Request By:
Lt. Larry Fentress
Legal Officer
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
William P. Sturm, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect a particular document in the custody of the State Police. He described the document in question as a petition prepared by some members of the Facilities Security Section, relating to his client, Mr. Howard C. Husband, who is also an employee of the Facilities Security Section.
In your letter to Mr. Husband, which was sent to Mr. Sturm's law office and was dated June 3, 1986, you stated that the request was denied because the document in question is a preliminary recommendation and a preliminary memorandum in which opinions are expressed. You further said that KRS 61.878(1)(h) permits a public agency to exclude such documents from public inspection.
In Mr. Sturm's letter of appeal to this office, dated July 12, 1986, he states that the petition against Mr. Husband was prepared by some fellow security guards of the Facilities Security Section. The petition, which was not solicited by the State Police, was sent to one of its officers and supposedly concerns an attempt by some fellow security officers to prevent Mr. Husband from getting assigned to a patrol car. The petition allegedly questions Mr. Husband's ability to properly perform his job.
Mr. Sturm further states that if the petition is just an unsolicited preliminary recommendation relating to Mr. Husband's job abilities he should be entitled to respond to it, particularly if any of his superiors saw it or if it was placed in Mr. Husband's personnel file. Mr. Sturm concludes by stating that the petition may not be excluded from Mr. Husband's inspection under the authority of KRS 61.878(1)(h).
The undersigned Assistant Attorney General talked with you by telephone on July 23, 1986, in an effort to obtain additional factual information relative to the handling of this matter. You stated that the State Police have treated the so-called petition as an intra-office memorandum from Mr. Husband's co-workers to someone in the chain of command, a memorandum from a group of employees in the Department to another person within the Department.
The Department had no plans to assign Mr. Husband to a patrol car and the memorandum in opposition to such a move was based only on rumors of an assignment. In addition, the petition or memorandum was considered too nonspecific for the State Police to take any action relative to it. Not only has there been no investigation pertaining to the memorandum, but no personnel action of any kind was undertaken as a result of the receipt of the document. To the best of your knowledge the memorandum is not in Mr. Husband's personnel file but it was placed in a memorandum file.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1)(h) provides that among the public records which a public agency may exclude from public inspection in the absence of a court order authorizing inspection are those records described as follows:
"Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In OAG 86-5, copy enclosed, at page four, we concluded that a public agency's denial of a request to inspect memoranda from an inspector to his supervisor concerning the closing of a landfill operation was proper under KRS 61.878(1)(g) and (h) as the documents constitute intraoffice memoranda containing preliminary notes and personal observations and do not represent notice of a final action or decision of the public agency.
In OAG 85-104, copy enclosed, at page three, we said that the public agency's denial of a request to inspect the reports of its field inspector relative to her inspections, which contained the inspector's observations and opinions, was proper under KRS 61.878(1)(g) and (h) as such reports are intraoffice memoranda containing preliminary drafts, notes and personal observations.
KRS 61.884 deals with a person's right of access to any public record relating to him or in which he is mentioned but that statute is subject to the provisions of KRS 61.878 and the exceptions to public inspection contained therein. Thus, on the basis of the statutory provisions in effect when this matter was initiated, a state employee may be denied access to a public document mentioning his name if the document may legally be excluded from public inspection pursuant to KRS 61.878. See OAG 84-249, copy enclosed, at page three.
It is therefore the opinion of the Attorney General, on the basis of the statutory provisions in effect when the request to inspect was initiated, that the Department had the authority to withhold from public inspection pursuant to KRS 61.878(1)(h) a document in the nature of an intraoffice memorandum, from employees to a supervisor setting forth their opinions of a fellow employee, when that memorandum has neither "spawned" an investigation nor served as the basis for any kind of personnel action involving the employee mentioned in the memorandum.
As required by statute, a copy of this opinion is being sent to the requesting party, William P. Sturm, Esq., who has the right to challenge it in circuit court pursuant to KRS 61.880(5).