March 18, 1996

In re: Richard Clay/Boyle County Health Department


This matter comes to the Attorney General on appeal from the Boyle County Health Department's denial of Mr. Richard Clay's open records request to inspect certain records relating to an installation permit issued by the Department.

Specifically, Mr. Clay, by letter dated September 14, 1995, requested to inspect and receive copies of the following documents relevant to this appeal:

All drawings, plans, surveys, construction application, diagrams, or other documents related to installation of a septic system on property formerly owned by Wilson Burgin, now owned by Patrick Feaster, at 12667 Springfield Road, Perryville, Kentucky.

Memoranda, soil test results, soil drainage results, notes, diaries, journals, correspondence, scientific examinations, or any other document concerning the above installation permits or septic system.

By letter dated September 19, 1995, Mr. Larry Halcomb, R. S., Environmental Supervisor, Boyle County Health Department, responded to Mr. Clay's open records request by providing him with copies of documents which he requested.

By letter dated September 21, 1995, Mr. Clay advised Mr. Halcomb that the response to his open records request was deficient. Portions of the letter relevant to the issues raised in this appeal state that the response was late and that it did not “include the drawings and notes which Mr. Singleton has told me he saw you prepare on site.”

By letter dated September 26, 1995, Mr. Halcomb responded to Mr. Clay's September 21, 1995 letter, stating in relevant part:

2). My response was late. Your September 14 request was received on September 15, a Friday. Since this office is not open on Saturdays and Sundays, I feel my September submission of numerous documents was conducted in a timely manner.

3). Submission of personal drawings and notes. This office does not feel that the release of this information is warranted due to the Opinion of the Attorney General 85-129, for which I have enclosed a copy for your convenience.

In his letter of appeal, Mr. Clay asks this office to review the denial of his request to inspect the following documents:

The drawings and notes which I seek are those prepared in support of the installation permit issued by Halcomb September 17, 1993 (which also refers to drawings that have not been furnished) and the installation inspection report issued by Halcomb November 1, 1993.

Subsequent to receipt of Mr. Clay's letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 3, the undersigned contacted Mr. Halcomb to obtain additional information and documentation regarding the issues raised in this appeal.

Mr. Halcomb stated that the records that he had withheld from disclosure were preliminary worknotes and drawings made in the course of his review leading up to the issuance of the installation permit and the installation inspection report. Mr. Halcomb maintained that, although he still considered these records exempt from disclosure as preliminary documents, he had provided the documents to Mr. Clay at a December 14, 1995 hearing along with records which Mr. Clay had requested concerning Mr. Halcomb's educational attainments.

40 KAR 1:030, Section 6, provides that if the requested documents are made available to the requesting party, the open records appeal would be considered moot. The undersigned contacted Mr. Clay, who indicated that he had not received the worknotes and drawings as Mr. Halcomb had stated. Accordingly, we will address the issues raised in this appeal based upon the documentation and information provided this office. We urge the parties to this appeal to work in a spirit of cooperation toward an amiable resolution of their differences and understandings as to which records have or have not been provided.

For the reasons which follow, it is the decision of this office that the actions of the Boyle County Health Department in responding to Mr. Clay's open records request were consistent in part and inconsistent in part with the Open Records Act.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld.

In this case, the Department did not cite a specific exception upon which it was relying that authorized the nondisclosure of the records withheld. To this extent, its response constituted a procedural violation of the Open Records Act. The mere citation or reference to a prior Attorney General's Opinion does not satisfy the requirements of KRS 61.880(1). 93-ORD-43. Procedural requirements of the Act “are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request.” 93-ORD-125, p. 5. We urge the Department to review the cited provision to insure that future responses conform to the Open Records Act.

Although the Department failed to cite the statutory exception upon which it was relying in withholding disclosure of Mr. Halcomb's preliminary worknotes and drawings, it is apparent by the citation of OAG 85-129 that it was relying upon KRS 61.878(i) and (j). In OAG 85-129, this office upheld the denial of access to records in an occupational safety and health investigative file consisting of the compliance officer's worknotes. In citing KRS 61.878(1)(g) and (h), now codified as KRS 61.878(1)(i) and (j), this office stated:

Where those worknotes are compiled in the ordinary course of an investigation of an employer worksite, and contain preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, the material is preliminary and the exemption set forth in KRS 61.878(1)(g) [now KRS 61.878(1)(i)] applies. Furthermore, work papers and intraoffice memoranda are exempt from public inspection under KRS 61.878(1)(h) [now KRS 61.878(1)(j)]. Thus, worknotes containing the compliance officer's hand-drawn diagrams of the worksite or work operations and his observations, opinions and preliminary drafts of possible citations are exempt from public inspection by KRS 61.878(1)(h) [now KRS 61.878(1)(j)].

It is the decision of this office that, to the extent that Mr. Halcomb's preliminary worknotes and drawings were not incorporated into the final agency reports, they are records exempt from disclosure. Although the exceptions to the Open Records Act have been deemed “convenient shields which public officials may use when they desire to do so, [and] not restraints to keep them from opening up any records in their custody,” OAG 79-275, at p. 3, the decision to release otherwise exempt records rests with the agency and not with the Attorney General. It is for the Boyle County Health Department to exercise its discretion in deciding whether to release all of the information in its files or to withhold some of the information under one of the exceptions.

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:

Richard Clay

Attorney at Law

P. O. Box 1256

319 West Main Street

Danville, Kentucky 40423

Larry Halcomb, R.S.

Environmental Supervisor

Boyle County Health Department

P. O. Box 398

448 South Third Street

Danville, KY 40423-0398