Request By:
Diana Andrews, Manager
Technical Services Branch
Division of Air Quality
Department for Environmental Protection
Natural Resources and Environmental Protection Cabinet
18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Monty Fowler has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect various documents.
While a copy of his letter to you has not been provided to this office, Mr. Fowler made a written request, dated June 7, 1990, to inspect records concerning test results relative to filters taken from a specific location, printouts setting forth the chemical contents of materials in the filters and documents from the Division of Air Quality pertaining to this particular matter.
You responded to Mr. Fowler in a letter dated June 15, 1990 and advised him in part as follows:
1. The Division for Air Quality (DAQ) has generated no test results from any filter taken from the high volume sample located at the Christian residence during the above referenced period. At this time, the division has not secured a laboratory to analyze the samples.
2. Since the filters have not yet been analyzed, there are no printouts available depicting the chemical content of the material deposited on them.
3. Since the filters have not yet been analyzed, there are no documents originated by the Division for Air Quality regarding the possible effects, chemical composition, potential danger or possible effects of any of the material analyzed from the filters.
Your letter of June 15, 1990 to Mr. Fowler also stated that your Cabinet has received a copy of a letter, dated September 26, 1989, from an E.P.A. contractor to the U.S. E.P.A. providing some preliminary information on some samples. The U.S. E.P.A. maintains that the document is exempt from inspection under the Federal Freedom of Information Act [5 USCA § 552(b)(5) - exemption for inter-agency or intra-agency memorandums]. Your Cabinet maintains that the document may be excluded from public inspection pursuant to the exceptions to public inspection set forth in KRS 61.878(1)(f), (g) and (h) and KRS 61.878(5).
In his letter of appeal to this office, dated July 10, 1990, Mr. Fowler maintains that you have improperly denied him access to public information. He further alleges that none of the state statutory exceptions to public inspection cited in your letter are applicable.
The undersigned Assistant Attorney General talked with you by telephone on the morning of July 30, 1990. You said that your Department did not have any test results available concerning the subject matter of Mr. Fowler's inquiry when you responded to him on June 15, 1990, and none were available at the time of our conversation.
OPINION OF THE ATTORNEY GENERAL
Your partial response to Mr. Fowler indicated that you did not have the records he requested relative to the test results. This is obviously a proper response when the requested documents do not exist as you cannot furnish that which you do not have or which does not exist. Your first obligation is to advise whether you have the documents requested and then, if you do, whether you will permit inspection. If you do not allow the records to be inspected you must set forth the statutorily authorized exception to public inspection which you are relying upon to deny the request.
Perhaps the test results should have been available by this time. However, this opinion is limited to dealing with the Open Records Act and from the standpoint of that Act the documents either exist or they do not exist. See OAG 87-54, copy enclosed. You have stated that the test results do not yet exist and this office has no reason to doubt the truthfulness of that statement. It may be that Mr. Fowler should consider inquiring as to the availability of the test results at some future time.
As to the copy of the letter you received, the original of which had been sent from an E.P.A. contractor to the U.S. E.P.A., dealing with preliminary information and material, we direct your attention to KRS 61.878(1)(g) and (h). Among those public records which may be withheld from public inspection in the absence of a court order authorizing inspection are the following:
(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;
Thus a document setting forth some preliminary information on some samples, which does not represent a final investigative report or study, or a final action, decision or determination on the matter, is a preliminary document which may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). See OAG 89-24, copy enclosed, as well as OAG 89-34, copy enclosed, where we said that a preliminary draft which a state agency received from a federal agency may be withheld from public inspection under the Kentucky Open Records Law.
It is, therefore, the opinion of the Attorney General that the state agency properly handled the request to inspect public documents under the Kentucky Open Records Act. The agency did not furnish copies of the test results as no such documents existed when the request was received and the agency's response was made. The public agency properly utilized its discretion to withhold from public inspection a copy of a preliminary draft or study.
As required by statute, a copy of this opinion is being mailed to the requesting party, Monty Fowler, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.