Request By:
Mr. Ed Burtner
City Manager
City of Winchester
City Hall
Winchester, Kentucky 40391
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. William S. Blakeman, editor of the The Winchester Sun , has appealed your denial of reporter Julie Smead's May 3, 1991, request to inspect a report of a fire at the Red Carpet Inn, violations uncovered in the investigation of that fire, and a list of violations prepared by the Winchester building inspector.
You denied Ms. Smead's request in a letter dated May 6, 1991, relying on KRS 61.878(1)(g) and (h), and on OAG 85-126. You explained that the requested records "consist of investigatory documents, memorandum notes, and preliminary recommendations of City Departments which are exempt from public inspection. "
Mr. Blakeman asks that this Office review your denial of Ms. Smead's request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied that portion of Ms. Smead's request pertaining to the report on the investigation of the fire, but improperly denied that portion of her request pertaining to violations uncovered by the fire department and the city building inspector.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that reports on the investigation of fires are exempt from mandatory disclosure under KRS 61.878(1)(j). That provision authorizes the withholding of records the disclosure of which is prohibited, restricted or otherwise made confidential by enactment of the General Assembly. KRS 227.370(1) authorizes the chief of the fire department, or his designee:
[T]o inspect all property for the purpose of ascertaining and causing to be corrected any conditions likely to cause fire loss, or determining the cause or origin of any fire loss, or discovering any violation of a law or ordinance relating to fire prevention and protection . . . .
Subsection (2) of that statute provides:
A written report of each inspection shall be made and kept on file in the office of the chief of the fire department. Reports of investigations of fire losses conducted by a fire department may, in the discretion of the chief of the fire department, be withheld from the public .
(Emphasis added.) Reports of investigations of fires may therefore be withheld from the public pursuant to KRS 227.370. OAG 84-19.
Such reports have also been declared exempt under KRS 61.878(1)(h) as "preliminary memoranda in which opinions are expressed or policies formulated or recommended." As we noted in OAG 84-19:
The Winchester fire department is controlled by the Winchester city commission. [Citation omitted.] The City manager is the executive agent of the commission. [Citations omitted.] The reports from the fire chief to the city manager thus constitute intra-office memoranda and are exempt from inspection pursuant to KRS 61.878(1)(h).
OAG 84-19, p.2. Clearly, the report prepared by the chief, or his designee, following the fire at the Red Carpet Inn may be withheld from the public. Accordingly, you properly denied inspection.
With respect to Ms. Smead's request for access to lists of fire and building code violations prepared by the chief, or his designee, and the city inspector, we find that denial was improper. KRS 227.370 does not vest the chief with discretion to withhold information pertaining to violations noted in his inspection. KRS 61.878(1)(j) is therefore inapplicable. Moreover, we have previously held that inspection reports are not "preliminary" within the meaning of KRS 61.878(1)(h). OAG 77-585; OAG 80-596; OAG 89-36. In OAG 80-596, we observed:
It is generally recognized that reports of inspections of enterprises regulated by law are public because of the need for public supervision of the actions of regulatory agencies and the public's right to be alerted to unsafe conditions . . . .
[I]f a building inspector has made a report of a defect, the defect should be corrected before it is covered up and forever precluded from further inspection. The report of a building inspector is not a subjective expresssion of opinion but an objective report of physical facts, and in that sense it is final.
OAG 80-596, at p.3. We further noted that the public is entitled to know when a restaurant fails to pass a health inspection and that an inspection report is not exempt as "preliminary." See also, OAG 77-585.
In the absence of a statute providing for the confidentiality of inspection reports, such reports must be made available to the public. We therefore conclude that you improperly denied Mr. Blakeman's request to inspect the reports of violations prepared by the fire chief and city building inspector.
As required by statute, a copy of this opinion will be sent to Mr. William S. Blakeman. Either Mr. Blakeman or you may challenge it by instituting proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court. KRS 61.880(5).