Request By:
Major Bob Stallins
Official Custodian of Records
Kentucky State Police
Information Services Branch
1250 Louisville Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Derrick G. Harvey and Mr. Sammy L. Leonard have appealed to the Attorney General pursuant to KRS 61.880 your partial denial of their request to inspect certain public records in your custody.
In a letter to you dated August 9, 1986, Messrs. Harvey and Leonard requested that you furnish them with copies of various documents pertaining to a complaint filed with the State Police as a result of the arrest of Derrick G. Harvey by a Kentucky State Police Detective. The complaint was subsequently investigated by the State Police and the matter was concluded, from the standpoint of the State Police, by means of a letter to Derrick G. Harvey, dated July 25, 1986, from Captain David N. Williams of the Internal Affairs Section.
The letter to you from Messrs. Harvey and Leonard contained four requests for copies of documents. Your letter of August 15, 1986, in response to those requests, denied two of them. The letter to you requested, "The names, addresses, and telephone numbers of any and all persons contacted in reference to the investigation of this complaint." You denied that request and cited KRS 61.878(1)(a), (g) and (h) in support of your decision as well as four opinions of this office and the case of City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982).
The letter to you also requested, "A copy of any and all papers, cards, tapes, discs, and/or other documentary materials in the possession of or retained by the Kentucky State Police in reference to said investigation." You denied that request and relied upon the same authority cited in support of your previous denial.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884) in the absence of an order of a court of competent jurisdiction authorizing inspection are those described in KRS 61.878(1)(a), (g) and (h):
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
* * * *
"(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In connection with the application of KRS 61.878(1)(g) and (h), the Court said in part in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659 (1982) as follows:
"It is the opinion of this Court that subsections (g) and (h) quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
"Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent."
At page 660 of its opinion in the City of Louisville case, supra, the Court summarized as follows:
"In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g) and (h). This does not extend 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."
In OAG 85-135, copy enclosed, we said that the public agency's denial of the request to inspect and copy those records in a police investigative file, consisting of interviews with a person's co-workers where those co-workers expressed their personal opinions on a variety of matters, was proper as such material is properly excluded from public inspection pursuant to KRS 61.878(1)(a), (g) and (h). This office in OAG 85-95, copy enclosed, upheld the denial of a request to inspect the statement of a police officer made in connection with a complaint filed against the police officer by the requesting party on the grounds that such a statement is a preliminary record. In addition, in OAG 84-249, copy enclosed, this office said that witness statements in a police internal investigative file are exempt from public inspection as preliminary documents.
This office concluded in OAG 86-22, copy enclosed, at page six, as follows:
"It is therefore the opinion of the Attorney General that the public agency's denial of the request to inspect and copy records pertaining to a professional standards internal affairs investigation of a former state trooper, consisting of preliminary drafts and notes, preliminary memoranda and reports containing the opinions, recommendations and observations of the investigating officers, a polygraph test and a report of the person administering the polygraph examination, was proper under the Open Records Act as such reports and documents may be excluded from public inspection pursuant to KRS 61.878(1)(a), (g) and (h) . . ."
Thus it is the opinion of the Attorney General that the public agency's denial of the request to inspect and copy public documents pertaining to a complaint and the subsequent investigation of that complaint which consist of names, addresses and telephone numbers of persons contacted and other material of a preliminary nature was proper as such records may be excluded from public inspection by a public agency under the authority of KRS 61.878(1)(a), (g) and (h).
As required by statute a copy of this opinion is being sent to the requesting parties, Messrs. Harvey and Leonard, who have the right to challenge it in circuit court pursuant to KRS 61.880(5).