Request By:
Mr. David L. Nicholas
Director
Division of Occupations and Professions
Finance and Administration Cabinet
Department for Administration
P.O. Box 456
Frankfort, Kentucky 40602
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Jon L. Fleischaker, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of the request of his client, Mr. Andrew Wolfson, a reporter for The Courier-Journal, to inspect various public records in your custody. Mr. Wolfson described the records in question as "copies of and/or access to all documents regarding Dr. A. P. Tadajewski."
In your first letter to Mr. Wolfson, dated October 23, 1985, you stated that his request was broad and general in nature. You said you were referring his request to the Attorney General. Your letter to Mr. Wolfson, dated November 4, 1985, stated that this Office did not answer the question you raised. (This is normal procedure for this Office once a request to inspect has been filed with a public agency and before an appeal of a denial has been directed to this Office). Your letter further said that the request to inspect was being denied because the request is too broad and general in nature and it does not identify the nature of the documents desired.
Mr. Fleischaker's letter of appeal to this Office stated in part that you had furnished him with copies of various documents involving Mr. A. P. Tadajewski, including copies of the Board of Examiners of Psychologists complaint against him, the Board's Amended Complaint against him, the Board's Second Amended Complaint against him and the Board's Order of 10-16-85 dismissing without prejudice the administrative action against Mr. Tadajewski. Mr. Fleischaker cited the case of Kentucky State Board of Medical Licensure v. The Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1984) in support of his position that you improperly denied his client's request to inspect the public documents. He further maintained that final action has been taken by the Psychologists Board relative to complaints filed against Mr. Tadajewski and that those complaints and other documents in the file which were incorporated into the Board's final action are now subject to public inspection.
The undersigned Assistant Attorney General talked with you by telephone the morning of November 25, 1985. You stated in part that on the basis of letters to the Psychologists Board from several persons, that Board drew up a complaint against Mr. Tadajewski and scheduled a hearing on the matter. The Board, in fact, prepared several complaints. However, before any hearing was held relative to any of the complaints, Mr. Tadajewski submitted a letter of resignation in regard to his position as a licensed psychologist and his case was dismissed.
In a document dated October 16, 1985, the Board accepted both Mr. Tadajewski's letter of resignation and the tendered license to practice his profession. Certain conditions were attached to the acceptance of these documents and the dismissal of the case against him but no findings were made concerning any of the complaints. The Board to this date has never seen or considered some of the documents in the file pertaining to the complaints.
OPINION OF THE ATTORNEY GENERAL
This Office has considered the case of Kentucky State Board of Medical Licensure v. The Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1984). That case does hold that once final action is taken by a Board, the initial complaints which spawned the Board's investigation are subject to public scrutiny. Furthermore, those preliminary letters, notes, reports and correspondence, if adopted by the Board as part of its final action, are then subject to public inspection as their preliminary characterization is lost.
In the situation here, however, while the Board has received several complaints concerning the activities of a former licensed psychologist and while the Board itself prepared complaints against that person and scheduled a hearing relative to those matters, no final action has been taken on those complaints. The former psychologist submitted a resignation from the practice of his profession and tendered his license to practice his profession before any hearing relative to the complaints was ever conducted and before any action was taken by the Board pertaining to those complaints. While those documents were accepted with conditions attached nothing associated with their acceptance involved a final decision or final action concerning the complaints.
Since the Board has not, at this time, taken any final action regarding the complaints made against the former psychologist, those complaints of private persons may be withheld from public inspection pursuant to KRS 61.878(1)(g). Complaints from public agencies and preliminary notes, reports and memoranda may be withheld under these circumstances pursuant to KRS 61.878(1)(h). In OAG 82-263, copy enclosed, in dealing with the Medical Licensure Board, we said in part at page three as follows:
"It is, therefore, our opinion that the Board of Medical Licensure may decline to allow access to documents connected with a complaint received by the Board but which were never used in a formal complaint against a licensee."
While your letter denying the request to inspect public records should have been more specific and although you did not rely upon the rationale expressed here, your denial of the request to inspect the complaints and other documents pertaining to those complaints, involving a former licensed psychologist under the jurisdiction of the Psychologists Board, can be upheld since the Board never took any final action relative to those complaints as the person submitted his resignation from practice and tendered his license to practice before any final action could be taken concerning the complaints.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Fleischaker, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).