Evidentiary Uses for Environmental Agency Inspection Reports in Kentucky: The Dangers Posed by KRE 803(8)

Note By: Henry L. Stephens, Jr., JNREL Vol. 18, No. 2

Abstract By: Mattea Van Zee, Staff Member

The Natural Resources and Environmental Protection Cabinet (NREPC) was created by the Kentucky General Assembly with the aim to protect the natural resources of the Commonwealth. This Cabinet produces Inspection Reports (IRs) and Notices of Violations (NOVs) to communicate to those jurisdictions under its authority the statutory and regulatory provisions. These reports and notices are issued solely within the discretion of the NREPC based upon the nature of the violation. Prater v. Cabinet for Human Resources, 954 S.W.2d 954 (Ky. 1997) explains the seminal differences between KRE 803(6) and KRE 803(8). With this case as a starting ground, Kentucky courts are urged to harmonize these evidence rules to perform judicial scrutiny on the validity of opinions contained in documents such as those produced by NREPC.

The use of IRs and NOVs has the potential to be powerful and dangerous when admitted into evidence without the physical testimony of the author. This outcome is inevitable if either KRE 803(6) or KRE 803(8) is utilized in the admissibility of the documents. Prater indicated that in cases where public agency documents contain opinions and conclusions of agency inspectors, the documents would not be admitted in their entirety due to the insufficient qualifications that fail to meet the status of expert opinions. It remains unanswered as to whether IRs, NOVs, and other agency documents would be admissible via KRE 803(8) in third party litigation where the agency is not a party. Courts should take heed that this particular provision may serve as an open door to the admission of "expert" opinions conveyed by public officials who may have relied on third party hearsay statements. Instead, admissibility should be sought through FRE 803(6) to prevent this outcome.

Differences also arise in the qualification of these reports as factual findings v. factual allegations. As factual allegations, the statements would not be precluded under FRE 803(8). Additionally, with the lack of expert opinion, FRE 803(6) will not provide a route to admissibility. Those attempting to have this type of evidence excluded should not only argue that there is a lack of factual findings, but also that the statements fail to meet trustworthiness standards. For admissibility in third party actions where the agency is not a party, there still remains a viable option under FRE 803(8) for the admission of conclusions or opinions based on factual investigations if the requirement of trustworthiness requirement is met. Practitioners should assume that there will be a liberal interpretation of factual findings.

Daubert v. Merill Dow Pharmaceuticals, 113 S.Ct. 2786 (1993) provides a newer framework for courts to determine the admissibility of these so-called expert opinions. The Kentucky Supreme Court has adopted this framework in FRE 702 analysis. The trial judge is required to satisfy himself of the expertise, credentials, and rationality of the expert's conclusions. Courts should also consider the weigh of depriving the jury from weighing the credibility of the witness when the testimony comes from an agent's report.