Request By:
William C. Eddins
Director, Division of Air Quality
Natural Resources & Environmental Protection Cabinet
Frankfort Office Park
18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of March 6, 1989, Jim Malone, a staff writer with the Daily Independent at Ashland, Kentucky, has appealed your denial by letter dated March 1, 1989, of his February 27, 1989 request for a "draft copy of a U.S. EPA [Environmental Protection Agency] Air Quality Study in the Ashland, Kentucky/Kenova, West Virginia area that is in the possession of the Kentucky Department for Environmental Protections, Divisions for Air Quality. "
As explained below, we find your agency acted consistent with KRS 61.870 to 61.884. Inspection of the draft study in question could be properly denied pursuant to KRS 61.878(1)(g) as a "preliminary draft."
FACTS
By letter of February 27, 1989, Jim Malone, a staff writer for the Daily Independent, at Ashland, Kentucky, apparently requested from your agency, a "draft copy of a U.S. EPA air quality study in the Ashland Ky./Kenova W.Va., area."
By letter of March 1, 1989, you denied the request, indicating the Department of Law (of the Natural Resources and Environmental Protection Cabinet) had opined that the "internal draft report of this study, prepared by EPA, is outside the scope of the Open Records Law."
Your denial letter also cited the fact that your agency has entered into a memorandum of agreement with the EPA, a part of which requires that the agency "abide by Federal Regulations on releasing documents to the public."
You also indicate that since the report on the air study is classified by EPA as a draft document, and the agency has been asked not to release it, the request for a copy of the document is denied.
Attached to your denial letter was a copy of a January 6, 1989, U.S. EPA letter, transmitting the study in question to the Division for Air Quality. That letter expressly indicated the document in question was an "internal draft report, " and asked that the report and the information contained therein "not be released, cited, or quoted to anyone other than the reviewers of the report."
By letter of March 6, 1989, Mr. Malone appealed your denial, stating, inter alia, that the "EPA's argument that this is an 'internal draft report' is obviously incorrect because they have released a copy to a state agency for review."
OPINION OF THE ATTORNEY GENERAL
Pursuant to KRS 61.878(1)(g), public records that are "preliminary drafts" are ". . . excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction."
The U.S. EPA, in transmitting the draft report to Kentucky's Division for Air Quality specifically termed the instrument a "draft report. " The EPA requested review of the report, and written comments, and indicated a meeting would be scheduled to discuss the draft. Under these facts the report is clearly a preliminary draft. It does not lose that character by having been submitted for review and comments of a state agency. The Division of Air Quality can thus properly withhold the report from inspection on the ground it is a preliminary draft within the meaning of KRS 61.878(1)(g).
You promptly responded to a request for public records, denied access on the ground, in part, that the report sought was a "draft document," and forwarded a copy of your denial to the Attorney General, as required by statute. To such extent, your agency acted consistent with KRS 61.870 to 61.884.
While you based denial of inspection on the substantive ground, in part, that a record sought was a "draft document" which is consistent with KRS 61.878(1)(g), KRS 61.880, requires a statement of the "specific exception" authorizing withholding of a record (as well as a brief explanation of how the exception applies to the record withheld). This language can be taken as requiring citation of the statutory exception by number (e.g., 61.878(1)(g)). This is probably the better practice. Nonetheless, I believe your agency acted consistent with KRS 61.870 to 61.884.
In the course of verifying "draft status" of the report or study in question, I contacted Mr. Roger Pfaff, of the U.S. Environmental Protection Agency, Atlanta (404-347-2904). Mr. Pfaff advised the report in question was indeed a preliminary draft. He also indicated a draft copy was tentatively scheduled for public release by the EPA in early May (1989).
As required by statute, a copy of this opinion is being sent to Mr. Jim Malone of the Daily Independent, who may have rights pursuant to KRS 61.880 and 61.882 to appeal the findings of this opinion.