Request By:
Lt. William Adams
Kentucky State Penitentiary
P. O. Box 128
Eddyville, Kentucky 42038
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Brian K. Moore #31 900, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect a document in your custody or in the custody of the Corrections Cabinet.
In a document dated January 9, 1989 Brian K. Moore requested that he be permitted to inspect a copy of a report prepared by the internal affairs section concerning the theft or loss of three watches belonging to him that had been in the custody of the property room.
The record indicates that you disposed of the matter by advising Mr. Moore in a memorandum as to what action he should take. You further said that the document requested would not be made available for inspection at this time and you cited KRS 61.878.
In his letter of appeal to this office, Brian K. Moore refers to a memorandum, apparently from you, where he states he was advised to file a claim with the Board of Claims and that the document requested would then be filed with that entity. Mr. Moore requested that this office investigate the matter and advise the Warden that he (Moore) should be furnished with a copy of the investigative report.
The undersigned Assistant Attorney General talked by telephone with you on March 17, 1989. I also talked by telephone, on March 20, 1989, with Ms. Cindy Perkins, a paralegal with the Corrections Cabinet (Office of General Counsel), who handles Board of Claims matters for the Cabinet.
As far as I can ascertain, Moore filed a complaint with the Kentucky State Penitentiary concerning the three missing watches. After some kind of a limited investigation by the Internal Affairs Section, headed by yourself, you advised Moore that he should file a claim with the Board of Claims. Apparently, at that point, on the basis of the information obtained, there was some indication that the Penitentiary might have some responsibility in the matter.
If a claim had been filed with the Board of Claims the Penitentiary would have been notified and a complete investigative work up would have been prepared and sent to Ms. Perkins. The Corrections Cabinet would have made a decision as to whether or not the claim would be contested and a copy of the investigative work up would have been sent to Mr. Moore. Since Mr. Moore has not filed a claim with the Board of Claims, a full scale investigative work up has not been done. The Penitentiary and the Cabinet maintain that what has been prepared to date is merely a preliminary internal memorandum which is exempt from public inspection.
OPINION OF THE ATTORNEY GENERAL
At the outset this office directs the public agency's attention to KRS 61.880(1) relative to the required contents of the public agency's response to a request to inspect public documents. It would be most helpful and more in line with the statutory requirements if future responses of the public agency would be more thorough and precise.
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 88-57, copy enclosed, we concluded that a university could properly withhold from public inspection, as a preliminary intra university communication, a letter containing the personal impressions, observations and opinions of a particular person which do not represent a university's final decision or determination relative to the matter. See also OAG 87-64 and OAG 86-58, copies enclosed, and the case of City of Louisville v. Courier-Journal, Etc., Ky. App., 637 S.W.2d 658 (1982), discussed in those opinions, in regard to the interpretation and application of KRS 61.878(1)(g) and (h).
The investigative document in question is, therefore, a preliminary internal memorandum setting forth the opinions, observations and recommendations of a specific employee of the Corrections Cabinet. It does not represent a final investigative report of the Penitentiary or of the Corrections Cabinet nor does it represent any final action or decision of either of them as to the handling of this matter which has not yet been presented to the Board of Claims for investigation and disposition. As a preliminary document, the report may be withheld from public inspection pursuant to the provisions of KRS 61.878(1)(g) and (h).
As required by statute, a copy of this opinion is being mailed to the requesting party, Brian K. Moore, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.