Request By:
Leslie S. Brown, Esq.
Department of Law
Natural Resources and Environmental Protection Cabinet
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ernest M. Pitt, Jr., Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect certain documents in the custody of the Cabinet.
In a letter to Ms. Susan Bush of the Cabinet's Division of Solid Waste, dated June 5, 1990, Mr. Pitt requested, in eight numerical paragraphs, comprising two typed pages, access to numerous documents and records. You replied to Mr. Pitt, on behalf of the Cabinet, in a letter dated June 16, 1990 and advised him in part as follows:
1. It appears that this Open Records Act request may have been submitted in a representative capacity on behalf of your client, Roe Creek Development, Inc. Since we are in litigation in the administrative action styled Roe Creek Development, Inc. v. Natural Resources and Environmental Protection Cabinet , File DWM-16283-90, it may be more appropriate to conduct your request in accordance with 400 KAR 1:040, which governs discovery in administrative actions. If your Open Records Act request is so designed, that constitutes a reason for denial, in accordance with KRS 61.872(5), because of the burden of having to provide for inspection of the same records twice.
2. In addition, it appears that many of the records requested are, pursuant to KRS 61.878, excluded from the application of KRS 61.870 to 61.884.
In a letter to the Attorney General's office, dated June 21, 1990, Mr. Pitt took exception to your disposition of his request and sought a review of the matter by this office. He maintained in part that his request is not related to the pending administrative action and that his request is neither voluminous nor repetitive.
You then sent Mr. Pitt a letter dated June 27, 1990, in which you specifically replied to each of his eight numerical paragraphs requesting access to various documents and records.
The first numerical paragraph requested any letter, memoranda of meetings and memoranda of telephone conversations concerning the Roe Creek Landfill and involving certain specifically named persons.
You responded in part as follows:
Any memoranda of meetings or telephone conversations would be excluded from the application of the Kentucky Open Records Act pursuant to KRS 61.878(g) and (h). KRS 61.878(g) excludes notes from the application of the Kentucky Open Records Act. In addition, KRS 61.878(h) excludes preliminary memorandum in which opinions are expressed or policies formulated or recommended. Any memoranda of meetings or phone conversations would fall under this exclusion, since they would be preliminary and would contain opinions. Therefore, your request is denied as to memoranda of meetings or telephone conversations.
As to the letters requested, a search of the file for Roe Creek Landfill, Permit No. 064.03, revealed that no such letters exist.
Access to a letter involving a Patty Wallace was denied as correspondence with a private person. One letter between a member of the Executive Branch and one of the specifically named parties was located and access to it was permitted.
The second numerical paragraph requested access to a copy of the opinion written by George Gilbert in response to a request by Susan Bush to Shelby Jett concerning the plan on which the Roe Creek permit is based.
You responded in your letter that such a document may be excluded from public inspection as a preliminary memorandum. When asked further by the undersigned about the document you advised on August 2, 1990 that if there ever was such a document it cannot be located at this time.
The third numerical paragraph requested access to any note or memorandum written by Susan Bush following a meeting on February 27, 1990 with representatives of Roe Creek Landfill and Nesbitt Engineers, Inc.
You denied access to any such note or memorandum pursuant to the exceptions to public inspection set forth in KRS 61.878(1)(g) and (h).
The fourth numerical paragraph requested access to any note or memorandum written by Shelby Jett following the meeting of February 27, 1990 referred to above.
You denied access to any such note or memorandum for the same reasons you denied access to the note or memorandum of Susan Bush.
The fifth numerical paragraph required access to the job description which describes the duties and responsibilities of Shelby Jett.
You granted access to the position description pertaining to Shelby Jett's job.
The sixth numerical paragraph requested access to all documents, memoranda and writings within Shelby Jett's personal file which he maintains concerning the Roe Creek Landfill permit.
You advised that there are no documents responsive to this request as Shelby Jett does not maintain a personal file on that subject matter.
The seventh numerical paragraph requested access to correspondence or memoranda between Shelby Jett and Donald Harker concerning the Roe Creek Landfill permit.
You denied access to this material and cited KRS 61.878(1)(g) and (h) in support of your decision.
The eighth numerical paragraph requests access to correspondence and memoranda concerning the Roe Creek Landfill between any member of the Solid Waste Management Task Force of the General Assembly and officers and employees of the Division of Solid Waste.
You advised that a search of the pertinent file revealed no such documents.
In a letter to this office dated July 11, 1990, Mr. Pitt in part sets forth his interpretation as to what constitutes a preliminary document and what may be excluded from public inspection. He also specifically mentions your handling of the request set forth in the second numerical paragraph of his letter of June 5, 1990. As you will recall, that concerns a document which you recently advised that if it ever did exist, it cannot now be located. In addition, Mr. Pitt states you should have made a more extensive search for the documents requested.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection 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 we 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.
At page 660 of its opinion in the City of Louisville case, supra , the Court summarized as follows:
In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g) and (h). This does not extend to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon.
In
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953 (1983), the Court said that if documents such as certain letters, correspondence and reports were merely internal preliminary materials, they would be exempt under the statute and the principles set out in City of Louisville, supra.
Thus, if the memoranda of meetings and telephone conversations and the other documents involved here constitute preliminary intraoffice communication setting forth opinions, observations and recommendations of various agency personnel, and they do not represent the agency's final decision or determination on any matter, then they may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). See OAG 87-32, OAG 88-85 and OAG 89-96, copies of which are enclosed. In addition, KRS 61.878(1)(g) permits a public agency to withhold correspondence with private individuals which is not intended to give notice of final action of the public agency.
Your responses that certain requested items do not exist or cannot be located are proper responses when they represent the true state of events. Obviously you cannot make available that which does not exist or that which you do not have. Willfully concealing or destroying public records with the intent to violate the Open Records Act is, of course, a Class A misdemeanor under KRS 61.991(2)(a).
While your initial response to Mr. Pitt, dated June 16, 1990, was not a proper response pursuant to KRS 61.880(1) and OAG 90-10, a copy of which is enclosed, your response to Mr. Pitt, dated June 27, 1990, though untimely, was proper and sufficient in all other respects. In view of the fact that every document requested by Mr. Pitt, except for one (which you did make available), pertained to the Roe Creek Landfill situation, your search for documents, which apparently concentrated on the Cabinet's Roe Creek files, was sufficient.
Thus, it is the opinion of this office that so long as the documents withheld from public inspection constitute preliminary drafts, notes, correspondence and memoranda and correspondence with private persons not indicating final agency action, within the meaning of KRS 61.878(1)(g) and (h) and the principles set forth in this opinion, the public agency acted properly. Furthermore,, if the agency does not in fact have the documents requested, a response to that effect is proper.
As required by statute, a copy of this opinion is being mailed to the requesting party, Ernest M. Pitt, Jr., Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.