Request By:
Sarah Orrahood Hernandez, Esq.
Office of General Counsel
Natural Resources and Environmental
Protection Cabinet
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Robert S. Miller, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request and his client's request to inspect various documents in the custody of your Cabinet. In a letter to Secretary Charlotte Baldwin of the Natural Resources and Environmental Protection Cabinet, dated April 25, 1986, Mr. Miller requested to inspect all records and documents pertaining to a wide variety of matters. Included in the request were documents relative to his clients' property in Scott County, Kentucky, all documents relative to members of the Cabinet and the Toyota Company concerning its proposed plant in Scott County and documents pertaining to the city of Georgetown's proposed sewage treatment plant. Mrs. Jane Offutt appeared at the Cabinet's Divisions of Waste Management and Water on May 7, 1986. She requested to inspect all of the Division of Water's records pertaining to Toyota, all of the Division of Waste Management's records concerning Toyota and all of Commissioner Michael Taimi's records pertaining to Toyota. Mr. Taimi is, of course, the Commissioner of the Department for Environmental Protection.
In a letter to Mr. Miller, dated May 5, 1986, you responded to his requests to inspect documents, as set forth in his prior letter to Secretary Baldwin. You stated that Mr. Miller's letter enumerated three broad categories of records which are maintained by the Cabinet's Divisions of Water, Air and Waste Management and by the office of Commissioner Taimi. You advised Mr. Miller that the Cabinet would permit him to inspect all documents maintained by the three divisions and the Commissioner's office relative to the proposed Toyota facility except for those specifically listed in your letter.
You excluded from Mr. Miller's inspection handwritten notes prepared by the Division of Waste Management's personnel. Documents of the Division of Water excluded from inspection consist of handwritten notes, a draft letter to Mr. and Mrs. Offutt dated March 27, 1986, and a draft copy of a letter to Charles Perkins. Documents in the Commissioner's Office excluded from public inspection consist of two preliminary memoranda and a preliminary draft of a map prepared by the Cabinet's staff. You advised Mr. Miller that the abovementioned documents were excluded from public inspection pursuant to KRS 61.878(1)(g) and (h) which authorize a public agency to exempt from inspection documents consisting of preliminary drafts, notes, correspondence with private individuals, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. None of the excluded documents constitute final agency action.
Your letter to Mr. Miller, dated May 9, 1986, concerned the May 7, 1986, visit by his client, Mrs. Offutt, to the Cabinet's Divisions of Waste Management and Water to inspect public records. You advised Mr. Miller that Mrs. Offutt was permitted to inspect all documents maintained by the Divisions of Waste Management and Water and the Commissioner's Office other than those listed in your letter of May 5, 1986, and other than several additional documents of the Division of Water. She was told tht she could inspect the records of the Division of Air Pollution at her convenience.
Those additional excluded documents were described by you as a Cabinet memorandum from Vicki Baker to Division of Water files, dated May 5, 1986; a Cabinet memorandum from Albert Westermann to David Rome, dated March 4, 1986; a Cabinet memorandum from Alizerza Habibi to Doug Allgeier, dated December 21, 1983; nine pages of handwritten notes prepared by Cabinet staff; and three sets of draft plans, three sets of draft specifications and four sets of a preliminary engineering report. The above-mentioned documents were excluded from public inspection pursuant to KRS 61.878(1)(g) and (h) which authorize a public agency to exempt from inspection documents consisting of preliminary drafts, notes, correspondence with private individuals, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. You also stated that none of the excluded documents constitute final agency action.
In a letter to the Attorney General, dated May 8, 1986, Mr. Miller stated that his clients were filing a complaint pursuant to KRS 61.880(4) in response to your letter to him dated May 5, 1986. He maintains that the exemptions set forth in KRS 61.878(1) are not applicable to this particular situation and that the more limited exemptions of KRS 224.035 should be applied. He also cites 33 USCA § 1318(b). He further maintains that there are no exemptions in KRS 61.870 to KRS 61.884 for handwritten documents and that the Cabinet advised him that no further materials were being supplied because the Cabinet is "not ready." Mr. Miller implies that there are documents in existence which have not been provided to him and which have not been referred to in your letters. He also refers to a request for information by the Scott County Board of Adjustments.
Mr. Miller also contacted this office in a letter dated May 12, 1986, which, basically, is a response to your letter to him of May 9, 1986. He complains of your additional exemptions from public inspection and the procedures followed by your Cabinet relative to requests to inspect documents.
The undersigned Assistant Attorney General talked with you by telephone on May 14, 1986, and you advised that in responding to the inspection of records requests submitted by Mr. Miller and his client, it is your understanding that all records of the Divisions of Waste Management and Water and Commissioner Taimi's office were examined and the only records withheld from inspection were those set forth in your letters of May 5, 1986, and May 9, 1986.
OPINION OF THE ATTORNEY GENERAL
Mr. Miller states that his complaint to this office is based upon the provisions of KRS 61.880(4) which state as follows:
"In the event a person feels the intend of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the attorney general and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
The undersigned cannot determine how Mr. Miller's inspection requests are being subverted by the Cabinet short of denial of inspection. He implies that documents exist relevant to his requests which have not been made available and which have not been mentioned in your letters to him dated May 5, and May 9, 1986. Since he has provided no specific information pertaining to those allegations and in view of your statements to me over the telephone on May 14, 1986, the only conclusion to be drawn is that the only records of the Divisions of Waste Management and Water and Commissioner Taimi's office withheld from inspection were those mentioned in your letters of May 5, 1986, and May 9, 1986.
The primary function of this office relative to inspection requests and their denial by a public agency is to review the denial and determine whether the public agency acted consistent with the provisions of the Open Records Act. See KRS 61.880(2). You have specifically set forth those documents which have been withheld from public inspection and this office will in due course review your actions relative to those documents.
Mr. Miller refers to a request for information by the Scott County Board of Adjustments to the Cabinet. Whether or not such a request has been made by that entity has no bearing on the particular matter now before this office for review.
In his letter of May 12, 1986, to the Attorney General Mr. Miller maintains that the Cabinet has attempted to bind his client to "limited discovery. " The inspection request sheets utilized by his client are the standard forms used by many state agencies. They do not limit or restrict a person's right to request information. Furthermore, as we said in OAG 86-22, copy enclosed, at page six, generally, a public record is either open to public inspection by any person or it may be withheld from all persons under one or more of the exceptions to inspection set forth in KRS 61.878. This often means that the Open Records Act cannot be used in lieu of the discovery procedures provided by the Rules of Civil Procedure.
Mr. Miller maintains that KRS 224.035 and 33 USCA § 1318(b) take precedence over the State Open Records Act and that the limitations upon public inspection set forth in KRS 61.878(1) are not applicable in this situation. The original version of KRS 224.035 was enacted prior to the passage of the Open Records Law in 1976. KRS 224.035 provides that any record or other information furnished to or obtained by the Cabinet shall be open to reasonable public inspection. Without such a provision any request to inspect public records prior to the effective date of the Open Records Act (June 19, 1976) would have been governed by KRS 171.650 (now repealed) which utilized the old common law rule in regard to public inspection.
In addition, it is the understanding of the undersigned Assistant Attorney General that the Cabinet was delegated, under the Kentucky Pollutant Discharge Elimination System (KPDES), in September of 1983, the authority to handle various matters relative to pollution control. In connection with this state's application to the Federal Government for the authority to handle such matters, a General Counsel Statement was filed which discussed all state statutes having any bearing on the matter, including the Open Records Act. The Federal Government in approving the state's application obviously did not consider the Open Records Act as conflicting with or subverting any federal requirements.
In the opinion of this office the Open Records Act applies to the situation under consideration and neither KRS 224.035 nor the section of the federal law cited by Mr. Miller remove the limitations to public inspection set forth in KRS 61.878(1).
Among the public records which may be excluded from public inspection by a public agency in the absence of a court order authorizing inspection are those records set forth in KRS 61.878(1)(g) and (h):
"(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; "
In City of Louisville v. Courier-Journal, Etc., Ky.App., 637 S.W.2d 658, 659 (1982), the Court said in part as follows:
"It is the opinion of this Court that subsections (g) and (h) quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and Deputy Chief of Police.
"Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent."
In Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983), the court said that if documents such as certain letters, correspondence and reports were merely internal preliminary materials, they would be exempt under the statute and the principles set out in City of Louisville, supra.
Enclosed is a copy of OAG 86-26 dealing with KRS 86-26 dealing with KRS 61.878(1)(g) and (h) and citing several other opinions dealing with those same provisions. This office has previously concluded that notes, intra-office memoranda and investigative reports, setting forth the opinions, observations and recommendations of various agency personnel, which do not represent the agency's final decision on the matter, may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
It is, therefore, the opinion of the Attorney General that the Cabinet's denial of the request to inspect those documents consisting of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda, including intra-office memoranda, and other documents not representing final action of the Cabinet, was proper as such materials may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
As required by statute a copy of this opinion is being sent to the requesting party, Robert S. Miller, Esq., who has the right to challenge it in circuit court pursuant to KRS 61.880(5).