Request By:
Mr. Robert J. Erhler, Director
Natural Resources and Environmental Protection Cabinet
Legal Division
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
Jim Paxton, the editor for the Paducah Sun, by letter of February 6, 1990, has appealed your 11 December 1989 letter refusing access to testimony relied upon by your agency to deny LWD Inc. a permanent operating permit.
Factual Background
Jim Paxton, by letter of 25 October 1989, asked to inspect and copy sworn statements, affidavits, and other material in the nature of testimony upon which the Natural Resources Cabinet based its permit denial and ten citations against LWD.
You allowed a reporter from the Sun to review approximately two dozen depositions. However, you removed several depositions from the file without providing a written description of documents not produced.
In response to Mr. Paxton's request for the documents which had been removed, you sent a letter dated December 11, 1989. This letter explained that the remaining transcripts were withheld because release of those documents would harm the Cabinet by revealing the identify of informants and by premature release of the information to be used in an administrative adjudication. Therefore, you alleged that the documents are exempt pursuant to KRS 61.878(1)(f).
Mr. Paxton then submitted a modified request asking for copies of the information withheld with the identity of the sources deleted. The Cabinet did not respond to the modified request.
Opinion of the Attorney General
KRS 61.880(1) requires that an agency withholding records under 61.878 give a statement of the specific regulations or statutes authorizing such withholding. You did this in your letter of December 11, 1989, in which you claim that the testimonial records requested by Mr. Paxton may be withheld pursuant to KRS 61.878(1)(f). That statute excludes:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action.
The Cabinet is an administrative agency involved in administrative adjudication. The testimonies that have been requested are in fact part of the process of investigation of regulations. Thus, the issue is whether the Cabinet has completed its administrative adjudication. If the administrative adjudication has not been completed, then the Cabinet may withhold the requested records pursuant to KRS 61.878(1)(f). OAGs 87-15, 87-29, 89-73.
The Cabinet's denial of permit was not a final decision. It was a draft permit tentatively denying the LWD application. Therefore, it was a preliminary step in the decision-making process and a final decision has not been rendered. Release of the requested information would be premature and the open records request may be denied pursuant to KRS 61.878(1)(f).
It is, therefore, the opinion of the Attorney General that the Cabinet responded properly to the request because adjudication was not complete. 1
As required by statute, a copy of this opinion is being sent to Jim Paxton, who requested it. Mr. Paxton has the right to initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes