Request By:
James G. Hodge, Esq.
308 Legal Arts Building
200 South Seventh Street
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Kimberly K. Greene, Esq., on behalf of her clients, The Courier-Journal, The Louisville Times, and Mr. Lee Forst, a reporter for The Louisville Times, has appealed to the Attorney General pursuant to KRS 61.880 your denial of Mr. Forst's request to inspect certain public records in the custody of the Lyndon Fire Protection District. You represent the fire district and its Board of Trustees. Mr. Forst described the documents in question as all books, files and records relating to charges filed or complaints lodged against Fire Chief Jim Baker or any other officers in the fire department as well as any information on the resignation of Assistant Fire Chief Jack Deuser. The information requested was described more specifically as follows:
"1. Charges filed by Jefferson County Judge Bremer Ehrler.
"2. Charges filed Sunday, Sept. 22, by eight Lyndon fire fighters presently on a leave of absence.
"3. Charges filed by the Lyndon Volunteer Fire District Board.
"4. Complaints filed by eight Lyndon fire fighters now on a leave of absence from the department.
"5. Minutes from the board's Sept. 11 meeting.
"6. Any information relating to the resignation of assistant fire chief Jack Deuser."
In your letter to Mr. Forst, dated September 26, 1985, you advised him that the records and information relating to charges and complaints lodged against James Baker or any other officer and information on the resignation of Assistant Fire Chief Jack Deuser were not available for public inspection pursuant to the exemptions set forth in KRS 61.878(1)(a) and (h). You further advised Mr. Forst that the minutes of the Board's meeting of September 11, 1985 were excluded from public inspection as it was an executive session concerned only with charges and complaints involving district personnel. You stated that information relating to the resignation of the assistant fire chief was not subject to public inspection because of the exemption relating to privacy.
Ms. Greene's request for an opinion was contained in a rather lengthy letter wherein she stated in part that charges and complaints were filed with the fire district's Board of Trustees by several Lyndon firefighters and others against Fire Chief Jim Baker. These complaints and charges were discussed by the Board of Trustees at their September 1985 meeting at which the Board voted to discharge Mr. Baker from his position as Fire Chief. She maintains that the Board of Trustees did take final action on the charges and complaints even though approximately one week later the Board of Trustees reversed themselves and voted to reinstate Mr. Baker. While we do not know whether the provisions of KRS 75.130 and KRS 95.450 were complied with, we will attempt to deal with the matters presented by Ms. Greene's appeal.
Opinion of the Attorney General
Among the items which may be excluded from public inspection are those set forth in KRS 61.878(1)(h) dealing with preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Another exception to the inspection of public records is set forth in KRS 61.878(1)(a) and it deals with the clearly unwarranted invasion of personal privacy.
A case which is relevant to the issues presented by this appeal is
City of Louisville v. The Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). The court said in part that once final action is taken or a final decision is made, any complaint which spawned the investigation becomes incorporated into the final action and is at that time open to public inspection. At pages 659 - 660 of its opinion the court said in part as follows:
". . . We do not find that the complaints per se are exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. We acknowledge that it is possible that these complaints could be afforded continuing exemption under subsection (g) relating to preliminary correspondence with private individuals; however, that determination would be made upon consideration of the facts on a case-by-case basis and would be dealt with under KRS 61.878(3): 'If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.'"
"In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection under KRS 61.878(1)(g) and
(h). This does not extend to the complaints to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon."
Although the issue of complainant's identity was the complainant's identity was not considered by the court, this Office said in OAG 85-126, copy enclosed, at page three, that the complainant's identity is exempt from public inspection under KRS 61.878(1)(a) in the absence of a court order requiring the release of such information. Pursuant to KRS 61.878(3) a public agency is required to separate the excepted material from the nonexcepted material and make the nonexcepted material available for public inspection.
In connection with the inspection of the complaints which initially spawned the investigation which has been completed see also OAG 85-77 and OAG 83-425, copies of which are enclosed.
It is therefore the opinion of the Attorney General that public inspection of the charges and complaints which spawned an investigation relative to the fire district's Fire Chief should have been permitted since the fire district's Board has concluded its investigation of the matter and made a determination concerning those charges and complaints. The identities of the complainants need not be released and those charges and complaints relating to persons against whom the Board of Trustees has not finalized its actions and determinations need not be made available for public inspection. KRS 61.878(3) requires that the public agency (the fire district) separate the nonexempt material from the exempt material and make the nonexempt material available for public inspection.
In connection with the resignation of the Assistant Fire Chief, this Office said in OAG 81-345, copy enclosed, at page three, that a letter of resignation of a public employee is not excluded from public inspection by KRS 61.878(1)(a). The privacy exemption applies only to matters which have no connection with public business. A fire district assistant fire chief is employed by a public agency and any matter having to do with his employment is the public's business.
It is therefore the opinion of the Attorney General that the Assistant Fire Chief's letter of resignation should have been made available for public inspection. We cannot make any further statements regarding the resignation as neither party has identified the nature of the other information relating to the resignation.
As to the minutes of the Board's meeting of September 11, you state that the meeting in question was conducted in executive session as it concerned the charges and complaints made against fire district personnel. KRS 61.835 requires that the minutes of action taken at every meeting of a public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection.
This Office has dealt with the minutes of a properly conducted executive or closed session in several opinions including OAG 81-387 and OAG 81-235, copies of which are enclosed. In OAG 81-387 it was noted that the minutes of a public agency when a closed session is held should show that the formality set forth in KRS 61.815 was observed before going into the closed session and the general subject of the closed session (such as a personnel matter). The minutes need not, however, show information which would defeat the purpose of holding a closed session on an authorized subject matter.
It is, therefore, the opinion of the Attorney General that the minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection if to do so would defeat the purpose of having conducted a closed session.
As required by statute a copy of this opinion is being sent to the requesting party, Kimberly K. Greene, Esq., and either party has the right to challenge it in circuit court pursuant to KRS 61.880(5).