Request By:
Ms. Kathryn M. Hargraves
Natural Resources and Environmental
Protection Cabinet, Legal Division
Capital Plaza Tower, Fifth Floor
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
James L. Thomerson, on behalf of his client "The Lexington Herald-Leader," has appealed to the Attorney General your partial denial of Staff Writer Kit Wagar's request to inspect your agency's records made in writing on 20 April 1990, pursuant to Kentucky's Open Records Act. KRS 61.870 - .884 (the Act).
Mr. Wagar's request was made in four categories. He elaborated as to the first and fourth categories by including a non-exhaustive list of subcategories. The four categories from which Mr. Wagar sought records were described by him in his request as follows:
1. All records maintained by the commissioner's office involving the use of the State Clearinghouse's intergovernmental review process to enforce environmental regulations since Jan. 1, 1987.
2. All records maintained by the commissioner's office involving Tri-County Manufacturing and Assembly of Williamsburg.
3. All records maintained by the commissioner's office involving ATR Wire & Cable of Danville.
4. All records maintained by the commissioner's office involving Quality Blacktopping Co., which does business as Greenville Quarries.
As to the first category, you made some records available, but most you refused to disclose. The records you refused to make available included those mentioned in the subcategories which were memoranda, notes, recommendations, correspondence or other documents. The basis you gave for your refusal was that these records are not subject to the disclosure requirements of the Act, being excluded therefrom as "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)(h).
Inspection of the records which are preliminary recommendations or memoranda was properly denied. However, KRS 61.878(1)(h) does not address correspondence or notes. Those records are addressed as exclusions at KRS 61.878(1)(g), which you did not give as a reason for denial. Thus, your denial of the requested correspondence and notes based upon KRS 61.878(1)(h) was improper unless their substance is of preliminary recommendations or preliminary memoranda.
The opinion of this office is that you should review the requested information in category one, and, pursuant to KRS 61.878(4), separate all records which in substance are preliminary recommendations and preliminary memoranda. Those you may continue to withhold from inspection. All other requested records you must make available for inspection in a manner consistent with the Act. This would raise a consideration of presenting an unreasonable burden upon you and your agency, thereby relieving you of the duty as provided by KRS 61.872(5), were it not for your statements to Mr. Wagar in your letter to him of 7 May 1990, to the effect taht you are not unwilling to comply with the request on that ground.
Categories two, three and four describe "all records maintained by the Commissioner's office" relating to three private businesses operating in Kentucky. You responded to Mr. Wagar's request for these records by stating that the Commissioner has no such records and directing Mr. Wagar to the agency which does. It is the opinion of this office that your response to the request for records described in categories two through four was proper under KRS 61.872(3).
A copy of this opinion is being sent to James L. Thomerson, Stoll, Keenon and Park, 1000 First Security Plaza, Lexington, Kentucky 40507-1380, who requested it, pursuant to KRS 61.880(2).