Request By:
Mr. David L. Nicholas
Board of Ethics of the General Assembly
c/o Division of Occupations and Professions
Finance and Administration Cabinet
P.O. Box 456
Frankfort, Kentucky 40602-0456
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General, (502) 564-4019
By letter of October 27, 1988, Mr. Mark Chellgren, Correspondent, Associated Press, has appealed to the Attorney General's Office, your October 25, 1988 denial of his October 24, 1988 request, inter alia, for "access to and copies of the report on the Lundergan matter compiled by the board's attorney and the actual complaint drafted for Lundergan."
This appeal arises in the following context according to my understanding. On October 12, 1988 the Board of Ethics of the General Assembly met in the New Capitol Annex to consider allegations or information concerning State Rep. Jerry Lundergan, in connection with food catering contracts for several state, or state related, functions.
A part of the meeting was closed by the Board pursuant to KRS 61.810(3) and KRS 6.820(7) and (9). Following the private portion of the meeting, the Board voted to file a formal complaint against Rep. Lundergan for alleged violation of KRS 6.775(7). Board chairman Ed O'Daniel is understood to have said that a report drafted by the Board's Attorney on which the complaint was based would not be made a part of the Board's public record, and that the complaint against Rep. Lundergan also would not be made public.
Mr. Chellgren filed an appeal (October 12, 1988) with the Attorney General's Office, apparently based upon Sen. O'Daniel's remarks. This office declined to respond in a formal opinion, because no formal request to inspect records had been first tendered to the custodian of records for the Board, in accordance with KRS 61.880(2). In our response to Mr. Chellgren (October 18, 1988), we noted KRS 6.820(9), and indicated inspection of the records he sought might be denied under that section, and KRS 61.878(1)(j).
By letter of October 24, 1988, to you as custodian of records for the Board of Ethics of the General Assembly, Mr. Chellgren requested "access to and copies of the report on the Lundergan matter compiled by the board's attorney and the actual complaint drafted for Lundergan."
In a letter dated October 25, 1988 to Mr. Chellgren, denying him access to the records described in his request you indicated:
A portion of the Open Records Law, KRS 61.878 lists the type of records which '. . . are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction . . . .' Subsection (j) of this section sets out as one of the types of records to be excluded as 'Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly. ' KRS 6.820(9) serves to trigger this exclusion by providing that 'All information received by the board in the course of its investigations other than that disclosed at public hearing is confidential and may not be divulged except to the extent that the board finds there is good cause for releasing it.'
It is our conclusion that KRS 6.280, Section 9 constitutes the enactment referred to in KRS 61.878, Section 1, (j) excluding the requested document from the provisions of the open records law. Your request for access to the report by the boards's [sic] attorney relating to Representative Jerry Lundergan is therefore denied based on KRS 61.878(1)(j) and KRS 6.820(9).
In regard to your request for access to and copies of the actual complaint which the board voted to file, that document has not yet been completed and is therefore not available for public inspection.
OPINION OF THE ATTORNEY GENERAL
Mark Chellgren of the Associated Press has appealed your denial of his request for "access to and copies of the report on the Lundergan matter compiled by the board's attorney and the actual complaint drafted for Lundergan."
Citing KRS 61.878(1)(j) and KRS 6.820(9), you denied access to the report (noted above) compiled by the board's attorney
We believe this denial on the basis you cited was proper.
KRS 61.878(1), and subsection (j), exclude from inspection, except upon order of a court of competent jurisdiction:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly.
KRS 6.820(9) provides that:
All information received by the board in the course of its investigations other than that disclosed at public hearing is confidential and may not be divulged except to the extent that the Board finds there is good cause for releasing it;
The report in question appears to fall clearly within the meaning of "information received by the board in the course of its investigations." Accordingly, inspection of the report may be properly denied pursuant to KRS 61.878(1)(j) and KRS 6.820(9), until such time as the report is disclosed at a public hearing, or divulged by the board upon a finding of good cause for releasing it.
Your denial of "access to and copies of the actual complaint" (against Rep. Lundergan) was also proper.
Your October 25, 1988 denial letter stated in part regarding the complaint against Rep. Lundergan: ". . . that document has not yet been completed and is therefore not available for public inspection. "
KRS 61.878(1), and subsection (g) thereof, exclude from inspection, except upon order of a court of competent jurisdiction, "Preliminary drafts . . . ." Since it appears that actual complaint the board voted to file has not yet been completed, its current incomplete form would be termed a preliminary draft, and is thus excluded from inspection except as provided in KRS 61.878(1).
It follows that you, as custodian of records for the Board of Ethics of the General Assembly, acted consistent with the provisions of KRS 61.870 to 61.884, in denying access to, and copies of, the records in question.
In his October 27, 1988 letter of appeal to this office, Mr. Chellgren, also requested ". . . an advisory opinion regarding whether the complaint against Rep. Lundergan will be public record after it has been drafted. "
Even an incomplete document held by a public agency is a "public record. " The question is whether inspection of it must be allowed without an order of a court of competent jurisdiction. KRS 61.878.
KRS 6.820(7), (9) and (10) appear to place broad discretion in the Board to preceed confidentially. Under such provisions, perhaps even a completed complaint might be deemed confidential. At the same time, however, KRS 6.820(9) also gives the Board discretion to release information when it finds "good cause" for doing so.
Regarding the complaint involved here, you apparently will treat it as subject to inspection when it is completed, since your denial letter states regarding the complaint, ". . . that document has not yet been completed and is therefore not available for public inspection. "
As required by statute, a copy of this opinion is being sent to the appealing party, Mr. Mark R. Chellgren, who has a right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882