Request By:
Christopher W. Johnson, Esq.
Legal Counsel
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. William J. Severs has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect various documents in the custody of the State Police.
In his letter to the State Police, the date of which we do not know, Mr. Severs requested a copy of the final report relative to the case opened on his complaint concerning the improper use of dealer license tags by a Hardinsburg car dealer.
You replied to Mr. Severs in a letter dated January 13, 1987. You denied his request and stated in part as follows:
"We are unable to comply with your request. At this time there is no 'final report' concerning your complaint. The public records that do exist concerning your complaint are preliminary memoranda in which opinions are expressed. Such memoranda are exempt from public inspection pursuant to KRS 61.878(1)
The undersigned Assistant Attorney General talked with you by telephone on January 26, 1987. You advised that the matter is currently considered to be an ongoing investigation. The only public records that exist at this time in regard to the matter are several internal memoranda of a preliminary nature from various persons in the State Police to various other persons in the State Police.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(f):
"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 exemptions 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."
In OAG 87-2, copy enclosed, this office dealt with KRS 61.878(1)(f) and we mentioned several prior opinions of this office which construed that statutory provision. We noted an opinion which concluded that a case file of the State Police is not open for public inspection so long as the case is pending. Furthermore, we referred to other opinions which have concluded that investigative files and reports maintained by criminal justice agencies are not subject to public inspection until after prosecution is completed or a determination not to prosecute has been made.
While the exemption from public inspection set forth in KRS 61.878(1)(f) will apply until the litigation has been completed or until it has been decided not to litigate the matter, the documents in question would be subject to public inspection upon completion of the litigation or the making of the decision not to litigate, unless the documents may be exempted from inspection pursuant to another statutorily recognized exception to inspection. Thus it is always possible that even after litigation has been completed or a decision not to prosecute has been made that some portion of the material in question will still not be available for public inspection.
Other public records which may be excluded from public inspection by a public agency in the absence of a court order authorizing inspection are those records described in KRS 61.878(1)(g) and (h):
"(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 City of Louisville v. Courier-Journal, Etc., Ky.App., 637 S.W.2d 658, 659 (1982), the Court said in part 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."
In Kentucky State Board of Medical Licensure v. Courier Journal, Ky.App., 663 S.W.2d 953 (1983), the Court said that if documents such as certain letters, correspondence and reports were merely internal preliminary materials, they would be exempt under the statute and the principles set out in City of Louisville, supra.
In OAG 86-32, copy enclosed, we concluded that a public agency's denial of a request to inspect those documents consisting of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda, including intra office memoranda, and other documents not representing final action of the agency, was proper as such materials may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
This office said in OAG 86-26, copy enclosed, that a public agency's denial of a request to inspect and copy documents consisting of notes, intra office memoranda and investigative reports, setting forth the opinions, observations and recommendations of agency personnel, which do not represent the agency's final decision on a matter, was proper pursuant to the provisions of KRS 61.878(1)(g) and (h). See also OAG 87-1, a copy of which is enclosed.
It is, therefore, the opinion of the Attorney General that the denial by the State Police of the request to inspect documents was proper under the Open Records Act as the only public documents in existence at this time consist of several intra-office memoranda of a preliminary nature. Furthermore, the matter is considered at the present time to be an ongoing investigation and not a closed or completed case. Thus, the public agency's decision to deny the request is supported at this time by the provisions of KRS 61.878(1)(f), (g) and (h).
As required by statute a copy of this opinion is being sent to the requesting party, Mr. William J. Severs, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).