protection Agency provided such notice. The Cabinet does not maintain a comprehensive list of documents in its files. However, other parties have compiled partial lists of documents and you said you would make available those partial lists along with the 1983 Decommissioning Plan.
In a letter to you, dated July 27, 1988, Mr. Thomason said his request was for copies of the documents rather than an opportunity to inspect them. He took exception to your reliance upon KRS 61.878(1)(g) as he said the material was not correspondence with private individuals. He also modified his earlier request to include public records for Maxey Flats regarding the involvement of Allied Signal Inc., the Bendix Corporation and W.R. Grace Company.
You advised Mr. Thomason, in a letter dated August 2, 1988, that the drafts of the various components of the RI/FS currently being conducted at the Maxey Flats site fall within the exception to public inspection set forth in KRS 61.878(1)(g). Approximately 90 of the potentially responsible parties are conducting the RI/FS pursuant to a consent order with E.P.A. The Cabinet has not released copies of the draft RI/FS to any private parties. The private parties conducting the study do, of course, have draft copies. The final RI/FS will be subject to public release upon its completion in December of 1988.
You further stated that since the Cabinet maintains voluminous records relative to the Maxey Flats site it will be necessary for Mr. Thomason to identify specific documents or categories of documents, relevant time periods, and the nature of the involvement of the companies with which he is concerned, rather than merely referring to public records pertaining to three specific companies.
You also advised Mr. Thomason that you would make arrangements for him to inspect the records subject to public inspection at your offices. You cited KRS 61.874(1) for the proposition that you are not required to mail copies of records in response to a request received by mail.
In his letter of appeal to the Attorney General Mr. Thomason maintains in part that you have misconstrued the provisions of KRS 61.874(1) to the extent that a person must first inspect the records as a prerequisite to obtaining copies of those records. Mr. Thomason, disagrees with the validity of your reliance upon KRS 61.878(1)(g) as he maintains that the drafts of the remedial investigation are not correspondence with private individuals. Finally, Mr. Thomason maintains that he cannot submit a more specific request because he has been denied a list of the contents of the Maxey Flats file and a copy of the 1983 Decommissioning Plan has not been sent to him.
The undersigned Assistant Attorney General talked with you by telephone on August 19, 1988. In addition to furnishing me with copies of all the letters mentioned herein, other than Mr. Thomason's letter of appeal to the Attorney General, you provided some additional background information.
Maxey Flats is a Superfund Site. The site was operated from 1963 until it was closed in 1977. Pursuant to an administrative consent order involving E.P.A. and approximately 90 parties, the E.P.A. is permitting these parties potentially responsible for the problems there to do a study concerning those problems and possible remedies (remedial investigation/feasibility study) . This Maxey Flats Steering Committee, made up of some 90 parties, has generated a series of drafts concerning the study. The study will be completed in December of 1988 and it will be made available to the public at that time.
OPINION OF THE ATTORNEY GENERAL
KRS 61.874(1) provides in part that, "Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all written public records . . . ."
Thus, under the above quoted provision the right to obtain copies is ancillary to the right of inspection and does not stand by itself. While the Open Records Act does not require public agencies to send copies of documents to persons who have not first inspected, them, this office has consistently urged that public agencies be as helpful and cooperative as possible. We have said that a public agency should accommodate requesters whenever it can within the bounds of the efficient operation of its office. Generally, when only one item is requested or a few precisely described items are requested, which are readily available without any special search, it is easier for both the requesting party and the agency if the agency simply answers the request through the mail. See OAG 88-54, copy enclosed, at page five.
Although there is nothing wrong with making a request by mail, the response of the public agency need only state that the records will be made available for inspection at a particular time and place. Such a response would be frequently used when numerous records and documents are involved. See OAG 86-24, copy enclosed.
Therefore, it is the opinion of the Attorney General that the public agency is not mandatorily required to send copies of records by mail to a requesting party when that person has not first inspected those records and then selected the items he wants copied, particularly when numerous records and documents are apparently involved.
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):
"(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;"
The Cabinet has already stated that a copy of the RI/FS will be made available in December of 1988 when it has been completed and submitted to the Cabinet. Various drafts of the study have been received by the Cabinet so far but they have not been released.
In OAG 88-24, copy enclosed, we said that a public official's denial of the request to inspect the draft audit prepared by the E.P.A. and sent to the city is supported in part by the exceptions set forth in KRS 61.878(1)(g) and (h) as the document is a preliminary report containing opinions and observations. The RI/FS is being prepared by approximately 90 independent persons, firms and companies, rather than a governmental entity. The drafts of that document, therefore, are not only preliminary documents as far as the Cabinet is concerned but copies of the drafts received by the Cabinet are correspondence with private parties.
In OAG 85-96, copy enclosed, we concluded that a feasibility report prepared by a private organization for a public entity could be excluded from public inspection pursuant to KRS 61.878(1)(h) as such a report is preliminary in nature, setting forth opinions and recommendations for review and consideration by the public entity. In OAG 83-385, copy enclosed, we said that correspondence from private individuals could be withheld from public inspection pursuant to KRS 61.878(1)(g).
It is, therefore, the opinion of the Attorney General that various drafts generated in connection with the preparation by private persons and firms of the RI/FS may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h).
As to the last point advanced by Mr. Thomason in his letter of appeal, dealing with preciseness in describing the records to be inspected, we refer to OAG 76-375 and OAG 88-54, copies of which are enclosed.
Blanket requests for information on a subject without specifying certain documents need not be honored. If a person cannot describe the records he seeks to inspect with specificity there is no requirement that such records be sought out and made available for public inspection by the public agency. The requesting party has the burden of describing the documents he seeks to inspect with sufficient clarity and preciseness to enable the public agency to locate those documents.
It is, therefore, the opinion of the Attorney General that the public agency properly requested the person seeking to inspect records to furnish additional information in order that specific records might be located. A general reference to records pertaining to the involvement of three companies is insufficient where voluminous records on a project are involved.
As required by statute a copy of this opinion is being mailed to the requesting party, Charles Lee Thomason, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.