Request By:
Mr. Frank X. Quickert, Jr.
Director of Law
City of Louisville
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Jon L. Fleischaker, attorney for the Courier Journal and Louisville Times Company, has appealed to the Attorney General pursuant to KRS 61.880 your denial of a request to inspect public records made by Mr. Hunt Helm, a reporter for the Courier Journal. The requested records are described as:
"Any complaint leading to the Louisville Division of Police internal affairs investigation of former officer Cecil Fletcher; the record of Chief Richard Dodson's final determination in the case; and any investigative reports incorporated into or in any way related to the chief's findings."
You denied the request by letter dated January 24, 1983 signed by Paul V. Guagliardo, Assistant Director of Law. The reason given for denying access to the records was that Mr. Fletcher has an appeal pending before the Civil Service Board challenging his dismissal. The letter states: "Because the administrative process as outlined in KRS Chapter 90 is still pending, we are relying on the exemption provided in KRS 61.878(1)(f) in denying your request."
The letter denying the request also raises a specific objection to the portion of the request to inspect "any investigative reports . . . in any way related to, the chief's findings."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that the overall denial of inspection of the records requested was not in accordance with the Open Records Law, KRS 61.870 to 61.884. This opinion is based partly on an analysis of KRS 61.878(1)(f) which exempts from mandatory public disclosure:
"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. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however that the exemption provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." [Emphasis Added].
We do not believe that the exemption provided by this subsection can be telescoped out in every case as long as an appeal is pending. Once an agency head has taken final action the exemption ceases unless a special reason is shown why release of the records to inspection would harm the agency "in a prospective law enforcement action or administrative adjudication. " We believe that the last sentence of the abovequoted subsection (which we have underscored) places a burden on an agency to show special reason for withholding records after final action has been taken.
We note that KRS 90.190 provides, inter alia, the following:
"Any employee who has been suspended in excess of ten days, dismissed, or demoted holding a regular appointment, shall be entitled, upon written demand, to a public hearing by the board, at which time he shall have the right to introduce evidence in his own behalf, and be represented by counsel."
The section also provides that if the decision of the board is against the employee he may appeal to the circuit court, subsection (3), and to the Court of Appeals, subsection (6). When a person has been dismissed from his employment by the city his appeals to the board and to the court will result in open hearings. There is no obvious reason for keeping the records confidential once the agency has taken final action.
It is our opinion that since Mr. Fletcher has now been dismissed as a police officer the records showing the complaint against him and the final determination of the chief of police should be made available for public inspection. If the formal final determination of the chief of police incorporated by reference any investigative reports, such reports should also be made available for public inspection according to the holding of the
Court of Appeals in City of Louisville v. The Courier Journal and Louisville Times, Co., Ky.App., 637 S.W.2d 658, 659 (1982).
The case cited in the above paragraph holds, "that the investigative files of internal affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g)(h)." That has also been the consistent opinion of this office. OAG 80-43. If the investigative files contain reports from individuals expressing opinions or recommending policies we believe that that material will continue to be exempt as preliminary unless the agency head incorporates the reports into his final order.
In summary, it is the opinion of the Attorney General that you should make the record of the complaint against Mr. Fletcher and the final disposition of the chief of police available to public inspection. Whether the investigative reports should be made public should be determined according to the above opinion.
As directed by statute a copy of this opinion is being sent to the requester who has the right to challenge it in court.