Request By:
Mr. Robert W. Keats
Legal Counsel
Louisville and Jefferson County
Metropolitan Sewer District
400 South Sixth Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Mr. Jon L. Fleischaker, attorney for the Courier Journal and Louisville Times Company, has appealed to the Attorney General under KRS 61.880 your denial of inspection of certain records pertaining to the Metropolitan Sewer District. The records requested are described as "all Incident Response Reports in which enforcement actions are completed or a decision has been made to take no action." You denied inspection of the records by letter dated May 12, 1981 stating as follows: "MSD considers that the Incident Response Reports are preliminary notes or preliminary memorandums and not intended to give notice of a final action of MSD." You cited KRS 61.878(1)(g) and (h) as statutory authority exempting the records from the mandatory requirement of public inspection.
By letter to you dated June 2, 1981, we requested that you send specimen copies of incident response reports to this office in order that we may properly rule on Mr. Fleischaker's appeal. You complied with our request by sending three specimen copies.
OPINION OF THE ATTORNEY GENERAL
After reviewing the specimen copies of the documents requested, we have arrived at the opinion that the Incident Response Reports are intra-office memoranda and are preliminary memoranda in which opinions are expressed or policies formulated or recommended and are exempt from the mandatory requirement of public inspection by KRS 61.878(1)(h).
We conclude that the practice of MSD is to respond to each complaint received from a member of the public or an employee of MSD by assigning one or more of its employees to investigate the complaint; after making an investigation by visiting the site and interviewing persons in the vicinity, the investigator fills out the form titled "MSD Incident Response Report"; the report is delivered to the employee's supervisor and contains a recommendation of whether further action is indicated; the report contains the name of the persons who complained, the incident location, the name of the business or occupant, the nature of the incident, the name of the employee who investigated, whether any MSD equipment responded to the incident, apparent cause of the incident and whether there was any possible violation of the industrial waste code, along with other data such as the time the complaint was received, the time the investigator arrived on the site, and the time he departed. It does not contain statistical data as to the results of tests but does sometimes contain reported statements by persons who have noticed peculiar odors or other phenomena giving them suspicion.
If further investigation is indicated and made and if violations are discovered, a letter will be written to the person suspected of offending which amounts to a citation or an order to correct an abuse. We think that such letters are probably subject to public inspection but that question is not before us in this opinion.
Any papers which are preliminary and intra-office memoranda remain such. The provisions of KRS 61.878(1)(f) do not apply and even after final action has been taken or a decision to take no action has been made the preliminary reports may still be withheld from public inspection.
As directed by statute we are sending a copy of this opinion to the requester.