Request By:
Daniel F. Egbers, Esq.
Office of the Counsel
Cabinet for Human Resources
275 East Main Street - 4 West
Frankfort, Kentucky 40621
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Mike Farrell has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy certain records in your custody.
Mr. Farrell has stated that his newspaper initiated the request with the Cabinet on August 20, 1986, on forms you supplied. His newspaper requested to inspect five specific documents but this opinion will deal with only four of those documents as only those four were mentioned in Mr. Farrell's letter of appeal to this office.
The four documents involved in this appeal which the newspaper requested to inspect have been described as follows:
"Copy of monthly reports filed by Ron Bruder, director of the Northern Kentucky Treatment Center, to division of residential services between August 1985 to August 1986.
"Copy of annual report filed by Bruder in 1985.
"Copy of management review in 1985 at Northern Kentucky Treatment Center in Kenton County, done by assistant director of residential services after complaints of [mis] management from employees.
"Copy of management review started in April or May 1986. Report done following complaints of mismanagement by employees at center, handled by Allison Johnson of residential services division."
You responded to the newspaper's request in a letter to Ms. Michele Day, dated September 11, 1986. In response to the first two requests you replied: "These requests are denied as the requested documents constitute preliminary recommendations and memoranda in which opinions are expressed and policies are formulated or recommended and are exempt from application of KRS 61.870 to 61.884 pursuant to KRS 61.878(1)(h)." You also denied the last two requests and in support of your position you relied upon the response given to the first two requests.
In addition to asking this office to review your denial of the newspaper's request to inspect the particular records involved here, Mr. Farrell has presented an objection to the delay encountered in receiving a written response from the Cabinet for Human Resources.
OPINION OF THE ATTORNEY GENERAL
In connection with the duties and responsibilities of a public agency relative to a request to inspect and copy public documents, KRS 61.880(1) provides in part as follows:
"Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision . . ."
Thus the public agency is required to advise in writing the person who has requested to inspect public records of its decision within three working days of the receipt of the request. While the public agency should make every attempt to comply with the statutory timetable, if for some legitimate reason the decision cannot be made within the three day period, the public agency should at least advise the requesting party in writing that the request has been received and is being worked on and that a final decision will be communicated within a specific number of days. The public agency should also state why it has been unable to make the decision within the three day period.
In the matter on appeal the public agency failed to adhere to the requirements of KRS 61.880(1). In addition, the public agency did not conform to that part of KRS 61.880(2) which requires that a copy of the written response denying inspection of a public record shall be forwarded immediately by the public agency to the Attorney General. Hopefully, the public agency in the future will observe more closely the provisions of KRS 61.880(1) and (2).
Among the public records which may be excluded from the provisions of the Open Records Act (KRS 61.870 to KRS 61.884) in the absence of a court order authorizing inspection are those 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 connection with the application of KRS 61.878(1)(g) and (h), the Court said in part in
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659 (1982) 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 the 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 OAG 85-138, copy enclosed, we concluded that the denial by the State Police of a request to inspect a report of the management evaluation of the KSP's Auto Theft Section, prepared by the State Police Inspections and Evaluations Section, for submission to the Commissioner of the State Police for such final action or decision as he deems appropriate, was proper under KRS 61.878(1)(g) and (h) so long as the report in question neither indicates final action by the State Police nor involves a preliminary report incorporated into a final report by the State Police.
Where the county judge/executive had requested the county attorney to investigate alleged misuse of county road equipment by an elected magistrate, the county attorney's report was exempt from public inspection pursuant to KRS 61.878(1) (h). The report was not indicative of any final action taken by the fiscal court and as such was a preliminary memorandum prepared by the county attorney in the course of his investigation. See OAG 83-469, copy enclosed.
It was the opinion of this office in OAG 85-63, copy enclosed, that a city's denial of a request to inspect a document prepared by the police chief concerning his investigation into an application for a municipal adult entertainment license, the report prepared at the city council's request in connection with its review of the application, was proper under KRS 61.878(1) (g) and (h), so long as the requested document neither indicates final municipal action nor involves a preliminary report incorporated into a final municipal report. A copy of OAG 86-22 is also enclosed for your information and consideration.
It is therefore the opinion of the Attorney General that the public agency's denial of the requests to inspect and copy monthly and annual reports submitted to the central state government from one of its agencies in the field and the requests to inspect various management reviews of the field agency, can be upheld under KRS 61.878(1) (g) and (h) on the basis that the requested documents are preliminary, so long as the documents in question neither indicate final agency action nor involve the incorporation of a preliminary report into a final report of the agency, bureau or cabinet.
The public agency, however, did not conform to the requirements of KRS 61.880(1) and (2) and conformity with those provisions is expected in the future.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Mike Farrell, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).