Request By:
Mr. John Paul Runyon
Commonwealth Attorney
P.O. Box 796
Pikeville, Ky 41501
Opinion
Opinion By: Frederic J. Cowan, Attorney General; V. Lynne Schroering, Assistant Attorney General
Mr. James L. Thomerson, attorney for the Lexington Herald-Leader , has appealed to the Attorney General pursuant to KRS 61.880 your denial of inspection of certain public records in your custody. The request involves records relating to the indictment and guilty plea of Mark Putnam.
By letter dated June 25, 1990 you denied inspection of the Mark Putnam file stating that your file contained preliminary material excluded from disclosure by KRS 61.878(g) and (h). Additionally, you denied the request to examine Mr. Putnam's polygraph stating "if not excluded from disclosure, would be better directed to the Kentucky State Police." You did not state a specific disclosure exemption, nor did you state if you had a copy of the polygraph.
Mr. Thomerson appeals your refusal and divides his appeal into three parts:
1. He appeals your refusal to disclose the entire file on the Mark Putnam/Susan Smith case.
2. He appeals your refusal to give documents which would indicate "when the Commonwealth's Attorney's office first became involved in the case."
3. He appeals your refusal to disclose the polygraph test or report.
OPINION OF THE ATTORNEY GENERAL
I have been in contact with your office and have received a list of the documents contained in the Mark Putnam/Susan Danials Smith case file. All documents in your file, which have already been filed at court, are public documents, and must be available for public disclosure. These documents include the plea agreement, confession, grand jury report, waiver of pre-sentencing report and indictment.
You acted pursuant to the Open Records Act in denying inspection of "notes, copies of all correspondence and taped conversations . . . in negotiating the plea bargain" and relying on the exemption for preliminary material cited in KRS 61.878(g) and (h). This exemption states:
KRS 61.878(1) The following public records 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:
* * *
(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 withheld documents fit within this exemption because they are preliminary drafts, notes and memoranda.
You acted in accordance with the statute in denying the request for information to indicate "when the Commonwealth's Attorney's office first became involved in the case." That is a request for information and not a request for documents as contemplated under the Open Records Act. KRS 61.870(2) and 61.872.
In your reply to the Herald-Leader regarding its request for a copy of Mr. Putnam's polygraph, you stated that the polygraph "if not excluded from disclosure, would be better directed to the Kentucky State Police." However, your office informed the undersigned that you do not have a copy of the polygraph. Therefore, you should have informed the Herald-Leader that your office did not have custody of the polygraph. OAG 87-54.
As required by statute a copy of this opinion is being sent to the requesting party, James Thomerson. Both you and Mr. Thomerson have the right to challenge this opinion in circuit court pursuant to KRS 61.880(5) .