Request By:
The Honorable Gary W. Gillis
Secretary of the Revenue Cabinet
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mark Halleck has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the custody of the Revenue Cabinet. He has described the records in question as all directives and interdepartmental memoranda dealing with guidelines and methodology to the auditors and review board members dealing with sales and use tax audits.
You replied to Mr. Halleck in a letter dated December 14, 1984. In connection with the tax audit of his business you directed his attention to KRS 139.310 and 103 KAR 25:010 as well as the provisions of the Kentucky Sales and Use Tax Law generally. As to his request to inspect the documents and materials in question you cited KRS 61.878(1)(h) providing that among those public records which are excluded from the application of the Open Records Law and subject to inspection only upon an order of a court of competent jurisdiction are preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial of the request to inspect the records in question was proper under the Open Records Law so far as we understand the factual situation presented.
The person requesting to inspect public records is required to describe the records he seeks to inspect with specificity. See OAG 84-342, copy enclosed, at page two. We have had some difficulty in determining exactly what records are being sought from the Revenue Cabinet. If this opinion does not correctly identify the nature of the records sought, Mr. Halleck may wish to file a more specific request to inspect public records with the Revenue Cabinet.
In an attempt to gather additional information relative to the records in question, the undersigned Assistant Attorney General contacted Mr. Kenneth Gilbert of the Revenue Cabinet on January 17, 1985. Mr. Gilbert assisted in the preparation of and the research for your letter of December 14, 1984. It was his impression that Mr. Halleck was dissatisfied with a sales and use tax audit of his business and was alleging that the auditor had used another state's statutes as a guide in conducting the audit. Mr. Gilbert was of the opinion that the request to inspect records related to those records concerning the Revenue Cabinet's use of other state's statutes in conducting audits.
Both Mr. Gilbert and a member of the Revenue Cabinet's legal staff with whom the undersigned talked on January 18, 1985 stated that to their knowledge there are no directives or memoranda in the Revenue Cabinet relative to this state's use of other states' statutes in conducting sales and use tax audits. Under those circumstances, since no such records exist, the request to inspect is moot. See OAG 83-111, copy enclosed.
If Mr. Halleck's request to inspect "directives and interdepartmental memos" refers in fact to intradepartmental memoranda of the Revenue Cabinet in which opinions are expressed, such records would be excluded from the coverage of the Open Records Law (in the absence of a court order) by KRS 61.878(1)(h). That provision excludes "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. "
We said in OAG 84-163, copy enclosed, that intraoffice memoranda are exempt from public inspection, especially when such memoranda are preliminary. (They are not evidence of final agency action and contain opinions of the writers.) Furthermore, records which are intraoffice memoranda in which various employees of the agency report their findings, express opinions and make recommendations are exempt from mandatory public inspection requirements. See OAG 80-504, copy enclosed.
We conclude that from the facts available to us, the Revenue Cabinet acted in accordance with the Open Records Law in denying the request to inspect records. If the request to inspect public records relates to records which do not exist the request is moot. If the request to inspect relates to intradepartmental memoranda in which opinions are expressed and recommendations are made, such records are exempt from public inspection in the absence of a court order. If the request to inspect public records does not describe the records sought to be inspected with specificity the request need not be granted.
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in court pursuant to KRS 61.880(5).