Request By:
William G. Finn
4315 Preston Highway
Louisville, KY 40213Rande N. Swann
Regional Airport Authority
Public Relations Director
P.O. Box 9129
Louisville, KY 40209-0129W. Thomas Halbleib, Jr.
Stites & Harbison
400 West Market Street
Suite 1800
Louisville, KY 40202
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Regional Airport Authority of Louisville and Jefferson County violated the Open Records Act in denying the request of William G. Finn for "Copies of all daily inspection reports relating to Unicustom, Inc."
Responding on behalf of the Authority, Rande Swann, Public Relations Director, denied Mr. Finn's request, stating:
With respect to your request number 7, KRS 61.878(1)(i) and KRS 61.878(1)(j) exclude from the Authority's general disclosure obligations under Kentucky's Open Records Act, "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]" Kentucky's Attorney General has consistently concluded that documents of a preliminary nature, such as preliminary inspection reports, are excluded under KRS 61.878(1)(i). See e.g ., 00-ORD-139, 94-ORD-135, and OAG 84-90. The Authority, therefore, denies your request to view copies of the daily inspection reports.
After receipt of Notification to Agency of Receipt of Open Records Appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, W. Thomas Halbleib, Jr., Stites & Harbison, counsel for the Authority, provided this office with a response to the issues raised in the appeal. In his response, Mr. Halbleib expanded the Authority's original response by explaining, in pertinent part:
a. Background . . . . During the course of the performance of LAIP Contract No. 151, Authority employees made handwritten notes on preprinted forms entitled "Daily Inspection Report." The preprinted portion of the forms include the project title, the project number, the contractor name, as well as blanks for the date of the inspection, the description and location of the work inspected, and the quality of the work inspected. The Authority's engineering staff uses these reports to support its opinions regarding the progress and quality of work, and to make decisions regarding the appropriateness of pay requests submitted by the contractor. The forms include the predecisional opinions of the Authority's employees as to progress, problems, and work quality. Although Authority representatives may consider the contents of the Daily Inspection Reports, the Daily Inspection Reports do not constitute, and are not incorporated into, any type of final action by the Authority.
We are asked to determine whether the Authority's denial of Mr. Finn's request for copies of the Daily Inspection Reports constituted a violation of the Open Records Act. For the reasons that follow, we find that the Authority's reliance on the cited exceptions was partially misplaced, and that the agency has an obligation to release the nonexempt portions of the Daily Inspection Reports, consisting of statements of fact, after redacting the exempt portions, consisting of expressions of opinion or preliminary recommendations.
This office has consistently recognized that the results of an inspection report do not reflect "a subjective expression of opinion but an objective report of physical facts, and in that sense are final." OAG 80-596, p. 3; 96-ORD-32; 97-ORD-183; 99-ORD-128.
The Authority's description of the Daily Inspection Reports indicates that they contain both objective report of physical facts and subjective expressions of opinion. For example, the Authority states that the preprinted portion of the forms includes the project title, the project number, the contractor name, as well as blanks for the date of the inspection, the description and location of the work inspected. This information constitutes a report of objective facts that are neither preliminary in nature or reflect a subjective expression of opinion and, thus, would not be exempt from disclosure under KRS 61.878(1)(i) and (j).
However, information in the Daily Inspection Reports, such as opinions as to the quality of the work inspected, recommendations as to the appropriateness of pay requests, or opinions regarding work progress or problems, that reflects a subjective opinion or recommendation of the inspector which does not constitute final agency action, may be withheld from disclosure under KRS 61.878(1)(i) and (j).
KRS 61.878(4) provides
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
This provision applies to all public records in which exempt and nonexempt information is commingled. Accordingly, the Authority, pursuant to KRS 61.878(4), may redact information from the Daily Inspection Reports that reflect a subjective expression of opinion, such as described in its response, and make the remainder of the Reports available for Mr. Finn's inspection. The Authority must specifically identify those portions of the Reports withheld and explain how each portion qualifies for exclusion pursuant to KRS 61.878(1)(i) and (j) and articulate the basis for denial in terms of the requirements of that exception. KRS 61.880(1).
In a reply to Mr. Halbleib's response to the letter of appeal, Mr. Finn raises a new issue that the Authority also improperly denied item No. 9 of his original request for "Copies of any correspondence relating to the quality or workmanship of Unicustoms work." In its original response to request item No. 9, the Authority stated that it maintained no records that were responsive to that request. Mr. Finn argues that the Daily Inspection Reports fall within the class of correspondence records requested in item No. 9. This issue is raised for the first time in Mr. Finn's reply letter. Because the Authority has had no opportunity to respond to this new argument, we conclude that this issue is not ripe for adjudication and will not be addressed in this appeal.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.