Request By:
Mr. L. Larry Harper, Superintendent
McCracken County Public Schools
250 Bleich Road
Paducah, Kentucky 42003-5598
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Jim Paxton, editor of The Paducah Sun , has appealed to the Attorney General pursuant to KRS 61.880 your denial of his April 9, 1991, request to inspect certain records in the possession of the McCracken County Public Schools. On April 9, 1991, Mr. Paxton submitted a request to your office for access to:
[D]ocuments compiled by the McCracken County Schools during the investigation of an incident involving alleged detention of a student in a storage closet at Lone Oak Middle School . . . in October, 1990.
In addition, Mr. Paxton requested access to "all written findings and recommendations resulting from the aforementioned investigation."
You denied Mr. Paxton's request in a letter dated April 11, 1991, relying on KRS 61.878(1)(g) and (h). In support of your position, you stated that the requested documents constitute "an internal preliminary report used . . . in rendering a final decision that resulted in disciplinary action against a certified employee of [the] school system . . . . " Additionally, you maintained that the records were exempt under KRS 61.878(1)(j), which authorizes nondisclosure of public records or information made confidential by enactment of the General Assembly, since KRS 161.790 provides for an optional private hearing in disciplinary proceedings against teachers. Finally, you noted that under the federal Family Education and Privacy Act, 20 U.S.C. § 1232(g), your system might be penalized by the withholding of federal funds if it released a report involving a student.
In his letter of appeal to this office, Mr. Paxton expresses his belief that the Kentucky Court of Appeals nonfinal decision in
Courier Journal & Louisville Times Co. v. The University of Kentucky , Ky.App., S.W.2d , 37 K.L.S. 15, p.17 (December 31, 1990), is dispositive. He asks that we review your denial of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you were correct in denying Mr. Paxton's request.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1)(g) and (h) authorize nondisclosure of records which are characterized as:
(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;
The courts, and this Office, have interpreted these provisions on a number of occasions. A review of these opinions demonstrates that internal investigative files, such as those at issue in this appeal, are exempt under the open records law, unless they are adopted by the agency as part of its final action.
City of Louisville v. The Courier-Journal & Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953 (1983);
Courier Journal & Louisville Times Co. v. The University of Kentucky , Ky.App., S.W.2d , 37 K.L.S. 15, p.17 (December 31, 1990), motion for discretionary review filed, January 10, 1991; OAG 83-41; OAG 87-64; OAG 88-25; OAG 91-23.
In City of Louisville, supra, the Kentucky Court of Appeals held that subsections (g) and (h) authorized nondisclosure of a report prepared by the Internal Affairs Unit of the Louisville Police Department regarding citizen complaints against an officer. The court reasoned:
Internal Affairs . . . 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 recommendation as part of his final action, clearly the preliminary characterization is lost to that extent.
City of Louisville, supra, at 659. The Court reached the same result in Kentucky State Board of Medical Licensure, supra, holding:
[T]hose documents defined in subsections (g) and (h) which become part of the records adopted by the Board as the basis of its final action, become releasable as public records under subsection (f) [relating to records of agencies involved in administrative adjudications], unless exempted by other provisions of KRS 61.870 through KRS 61.884. Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under subsections (g) and (h) of the Act . . . .
Kentucky State Board of Medical Licensure, supra, at 956.
These opinions are entirely consistent with the court's most recent interpretation of the cited exemptions. In
Courier-Journal & Louisville Times Co. v. The University of Kentucky , supra, the Court of Appeals held that although portions of the university's response during an NCAA investigation may have been exempt from disclosure during the investigation as preliminary drafts and notes, when the investigation was concluded, the response, which incorporated these drafts and notes, became correspondence intended to give notice of the University's final action, and was therefore no longer exempt. Rejecting the trial court's reasoning, the Court of Appeals opined:
It is the University [and not the NCAA] which is the public agency, and, therefore, the University's final action which is controlling . . . . It makes no difference under the Open Records Act whether the Response was 'adopted' by the NCAA or not. The adoption of these matters into the University's formal response is what removed or destroyed their preliminary characterization. Any preliminary reports generated during the investigation prior to the submission of the final Response could fall within the exemptions of subsections (g) and (h); but only if they were not included and adopted as part of the Response . Kentucky State Board of Medical Licensure v. Courier-Journal .
Courier Journal & Louisville Times Co. , supra, at 18. (Emphasis added.) Continuing, the court observed:
When the agency compiles and submits a report , which incorporates that information which might otherwise be protected, the preliminary status of the information is dissolved to the extent it is used in the report , and the report becomes a public record subject to full disclosure.
Courier Journal & Louisville Times Co. , supra, at 18. (Emphasis added.)
Simply stated, the court did not intend to eliminate the exemptions for preliminary notes, recommendations, memoranda, etc., after an agency has taken final action. It merely recognized that where, as in the university's case, the agency's final action takes the form of a response incorporating documents deemed preliminary prior to final action, those documents lose their preliminary status and are no longer exempt. To suggest any other interpretation would jeopardize the integrity of an agency's decision-making process by exposing all of its pre-decisional documents to inspection, regardless of whether they were adopted as part of its final action.
This Office has consistently held that preliminary interoffice or intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the department's final action, may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). OAG 83-41; OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 91-23. The documents in question fall squarely within these exceptions to disclosure permitted an agency.
In OAG 91-22, we were asked to determine whether these same materials could be withheld from the Department of Public Advocacy, in its role as advocate for the rights of children. Citing KRS 61.878(1)(g) and (h), and the court's opinion in City of Louisville, supra, we held that in most instances, these exemptions would authorize nondisclosure. Because the requester was another public agency, however, we concluded that disclosure was required under KRS 61.878(5), which mandates the sharing of information between public agencies when the exchange is necessary to the performance of a legitimate government function. This provision is inapplicable to Mr. Paxton's request, and the documents are exempt under KRS 61.878(1)(g) and (h).
We have examined the letter of reprimand which you issued to the individual who was the subject of this investigation. It enumerates the charges against him and advises him of the action taken against him. It does not refer to, or incorporate any portion of, the report compiled in the course of the investigation. The documents which comprise the report were preliminary to the final decision and were properly withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). Because these exceptions authorize the withholding of the requested documents, we need not decide whether they are also exempt under KRS 61.878(1)(j) or the Family Education and Privacy Rights Act. With respect to these documents, inspection was properly denied.
As required by statute, a copy of this opinion will be sent to Mr. Jim Paxton. Mr. Paxton may challenge it by instituting proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court. KRS 61.880(5).