Request By:
Mr. Weldon Shouse, Counsel
Lexington-Fayette Urban County
Airport Board
Security Trust Building
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Mr. David A. Nunery, attorney, has appealed to the Attorney General under KRS 61.880 the denial of inspection of certain public records in your custody as counsel for the Lexington-Fayette Urban County Airport Board. The records are described as:
"Any documentation in the records of the Lexington-Fayette Urban County Board or which you may have access to which would explain why these employees were dismissed."
The dismissed employees referred to are five persons who were firemen at the Bluegrass Airport and who were dismissed on February 11, 1980. Mr. Nunery made a written request to inspect the described documents by letter to you dated March 13, 1980.
You denied Mr. Nunery's request to inspect the described documents by letter dated March 25, 1980 in which you stated the following:
"The investigation is lengthy, it involves quotes from various persons, some of whom you represent and others you do not, and others that are still employed by the airport board.
"It is my personal belief that the release of this investigation would create additional and new dissention among the workers and employees at the airport. I am taking the position, pursuant to KRS 61.810(6) that this is a personnel matter and for that reason will not make available the records for your inspection unless ordered to do so pursuant to KRS 61.878.
"There is one further reason that I might add and that is that I am not sure that the airport records are in fact public records as defined by KRS 61.870."
OPINION OF THE ATTORNEY GENERAL
First, it is our opinion that the Lexington-Fayette Urban County Airport Board is a public agency and all of its papers are public records under KRS 61.870.
Secondly, we believe that KRS 61.810(6), which provides an exception to the Open Meetings Law allowing hearings on personnel matters to be held in closed session, has no pertinency as to whether the described documents should made available for public inspection. We believe that in denying inspection of a public record a public agency must rely on one of the exceptions provided in the Open Records Law, KRS 61.878(1). KRS 61.880(1) provides, in part, as follows:
"Any agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld."
Although your response denying inspection of the record did not cite any exception listed in KRS 61.878(1) and did not make any explanation as to how the exception applies, we believe that two of the exceptions may apply to the described documents, to wit:
"(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."
If you believe either of the above quoted statutory provisions apply to the requested records, you should so advise Mr. Nunery, the requester, and the Attorney General as provided by KRS 61.880(1). If you believe that one of these exceptions applies, we are requesting that you send a copy of all the described documents to the Attorney General for our review as provided by KRS 61.880(2).
A copy of this opinion is being sent to the requester.