NOT TO BE PUBLISHED
January 17, 1996
In re: Kerry B. Harvey/Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky State Police's (hereafter KSP) denial of Mr. Kerry B. Harvey's open records request to inspect and receive copies of all public records the KSP had pertaining to the Brady Handgun Violence Prevention Act.
Specifically, Mr. Harvey requested to inspect all public records which pertain or relate to:
1. Correspondence, memoranda or other communication exchange between the Kentucky State Police, Commonwealth of Kentucky Attorney General's Office, Commonwealth of Kentucky Justice Cabinet or other state agency and any agency or instrumentality of the United States Government pertaining to enforcement of the Brady Handgun Violence Prevention Act.
2. Correspondence, memoranda or other communication between the Kentucky State Police, the Justice Cabinet of the Commonwealth of Kentucky or the Kentucky Attorney General's Office and any member of the Kentucky General Assembly, office staff thereof, or the Legislative Research Commission related to House Bill390 to the 1994 Kentucky Legislative Session codified at KRS 431.102.
3. Any correspondence, memoranda or other communication related to enforcement of the Brady Handgun Violence Prevention Act between the Kentucky State Police, Commonwealth of Kentucky Justice Cabinet and the Office of the Attorney General of the Commonwealth of Kentucky, or other state or local agency.
On behalf of the KSP, Ms. Pam Burris, Paralegal, Legal Office, denied Mr. Harvey's request, advising him:
This letter is in response to your July 10, 1995, request for documents pertaining to the Brady Handgun Violence Act (Brady Bill).
Initially it is noted that your request is broad and non-specific. A search was made of our records and some records were located. However, the located documents are preliminary recommendations and preliminary memoranda in which opinions are expressed. Documents of this nature are excluded from the application in KRS 61.870 to 61.884, pursuant to KRS 61.878(1)(j), and accordingly your inspection request is denied. It is also noted that no correspondence between this department and the Attorney General or any agency of the United States, or the Legislative Research Commission was located.
The KSP's basis for denial was that the records located were preliminary recommendations and preliminary memoranda in which opinions were expressed, and, thus, exempt under KRS 61.878(1)(j). We are asked to determine if the KSP properly denied Mr. Harvey's open records request.
Under authority of KRS 61.880(2) and 40 KAR 1:030, Section 3, and in order to facilitate our review of the KSP's response, we requested additional information from the KSP. Mr. Louis F. Mathias, Jr., Attorney, KSP, indicated the only records relating to the Brady Bill which the KSP were able to find consisted of a one-page interagency memorandum from the Fiscal Affairs Office of the KSP to the Governor's Office for Policy and Management relating to KSP appropriation and personnel cap increases associated with the implementation of House Bill 390. Attached to this memorandum were two one-page documents setting forth KSP estimates of costs and personnel connected with implementation of the bill.
Pursuant to KRS 61.880(2), this office requested copies of these records for an in camera review. Our review of the records located by the KSP confirms Mr. Mathias's description of the located records. We conclude that the KSP properly denied access to these records under authority of KRS 61.878(1)(j).
This office has consistently recognized that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations may be withheld from public inspection pursuant to KRS 61.878(1)(j), unless such documents are incorporated into, or give notice of, final agency action. See OAG 92-112 and opinions cited therein.
The records located by the KSP were interagency comments and estimates between the KSP and the Governor's Office for Policy and Management explaining the fiscal impact of House Bill 390. In that posture, they are records of a preliminary nature which may be withheld from disclosure. Unless these records are incorporated into or become part of any final agency action, they are exempt from disclosure under KRS 61.878(1)(j). Accordingly, the Department of KSP properly denied Mr. Harvey's request under that exception.
Mr. Mathias further indicated that, subsequent to our request for additional information, the KSP conducted another search for the records requested by Mr. Harvey and no other records were found. This office has consistently recognized that a public agency cannot afford a requester access to documents which do not exist or which it does not have. 95-ORD-87. Accordingly, it is the decision of this office that the KSP's response to Mr. Harvey's request for records which the agency did not have was proper and consistent with the Open Records Act.
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.
A. B. CHANDLER III
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Louis F. Mathias, Jr.
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Kerry B. Harvey
Owen, Harvey & Carter
P.O. Box 259
Benton, Kentucky 42025