Request By:
Mr. Richard Shogren, Director
Division of Water
Natural Resources and Environmental
Protection Cabinet
Capital Plaza Tower
Frankfort, Kentucky 40601Attn: Arthur L. Williams
Attorney
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Howard P. Jones has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. The document requested is entitled "South Elkhorn Creek Drainage: Biological and Water Quality Investigation for Stream Use Designation" (Division of Environmental Services, Technical Report No. 2). The response to Mr. Jones' request was made by Mr. Arthur L. Williams, Attorney, by letter dated March 24, 1983. It stated that the request was being denied because the document constitutes a preliminary draft and a preliminary recommendation as exempted under KRS 61.878(1)(g)(h).
At our request Mr. Williams sent us a copy of his letter and a copy of the requested document. The document is composed of 144 pages and is stamped "preliminary draft."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that, considering the phrasing of the request, the Division of Water was technically in compliance with the Open Records Law, KRS 61.870 to 61.884, in denying it. In requesting the document by its title the request was for a unit. And, as a unit, the document is still preliminary. In his letter Mr. Williams states the following:
"The record is still an in-house draft and will not be finalized until after consideration and incorporation of United States Environmental Protection Agency comments upon the report.
I am advised by the Division of Water that later in 1983 the Cabinet will publish the recommended classification of South Elkhorn Creek as an administrative regulation and at such time the subject report will become a part of the public record and will be made available for public review and comment."
Although we believe you acted in accordance with the Open Records Law in responding to the request as stated, we believe that most of the contents of the report in question should be made available for public inspection immediately.
We have reviewed the entire document and found it to be mainly reports of test results and studies made by experts and as such are final records of a public agency. In OAG 81-208 we held that monitoring test results reported by employees of the Metropolitan Sewer District of Louisville do not fall under the exemption of KRS 61.878(1)(g)(h) as being preliminary and expressing opinions. We said: "We believe that such reports are statistical data and as such are not exempt from mandatory public inspection. " And in OAG 80-596 we held that the report of a building inspector is not a subjective expression of opinion but an objective report of physical facts, and in that sense it is final, not preliminary.
It is, therefore, our opinion that a request to inspect the statistical and scientific data contained in the named report should be honored by your agency. We suggest that the Abstract of the report on page ii and the Summary and Conclusion on pages vi through viii can be withheld as expressing recommendations and opinions. KRS 61.878(3) provides that if any public records contain material which is not excepted and material which is excepted, the public agency shall separate the excepted and make the non-excepted material available for examination. We believe that under the Open Records Law the agency has the option of either making the entire report available to public inspection in its present draft form or, if so requested, making the statistical and scientific data available now and retaining the portion of the report expressing opinion and recommendations until the report is made final.
As directed by statute a copy of this opinion is being sent to the requester.