Request By:
Mr. Steve Hardin
City Clerk
City of Springfield
127 West Main
Springfield, Kentucky 40069
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Ms. Ninie Glasscock, managing editor of "The Springfield Sun," has appealed to the Attorney General pursuant to KRS 61.880 your response to her open record request to inspect and copy "complaints filed against Springfield Chief of Police Artie Porter by Springfield Police officers Paul O'Bryan and Connie Fowler on or about May 3, 1991, and referred to in the attached Notice of Suspension dated May 4, 1991, and signed by Mayor John Cecconi." In her June 3, 1991, open record request, Ms. Glasscock further stated that she was aware that the Springfield City Council took final action on the suspension case against Chief Porter when it unanimously passed a resolution agreed to by both parties. A copy of that resolution, which was passed by the council on May 30, 1991, was attached to her open record request made on behalf of "The Springfield Sun," radio station WMQQ in Springfield and radio station WLBN/WLSK in Lebanon.
You denied this open record request by memorandum dated June 5, 1991, stating in part as follows: 1. The complaints contained information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. (KRS 61.878(1)(a)[.]) The resolution of the internal investigation was as the result of a negotiated settlement between the City and Chief Porter. Public disclosure of the complaints was not a part of the settlement agreement.
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2. The [c]omplaints are a part of the records of the Police Department investigation and the information contained therein, if released to the public, could harm the adjudication process by which a settlement was reached. (KRS 61.878(1)(f).[)]
3. The complaints constitute preliminary correspondence and should be subject to continuing exemptions from the Open Records Act. (KRS 61.878(1)(g)[.)]
Ms. Glasscock filed an appeal of your denial by letter dated June 8, 1991, and received in this Office on July 2, 1991. Ms. Glasscock argued in her appeal memorandum in part as follows:
1. Clearly the chief of police is a public official and the people who complained about him were, at the time of the complaints, under his direct supervision. The officers' complaints about the chief were not complaints about the chief's personal life but about how he performed his duties as a police officer. The acts of a police chief in the performance of his official duties are clearly open to the scrutiny of the public.
2. The courts have held (in cases such as the City of Louisville v. The Courier Journal and Louisville Times Co. , Feb. 12, 1982, and the Kentucky State Board of Medical Licensure v. The Courier Journal and Louisville Times Co. , Oct. 14, 1983;) that documents in an investigation must be released once there has been a final disposition of the charges. Obviously the city council's action on May 3, when it bypassed a public hearing by adopting a document called a 'resolution' to the disciplinary proceeding, constituted a final action on the charges against the chief.
The undersigned Assistant Attorney General requested and received a copy of the two complaints, or public records involved, pursuant to KRS 61.880(2). Hon. E. Gregory Goatley, city attorney for Springfield, responded to Ms. Glasscock's appeal memorandum by letter dated July 23, 1991, reaffirming the City's position that the two complaints were exempt from inspection.
The undersigned Assistant Attorney General spoke with Ms. Glasscock by telephone on August 2, 1991, and this conversation confirmed that the City of Springfield had made the two complaints or public records in question available to Ms. Glasscock for inspection and copying. Nonetheless, Ms. Glasscock still insists that she desires an Attorney General opinion on this matter.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part as follows:
A copy of the written response denying inspection of a public record shall be forwarded immediately by the agency to the attorney general of the Commonwealth of Kentucky. If requested by the person seeking inspection, the attorney general shall review the denial and issue . . . a written opinion to the agency concerned, stating whether the agency acted consistent with provisions of KRS 61.870 to 61.884 . A copy of the opinion shall also be sent by the attorney general to the person who requested the record in question. . . .
(Emphasis added.)
KRS 61.880(1) provides in part as follows:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
It is the opinion of the Attorney General that your response was wholly consistent with the provisions of KRS 61.880(1). The only issue remaining is whether your denial letter properly relied upon the statutory exemptions set forth in that response. For the reasons stated below, this Office concludes that this issue is moot and respectfully declines to render an opinion on this issue.
This Office has repeatedly held that if records requested do not exist or are not presently in the possession of the public agency, the open record request is moot. OAG 90-131; OAG 88-44; OAG 87-36; OAG 86-80; OAG 86-35; OAG 86-15; OAG 85-29; OAG 83-111. Similarly, this Office now opines that if access to the public records for which inspection or copying is sought is initially denied and then subsequently granted, the issue of the propriety of the initial denial becomes moot.
In the instant appeal, the public agency initially denied inspection of certain public records, but subsequently reversed its position and made the public records open for inspection and copying by the requester. Under these circumstances, it is the opinion of this Office that the issue of whether the initial agency response properly relied upon particular exemptions in denying inspection, is mooted by the subsequent release of the public records.
Finally, it is noted that the law is well settled on whether written complaints which spawn an investigation must be released after the agency takes final action or elects to take no further action. Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983); City of Louisville v. Courier-Journal, Ky.App., 637 S.W.2d 658 (1982). This Office has rendered multiple opinions on this issue. See OAG 91-102; OAG 91-91; OAG 91-90; OAG 91-81; OAG 91-62; OAG 91-49; OAG 91-33; OAG 90-58; OAG 89-74; OAG 89-13; OAG 88-43; OAG 88-25; OAG 87-64; OAG 87-32; OAG 86-46; OAG 85-136; OAG 85-126; OAG 84-315; OAG 83-41; OAG 81-291; OAG 81-127.
For these reasons, this Office declines to render an opinion on whether the initial denial of inspection was consistent with open records law with respect to reliance on particular statutory exemptions. Ms. Ninie Glasscock may institute proceedings within thirty days for injunctive or declaratory relief in the circuit court of the district where the public records are maintained pursuant to KRS 61.880(5).