February 1, 1996

In re: The Courier-Journal and Louisville Times Co./

Louisville and Jefferson County Health Department


This matter comes to the Attorney General on appeal from the Louisville and Jefferson County Health Department's partial denial of Patrick Howington's September 20, 1995, open records request. Mr. Howington, a reporter for the Courier-Journal, requested a copy of “the results of the health department's recent tests of iced tea at 20 Louisville-area restaurants or food establishments.” Mr. Howington specifically requested “the name and address of each of the 20 restaurants or establishments, and the fecal coliform bacteria count and total bacteria count for each.”

In a letter dated September 21, 1995, Dave Langdon responded for the Health Department. The Health Department furnished Mr. Howington with the total coliform bacteria count and fecal bacteria count for the 20 food-service establishments, but identified the establishments by number rather than by name and address. Mr. Langdon explained that the Health Department “is in the midst of an on-going investigation which will include reinspecting the food-service establishments in question.” Although he did not cite an exception authorizing nondisclosure, he stated that “release of the names of the food-service establishments at this time would compromise our investigation.”

In a follow-up letter dated October 10, 1995, Bill Wetter, Director of Environmental Health and Protection, elaborated on the Health Department's position. Mr. Wetter advised:

We respectfully deny your request for identifying names of the restaurants involved in the study. Again, this information was not part of a routine inspection, but was a special sampling performed to obtain preliminary data. The restaurants involved were chosen at random and the information obtained was not a part of an administrative adjudication. The results of the study will help the agency determine, what, if any, action it should take, and the report has not been incorporated into any final action by the agency in that regard.

Relying on KRS 61.878(1)(g), (h), [1]

and (l), he concluded, “Cooperation from the public in this type of general study, not aimed at resolving specific complaints, would be undermined if the identity of the participants was revealed.”

On behalf of the Courier-Journal, Jon Fleischaker challenges the Health Department's reliance on the cited exemptions. He urges this office to issue a decision holding that the Louisville and Jefferson County Health Department violated provisions of KRS 61.870 to 61.884 by refusing to disclose the names and addresses of the 20 area food-service establishments recently inspected for contaminated iced tea. For the reasons set forth below, and upon the authorities cited, we conclude that the Health Department's reliance on KRS 61.878(1)(h),(i), and (l) was misplaced, and that Mr. Wetter's partial denial of Mr. Howington's request violated the Act.

KRS 61.878(1)(h) authorizes the nondisclosure of:

Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information 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 action or administrative adjudication.

(Emphasis added.) In his letter to Mr. Howington, Mr. Wetter acknowledges that the disputed records are “not a part of an administrative adjudication.” Accordingly, KRS 61.878(1)(h) does not apply to the records.

KRS 61.878(1)(i) excludes from the mandatory disclosure provisions of the Open Records Act:

Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.

This office has consistently recognized that the results of an inspection, however they are characterized, do not reflect “a subjective expression of opinion but an objective report of physical facts, and in that sense [they] are final.” OAG 80-596, p. 3. With respect to restaurant inspection records, we have observed that a health department has “no legal authority . . . to deny access . . . or to attempt to place restrictions on their use.” OAG 77-585, p. 1; OAG 80-596, p. 3. These opinions are premised on the notion “that reports of inspections of enterprises regulated by law are public because of the need for public supervision of the actions of regulatory agencies and the public's right to be alerted to unsafe conditions.” OAG 80-596, p. 3; see also, OAG 89-36; OAG 91-100. Thus, we have concluded, generally, that “inspection reports of licensing and regulatory agencies are not `preliminary' and are not `preliminary memoranda in which opinions are expressed or policies formulated or recommended.'” OAG 80-596, p. 2. We believe that the semantic distinction that the Health Department attempts to draw is one of form rather than substance, and see no reason to depart from this line of opinions.

Finally, and as noted, Mr. Wetter invokes KRS 61.878(1)(l), authorizing nondisclosure of records made confidential by enactment of the General Assembly, in support of the Health Department's decision to deny Mr. Howington's request, but does not cite the corresponding legislative enactment. Although we are not obligated to do so, we have examined Chapter 212 of the Kentucky Revised Statutes, relating to local health programs, and specifically sections 212.350 through 212.625, relating to counties containing first class cities, and have found no enactment of the General Assembly restricting access to all or any portion of results generated by Health Department employees following an inspection, regardless of whether those results are characterized as random samplings, data collected for a study, or inspection reports. Accordingly, we conclude that the Health Department improperly relied on KRS 61.878(1)(l).

The Louisville and Jefferson County Health Department should immediately arrange for Mr. Howington to inspect and copy the results of the inspections, including the identities of the individual restaurants inspected.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.






Distributed to:

Bill Wetter, Director

Environmental Health and Protection

Louisville and Jefferson County

Health Department

400 East Gray Street

P. O. Box 1704

Louisville KY 40201

Jon L. Fleischaker

Wyatt, Tarrant & Combs

Citizens Plaza

Louisville KY 40202

Dave Langdon

Louisville and Jefferson County

Health Department

400 East Gray Street

P. O. Box 1704

Louisville KY 40201

Patrick Howington

The Courier-Journal

525 West Broadway

P. O. Box 740031

Louisville KY 40201-7431


[1] These provisions were recodified in 1994, and now appear at KRS 61.878(1)(h) and (i). Mr. Wetter also cited KRS 61.878(1)(l), authorizing nondisclosure of “public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.” He did not, however, cite the corresponding legislative enactment supporting nondisclosure.