Request By:
Mr. William Eddins, Director
Division for Air Quality
Natural Resources Cabinet
316 St. Clair Mall
Frankfort, KY 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; V. Lynne Schroering, Assistant Attorney General
We are in receipt of an open records appeal from James L. Thomerson, legal counsel for the Lexington Herald-Leader Company. He appeals your August 23, 1990 denial of records involving Quality Blacktopping.
The requested public records at issue are:
1. The agreed order that accompanied the March 7, 1989 letter from William Eddins to Roger Pfaff of the United States EPA;
2. The August 1, 1989 letter from Dennis Conniff, an attorney with the Department of Law, to Mark Hutchinson, an attorney representing Quality Blacktopping, with the attached agreed order; and
3. The August 11, 1989 letter from Dennis Conniff to Mark Hutchinson with the attached agreed order.
You refused to disclose these documents pursuant to KRS 61.878 (1)(g) claiming they were correspondence with private individuals which were not intended to give notice of final action of a public agency.
The Herald-Leader contends that the unsigned agreed orders were not preliminary documents. Rather, it argues that if the parties eventually signed the agreed orders then they would represent the agency's final action. Therefore, it argues that the records were "intended" to be the agency's final action.
Additionally, the Herald-Leader argues that even if these documents are considered preliminary, the Cabinet should be estopped from withholding these documents. The Herald-Leader argues that the Cabinet initially permitted Mr. Wagar to review the draft of the agreed order and thus it became part of the public domain and cannot be withheld from further inspection.
OPINION OF THE ATTORNEY GENERAL
You were correct in refusing to disclose the documents in question to the Herald-Leader . Additionally, you were correct in informing the Herald-Leader that these documents were protected from disclosure pursuant to KRS 61.878 (1)(g) as correspondence with a private individual that does not give notice of final action of a public agency.
The Herald-Leader is incorrect that drafts of agreed orders are notices of final action of a public agency. Obviously, only the final agreed order actually signed and agreed to by the parties is correspondence giving notice of final action of a public agency.
Apparently, the issue of estoppel was not raised before you by the Herald-Leader . The Herald-Leader contends that the Cabinet should be estopped from denying access to the draft agreed order attached to the March 7, 1989 letter since it inadvertently allowed Mr. Wagar to review the draft. Subsequently, the Cabinet determined that it mistakenly gave the draft agreed order to the reporter. A similar issue occurred in OAG 83-140 when the agency inadvertently gave a citizen pages 1 and 2 of a document. The Attorney General rejected the citizen's arguement that the agency was estopped from refusing to send the remaining pages of the document.
A copy of this opinion will be sent to James L. Thomerson with the Lexington Herald-Leader , and both parties may challenge this opinion in circuit court pursuant to KRS 61.880(5).