Request By:
J. Patrick Abell, Esq.
General Counsel
Office of the Governor
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney General
Ms. Monica Dias, a reporter for The Kentucky Post in Covington, Kentucky has appealed to the Attorney General, pursuant to KRS 61.880, your denial of her request to inspect certain documents in the custody of the Governor's office. Specifically, Ms. Dias sought to inspect a copy of a report from Arthur Williams, Commissioner of the Department for Environmental Protection, Natural Resources and Environmental Protection Cabinet to Governor Wallace Wilkinson. In this report the Commissioner expressed his opinion as to the various options available addressing the controversial Union Underwear-Jamestown Pipeline issue, which resulted from that company's proposal to discharge chloride effluents into Lake Cumberland.
You denied the request citing KRS 61.878(h).
In her appeal, Ms. Dias stated:
The report I seek concerns discussions at a meeting of representatives of the Cabinet for Natural Resources and Environmental Protection, environmentalists and Union Underwear. It is my understanding that the report covers the content of that meeting and therefore would not qualify as preliminary recommendations.
At the request of the undersigned Assistant Attorney General, the Natural Resources and Environmental Protection Cabinet made available to us a copy of the above-described report. Pursuant to KRS 61.880(2) we have reviewed the document and will continue to keep it confidential.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection, in the absence of a court order authorizing inspection, are those set forth in KRS 61.878(1)(g) and (h):
(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.
For the reasons stated below, we find the above-described report from the Commissioner to the Governor to be a preliminary memoranda in which the Commissioner's opinions are expressed along with a summary and update of various aspects of the Union-Underwear pipeline situation. Records of this nature are not required to be made available for public inspection under the Open Records Act.
More than one-third of state open records laws contain exemptions for inter-agency or intra-agency memorandums, most of which mirror the Federal Freedom of Information Act's fifth exemption. See Annot., What Constitutes Preliminary Drafts or Notes Provided By or For State or Local Governmental Agency, for Intra-agency Memorandums, Exempt From Disclosure or Inspection Under State Freedom of Information Acts , 26 ALR 4th 639 (1983). The Federal Freedom of Information Act, 5 U.S.C. § 552(b)(5), provides that the section does not apply to "inter-agency or intra-agency" memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.
The Kentucky preliminary report exemptions are similar in purpose with these laws. KRS 61.880(1)(g) and (h) of the Kentucky Open Records Act have been construed by the Kentucky Court of Appeals in two reported opinions. In
City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982), the Court of Appeals considered, in part, whether internal investigative files of a city police department were exempt from public disclosure as preliminary under the Open Records Acts. The Court of Appeals concluded that the internal reports were submitted for review to the chief who alone determined what final action was to be taken. The Court held, therefore, that those internal reports were exempt unless adopted in a final report.
In
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953 (1983), the Court of Appeals was faced with another open records appeal, this time concerning complaints to the Medical Licensure Board against physicians. The Court upheld the denial of internal preliminary investigative materials under the Open Records Statute and City of Louisville . The Court said, however, that if such notes or recommendation are adopted by the board as part of its action, the preliminary characterization is lost, as is the exempt status.
More recently, the Court of Appeals construing this part of the Act, held that the University of Kentucky's report to the NCAA concerning the investigation of the men's basketball program, was not exempt from disclosure because the report was a "final action" by the University, notwithstanding that the NCAA had not adopted any part of the report as part of its final action. See Courier-Journal & Louisville Times Company. v. The University of Kentucky , 37 KLS 15, 17 (12/31/90). It should be noted that this decision is not final, as of the date of this opinion, and that the Supreme Court of Kentucky could entertain a motion for discretionary review. Therefore, reliance on this decision is suspect, at this time.
Keeping these opinions of the Kentucky Courrt of Appeals in mind, we now turn to the question at hand. Was the Governor's reliance on KRS 61.878(1)(h) justified under the circumstances of the facts presented?
Ms. Dias has characterized the requested memorandum as concerning, "the contents" of "a meeting of representatives of the Cabinet for Natural Resources and Environmental Protection, environmentalists and Union Underwear." Not having seen the memorandum, she is at a considerable disadvantage in describing its contents. Having read the report, we disagree with her description.
While we must keep the report confidential, we can describe its contents in general terms, in order to justify our conclusions. Briefly, the memorandum is divided into three parts. In the first part the Commissioner gives the Governor a status update as to the permit status and related litigation, the reports submitted by Union Underwear discussing alternatives to the pipeline, and a summary of ideas which came out of a meeting of representatives of the City of Jamestown, Union Underwear Company, environmental groups and the Cabinet.
In the second and third parts, which are the bulk of the memorandum, captioned "General Discussion" and "Recommendations and Conclusions," the Commissioner frankly discusses the situation and gives his opinion of the viability of alternatives to the pipeline and the Cabinet's recommendations concerning the issue. The only questionable issue we see is whether the memorandum was intended to be a final action of the Department or merely a preliminary report.
We would characterize the report as a preliminary status update, in which Mr. Williams expresses his opinion as to the viability of the various proposed alternatives to dumping salt into Lake Cumberland. This type of report may, in the discretion of a public agency, be withheld from disclosure pursuant to KRS 61.878(1)(h) as a "preliminary memoranda in which opinions are expressed or policies formulated or recommended. " We do not view it as having been intended as a final agency report to the Governor and it has not been adopted into any report by the Governor. Therefore, we think your reliance on this exemption was proper.
We are not unmindful that the Jamestown Union Underwear pipeline has generated great public debate between environmentalists and those who fear the loss of jobs, if Union Underwear closes its Jamestown plant. This is a newsworthy issue. Neither are we unmindful that the General Assembly enacted the Open Records Act based on a policy that citizens of the Commonwealth have a basic and fundamental right to be informed about the conduct of its government and governmental officials. However, the General Assembly also provided exceptions to the Act, including the one relied upon in this instance, out of concern that not all government records should be open to public inspection.
The memorandum in question falls squarely within the exception to disclosure permitted an agency, when the memorandum is preliminary in nature, and opinions are expressed or policies recommended. Therefore, the decision to withhold the document is within the discretion of the Governor. Our office has repeatedly upheld similar denials. See OAGs 80-504, 82-339 and 88-85, copies of which are enclosed.
It is therefore, the opinion of the Attorney General, that your reliance on KRS 61.878(1)(g) was justified. However, your response should have briefly explained how the exception relied on applied to the record withheld. See KRS 61.880(1).
As required by statute, a copy of this opinion is being mailed to the requesting party, Ms. Monica Dias, who has a right to challenge it by filing an original action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.