Request By:
Stanley C. Nickell, Esq.
Assistant Corporation Counsel
City of Ashland, Legal Department
P.O. Box 1839
Ashland, Kentucky 41105-1839
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ernest M. Pitt, Jr., Esq. has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various records in the custody of the city of Ashland.
In his letter to you, dated May 5, 1987, Mr. Pitt referred to personnel order No. 50/5201/42 signed by the city manager to the effect that Patrolman Keller was being disciplined for a violation of Article VI of the Ashland Police Department Rules and Regulations and General Order E-1 of the Ashland Police Department. He said that you did not provide him with copies of all of the complaints filed against Officer Keller and he then made the following request:
"We request that you provide to The Dailey Independent, through this office, copies of all complaints filed against Patrolman Keller which led to the entry of the personnel order 50/5201/42 dated April 8, 1987, and personnel order No. 317 dated April 8, 1987, signed by Ronald W. McBride, Chief of Police, City of Ashland."
You replied to Mr. Pitt in a letter dated May 11, 1987, and advised him as follows:
"In response to your May 5th request for additional complaints filed regarding Patrolman Keller which resulted in final action taken as recited in Personnel Orders No. 317 and 50/5201/42, I take the position that the included materials between the orders and the complaint by Mary B. Wilson, dated March 17, 1987, are the investigative files of internal affairs and, as such, are exempt from public inspection. "
In his letter of appeal to this office, dated May 13, 1987, Mr. Pitt requested that the Attorney General issue an opinion concerning the validity of the action taken by the city of Ashland as expressed in your letter to him of May 11, 1987.
Attached to the copy of your letter of May 11, 1987, addressed to Mr. Pitt, which was furnished to this office, were copies of numerous documents pertaining to the matter of the disciplining of Patrolman Keller. It seems clear that Mr. Pitt has been furnished with copies of "Personnel Order No. 50/5201/42" signed by the City Manager, "Personnel Order No. 317" signed by the Chief of Police and the letter of Mary B. Wilson to Captain Tom Kelly of the Ashland Police Department, dated Mary 17, 1987, the letter of complaint which "initially spawned the investigation" of Patrolman Keller's activities and led to the subsequent disciplining of that officer as expressed in the personnel orders.
The undersigned Assistant Attorney General has reviewed the materials you submitted to this office. Approximately 46 separate documents are involved. Of those documents, twenty-one would be classified by the undersigned as preliminary intra-office memoranda expressing various opinions and not representing final agency action, thirteen are witness statements, one cannot be read and eleven are other types of documents. None of these eleven documents, however, are "complaints filed against Patrolman Keller" which is what Mr. Pitt asked for in his letter to you of May 5, 1987.
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 set forth 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 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 services 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."
Thus it appears that you have so far complied with the provisions of the above captioned case in that you have made available for public inspection the documents indicating the city's final action relative to the disciplinary case of Patrolman Keller (Personnel Order No. 50/5201/42 signed by the City Manager and Personnel Order No. 317 signed by the Chief of Police) and the document which "initially spawned the investigation" involving Patrolman Keller, the letter of complaint of Mary B. Wilson to Captain Tom Kelly of the Ashland Police Department, dated March 17, 1987.
Mr. Pitt has requested that you provide him with copies of all complaints filed against Patrolman Keller. You have provided him with a copy of the complaint which initiated the investigation. We need not concern ourselves with the availability of other complaints since, while there are many documents mentioning Patrolman Keller, there are no other complaints. You obviously cannot furnish copies of documents that you do not have. Also, the requesting party is required to describe the document he seeks to inspect with sufficient specificity so that the public agency will know what it is looking for and attempting to make available. See OAG 84-342, copy enclosed.
The two largest categories of documents withheld from Mr. Pitt are intra office memoranda and witness statements. Those documents were not specifically requested but even if they had been, the public agency may withhold such items from public inspection pursuant to KRS 61.878(1)(g) and (h). We have previously dealt with these questions and we direct your attention to OAG 84-249, OAG 86-19 and OAG 86-22, copies of and OAG 86-22, copies of which are enclosed.
Therefore, it is the opinion of the Attorney General that the city properly responded to a request for copies of all complaints filed against a particular police officer when it only made available for public inspection copies of the documents setting forth the city's final action relative to the disciplinary case pertaining to the policeman and a copy of the letter of complaint which "initially spawned the investigation" involving that officer.
As required by statute, a copy of this opinion is being sent to the requesting party, Ernest M. Pitt, Jr., Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).