Request By:
Patricia S. Tincher
Fileroom Supervisor
Division for Air Quality
Natural Resources and Environmental Protection Cabinet
Frankfort Office Park
18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
Jack C. Bender, an attorney representing Ashland Petroleum Company, by letter of 9 March 1989, has appealed your denial of his request for access to a legal memorandum of the Natural Resources and Environmental Protection Cabinet.
FACTUAL BACKGROUND
Mr. Jack C. Bender, an attorney representing Ashland Petroleum Company (Ashland), by letter of 27 February 1989, requested inspection of a "legal opinion provided by the Cabinet's Department of Law to the Division for Air Quality which is referenced in the attached letter to Mr. Thomas Gale dated May 20, 1988." Mr. Gale is the Administrative Superintendent for Ashland. The letter was from Mr. William C. Eddins, Director of the Cabinet's Division for Air Quality, and as an agency action prescribed a change in the method of monitoring and reporting sulphur dioxide emissions.
The Cabinet denied access to the requested legal opinion in a letter dated 1 March 1989, and as the basis of the denial stated that "[t]his document does not constitute final agency action. " Ashland, through Mr. Bender, appealed that decision to this office by letter dated 9 March 1989.
OPINION OF THE ATTORNEY GENERAL
The Cabinet's stated ground for denying Ashland's request for inspection of the subject document is that the document is preliminary in nature, "not constitut[ing] final agency action. " This ground for denial is prima facie legitimate pursuant to KRS 61.878(g) and (h) which exclude from open inspection:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
Of course, what is crucial to making a determination under the statute is the answer to the question of whether the nature of the document is actually preliminary. If it is, as the Cabinet has said, truly preliminary, then it is excluded under the statute. However, once a state agency adopts the document as part of its final action, the document is stripped of its preliminary status and becomes subject to inspection. See: Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 at 956, 957 (1984).
This office has reviewed both the legal memorandum and the notice of agency action appearing in the Eddins-Gale letter. It is plain to see that the Cabinet did adopt what was originally a preliminary memorandum as part of its final action. The Eddins-Gale letter not only refers to the memorandum, but clearly implies that its recommendations are being adopted by the Cabinet for the action taken. The letter states that the memorandum had been requested, that it was now "in hand," what was the recommendation, and that "[t]herefore" the Cabinet would expect Ashland to comply with the memorandum's recommendations.
It is therefore the opinion of the Attorney General that the legal memorandum Ashland sought to inspect is not preliminary as meant by KRS 61.878(g) or (h), and is therefore open for Ashland's inspection under the holding in Kentucky State Board of Medical Licensure, supra.
As required by statute, a copy of this Opinion is being sent to Mr. Jack C. Bender, Esq., who requested it.