Opinion
Opinion By: Andy BeshearAttorney General;Amye L. BensenhaverAssistant Attorney General
Open Records Decision
On behalf of the Kentucky Center for Investigative Reporting, Will Wright appeals the denial of his undated request to the Kentucky State Police ("KSP") to inspect, among other records, "[a]ny audits of the Kentucky State Police's Aircraft Support Branch filed since January 1, 2011; and documents created by the Kentucky State Police Inspections/ Evaluations Section regarding the Kentucky State Police Aircraft Support Branch." KSP agreed to produce some of the records identified in Mr. Wright's request, but denied the existence of audits and refused to permit him access to written inspections of its Aircraft Support Branch. Relying on KRS 61.878(1)(i) and (j), KSP characterized the requested records as "internal inspections [that are] preliminary in nature [and that] express opinions of the inspection trooper as to whether the branch has complied with internal agency policies." Because the records "do not indicate final action by the agency," KSP argued, they "are exempt from disclosure. " Mr. Wright thereafter initiated this appeal, asserting that the inspection reports are not preliminary but are final as of the date the reports are completed.
In supplemental correspondence directed to this office, KSP's Official Custodian of Records expressed the belief that this is a "matter of first impression." She noted that no other known agencies "conduct internal inspections for administrative purposes of reviewing agency filing procedures . . . ." Continuing, she observed:
It is the position of the KSP that such inspections, which do not evaluate spending or accounting practices, are solely for the purpose of ensuring the various branches of the KSP are consistent in the maintenance of their files, contain the opinion of the Inspector and comments by other agency personnel. The Inspector does not have authority to impose any type of sanctions, disciplinary action, or other penalties or remedies.
Accordingly, KSP argued, "[t]he inspection records in question, even upon completion of the inspection, remain preliminary documents as they merely contain notes, recommendations, and opinions of the Inspecting Trooper and do not indicate any final action by the agency." We disagree.
Relying on OAG 80-596, 96-ORD-32, 97-ORD-183, and 99-ORD-128, in 01-ORD-17 this office determined that the Regional Airport Authority of Louisville and Jefferson County violated the Open Records Act in denying a request for inspection reports prepared by Authority employees of an Authority contractor's work based on KRS 61.878(1)(i) and (j). The Authority argued that "[t]he forms include the predecisional opinions of the Authority's employees as to the progress, problems, and work quality . . . [but] do not constitute, and are not incorporated into, any type of final action by the Authority." Our analysis proceeded from the long-established principle that an inspection report "is not a subjective expression of opinion but an objective report of physical facts, and in that sense it is final." OAG 80-596, p. 3. We reaffirmed this position in 08-ORD-063, recognizing that inspection reports "are accessible upon creation . . . ." 08-ORD-063, p. 3; see also 07-ORD-047. The weight of legal authority does not support KSP's position.
KSP maintains that the disputed inspection reports differ from other inspection reports insofar as they are "internal," "do not evaluate spending or accounting practices," are created "solely for the purpose of ensuring the various branches of the KSP are consistent in the maintenance of their files . . .," and are not aimed at "any type of sanctions, disciplinary action, or other penalties or remedies." In essence, KSP invokes the common law "self-critical analysis" privilege, exempting from disclosure self-evaluative documents, to shield the reports from public inspection. In
University of Kentucky v. Courier-Journal Co., 830 S.W.2d 373, 878 (Ky. 1992), the Kentucky Supreme Court rejected this privilege in the context of an open records dispute, declaring that, in enacting the Open Records Act, the General Assembly preempted "common law regarding access to records maintained by public agencies," University of Kentucky, 830 S.W.2d at 378. The Court emphasized that "[t]he General Assembly has determined that any exception to disclosure in the Act, 'shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.' KRS 61.[871]." University of Kentucky, 830 S.W.2d at 378, n. 3. KSP's attempt to remove the disputed reports from the general rule affirming the public's right of access by treating the reports as "self-critical analysis" is therefore unpersuasive.
Having concluded that the inspection reports at issue in this appeal are not, in general, shielded from disclosure by KRS 61.878(1)(i) and (j) because they consist of "objective report[s] of fact," we recognize that expressions of opinion may be commingled with fact. Based on our analysis in 01-ORD-17, we affirm KSP's right to redact expressions of pure opinion. Expressions of pure opinion should not be confused with employee comments on objective fact, and any doubts about disclosure should be resolved in favor of access. See, generally,
Kentucky Examiners of Psychologists and Div. of Occupations and Professions, Dept. for Administration v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992) (recognizing that the Open Records Act "exhibits a general bias favoring disclosure" ).
Either party may appeal this decision 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.