Request By:
Mr. Paul V. Guagliardo
Assistant Director of Law
City of Louisville Department of Law
City Hall, Room 200
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Raymond Abbott has appealed to the Attorney General, pursuant to KRS 61.880, your denial of his December 10, 1991, request to inspect a copy of the security report prepared by employees of Jewish Hospital following an incident involving Mr. Abbott which occurred in October, 1990. Mr. Abbott indicates, and you confirm, that he was provided with a copy of a memorandum from Detective Schmidt to Captain Shain, both of the Louisville Police Department, in response to a previous open records request. That memorandum referenced the security report, which was voluntarily provided to the Louisville Police Department at Det. Schmidt's request.
You denied Mr. Abbott's request in a letter dated December 13, 1991, stating:
Since Det. Schmidt's report was an inter-office document, we were not obligated to furnish it to you. However, as a courtesy, we did so. However, a copy of the Jewish Hospital Security Report was voluntarily provided to the Police Department at Det. Schmidt's request. The hospital was under no obligation to do so. We consider that report not to be a public record as defined by the Open Records Law. Additionally, the report, if a public record, would be considered correspondence with a private individual. Thus we must deny your request under the provisions of KRS 61.878(2) and 61.878(1)(g).
In addition, you advised Mr. Abbott to contact Jewish Hospital to obtain a copy of the report.
Mr. Abbott asks that we review the city's denial of his open records request to determine if your actions were consistent with the Open Records Act. For the reasons outlined below, we conclude that you properly denied Mr. Abbott's request.
OPINION OF THE ATTORNEY GENERAL
KRS 161.870(2) defines a "public record" as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency .
This Office has previously recognized that records of private entities or agents that are in the possession of or retained by a public agency are, in general, subject to inspection. OAG 89-7; OAG 91-15; OAG 91-72. Jewish Hospital furnished a copy of its report ot the Louisville Police Department as an aid to Detective Schmidt in preparing his internal memorandum pertaining to the incident involving Mr. Abbott. The report is "in the possession" a public agency, and must be deemed a "public record" for purposes of the Open Records Act.
Nevertheless, we concur with you in your view that the report constitutes "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " and is therefore exempt from public inspection pursuant to KRS 61.878(1)(g). Although a hospital would not typically be deemed a "private individual," in OAG 90-13, at p. 3, we observed:
While it can be argued that a business or corporation is not a person within the meaning of KRS 61.878(1)(a), this office has consistently held that the word 'person' shall include all of the definitions provided by KRS 446.010(26) which includes 'bodies politic and corporate, societies, communities, the public generally, individuals, partnerships and joint stock companies;'
We believe that opinion is dispositive of the present appeal. In OAG 90-13, we held that a voluntary response by a private business to a request for information comes under the classification of private correspondence. Under the facts presented, we find that Jewish Hospital voluntarily provided a copy of its report to the Louisville Police Department at the request of Detective Schmidt. Accordingly, the city properly treated the report as private correspondence per KRS 61.878(1)(g).
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Raymond Abbott. Both the city and Mr. Abbott may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).