Request By:
Ms. Carol Jean Poole
Division of Waste Management
Frankfort Office Park
18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
Mr. Kit Wagar, Staff Writer for the "Lexington Herald-Leader," appealed your partial denial of his request for records maintained by your agency. His request was made on 21 December 1989, pursuant to Kentucky's Open Records Act, KRS 61.870 et seq ., (the Act). You responded to Mr. Wagar's request on 17 January 1990.
Mr. Wagar appealed the denial of his request to this office on 16 February 1990. Subsequently, a substantial amount of the records he sought were made available. Mr. Wagar notified this office of that fact by letter dated 6 September 1990, and narrowed the scope of his appeal to the records still undisclosed. As stated by Mr. Wagar in his latest correspondence to this office:
The issue still pending involves Waste Management's blanket refusal to produce records that reflect:
how, when or why the division adopted its policy of withholding intergovernmental review endorsements because of a county's failure to pursue a solid waste management system;
how or why the division abruptly scrapped the same policy sometime between September and November 1989;
what the division's policy was on when to endorse or not endorse projects in the intergovernmental review process;
whether the policy was ever modified before it was scrapped in late 1989.
You stated as the basis of your refusal to honor the request as follows:
This letter is to inform you that your request is denied in part. Specifically, your request is denied insofar as the records of the Division of Waste Management consist of preliminary drafts, notes, preliminary recommendations, preliminary memoranda in which opinions are expressed and correspondence containing information compiled in the process of detecting statutory and regulatory violations. These records are authorized to be withheld pursuant to the exceptions set forth in KRS 61.878(1)(g) and (h), and do not constitute final agency action.
Opinion of the Attorney General
KRS 61.878(1)(g) does allow a public agency such as yours to withhold records of "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " Similarly, KRS 61.878(1)(h) allows your agency to withhold "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." You cited to Mr. Wagar as an additional ground for your denial the fact that some of the correspondence contained information compiled in the process of detecting statutory and regulatory violations. These last records you described are in some cases excluded from the Act's disclosure requirements under KRS 61.878(1)(f). You did not refer to that part of the Act as a reason for your denial, but we will assume for the purpose of this opinion that that was your intent because the language that you employed parrots that of subpart (f).
This office perceives a problem with your denial of the records you deemed to be preliminary in nature. KRS 61.880(1) requires an agency's denial to include, not only a statement of the exception authorizing the withholding, but also "a brief explanation of how the exception applies to the record withheld. "
This office also perceives a problem with your denial of the records you deemed to have been compiled in the process of detecting violations. KRS 61.878(1)(f) excludes such records from mandatory disclosure only if disclosure would "harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement or administrative adjudication." Additionally, subpart (f) withdraws any exemption from such records "after enforcement is completed or a decision is made to take no action." Thus, not all records compiled in the process of law enforcement are exempt, and even those that are exempt may subsequently lose that protected status. Again, your denial under KRS 61.878(f) failed to comply with KRS 61.880(1) by not including a brief explanation of how those records are clothed in that exemptive protection.
It is the opinion of the Attorney General that you must either disclose the records that were requested, or provide the requester with the brief explanation of how the exemptions upon which you rely allow you to deny inspection. Should you disagree with this partial upholding of the request, you may initiate proceedings within thirty days for injunctive or declaratory relief in the circuit court of the district where the records are maintained. Pursuant to KRS 61.880(2), a copy of this opinion is being sent to Mr. Kit Wagar who requested it.