Request By:
Ms. Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. J. W. Leonard, Special Investigator in Charge, Special Investigations Bureau, a private agency, has appealed to the Attorney General, pursuant to KRS 61.880(2), your partial denial of a series of requests to inspect certain documents in the custody of the Kentucky State Police. The requested records relate to Kentucky State Police Trooper, Bradley K. Pratt.
Although we have not examined Mr. Leonard's letters of request, we assume from your January 6, 1992, response that he originally asked for copies of all documents in the possession of the Kentucky State Police which relate to Trooper Pratt. You denied Mr. Leonard's request, relying on OAG 76-375, in which this Office opined "blanket requests for information on a subject without specifying certain documents need not be honored."
On January 9, 1992, you responded to Mr. Leonard's second request, in which he apparently identified specific documents which he wished to inspect. Although you released copies of disciplinary actions taken against Trooper Pratt, his employment application "with appropriate exclusions as outlined in KRS 61.878(1)(a)," and a list of his duty assignments, you invoked KRS 61.878(1)(a), (g), and (h), in support of your decision to withhold reports of background investigations conducted by KSP. You explained that the background investigations contain both personal information and preliminary opinions. In addition, you refused to release certain portions of Trooper Pratt's employment application and evaluation reports, again relying on KRS 61.878(1)(a), (g), and (h).
In response to Mr. Leonard's final records request in which he asked to inspect the missing pages from Trooper Pratt's employment application and all documentation pertaining to the reasons for his suspension, you advised that he had been provided with the entire application, and that only those portions that contain personal information had been deleted pursuant to KRS 61.878(1)(a). With respect to his request for documentation relating to Trooper Pratt's suspension, you stated:
You were supplied the final disposition of Internal Affairs investigations as required by law. There were no official letters of complaint.
We rely on OAG 83-366 in which the Attorney General opined that, 'Police internal affairs reports are exempt from public inspection as preliminary memoranda; only internal affairs reports which indicate final action taken and the underlying complaint are open to public inspection. '
In his letter of appeal to this Office, Mr. Leonard objects to your invocation of KRS 61.878(1)(a), (g), and (h), observing:
This office fails to see why KSP, OCR, would deny the . . . formal Requests for Information when such information was properly requested and is necessary to the conduct of our investigation unless the KSP is attempting to deny our requests in an attempt to cover up the past conduct of its officer. It is our opinion that the information requested by this agency has been illegally denied IAW applicable State and Federal statutes [sic].
He asks that we review "all requests made by [his] agency to the Kentucky State Police," to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly responded to Mr. Leonard's requests.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. The statute provides:
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 records 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.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your responses to Mr. Leonard's requests were procedurally consistent with the Open Records Act. Each response was issued within three days of receipt of his requests, and included a statement of the specific exception authorizing nondisclosure as well as a brief explanation of how these exceptions apply to the records withheld. As required by KRS 61.880(2), you immediately forwarded a copy of your written responses to this Office.
Turning to the substantive issues raised in this open records appeal, we find that your initial response to Mr. Leonard's request for copies of all documents in the possession of the Kentucky State Policy relating to Trooper Bradley Pratt was consistent with the Act. As you correctly note in your response, this Office has consistently recognized that "blanket requests for information on a subject without specifying certain documents need not be honored." OAG 76-375, at p. 3; OAG 83-386; OAG 89-61; OAG 89-88; OAG 91-58. Since some of the documents relating to Trooper Pratt might be exempt, a request for all such documents may be denied.
With respect to your letter of January 9, we find that you properly responded to Mr. Leonard's request for disciplinary reports, initial employment application, and lists of duty assignments by releasing those documents. Additionally, you properly advised him that your agency had received no complaints arising out of the conduct of Trooper Pratt, and that therefore no documents exists which satisfy that portion of his request. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112.
In a conversation with the undersigned on March 10, 1992, you explained that it is the policy of the Kentucky State Police to withhold reports of background investigations on job applicants conducted by KSP. These reports consist of opinions solicited from friends, relatives, acquaintances, and former employers, among others, and are aimed at insuring that he or she is a person of sound character. We concur with you in your view that these reports contain information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and are exempt from public inspection pursuant to KRS 61.878(1)(a). Although the public is entitled to inspect documents relating to an indivdual's public employment, such as name, position, work station and salary, that employee is entitled to privacy in his personal life and off-duty activities. OAG 76-717; OAG 87-37; OAG 87-84; OAG 91-48. The public's interest in accessing information about a public employee's personal history must therefore yield to that individual's privacy interests.
Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981).
Moreover, background investigation reports may be withheld under authority of KRS 61.878(1)(g) and (h). Those provisions exclude from mandatory disclosure, absent an order of a court of competent jurisdiction:
(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.
Inasmuch as these reports consisted almost entirely of correspondence and memoranda in which opinions are expressed, we believe they fall squarely within the parameters of those exceptions.
This logic has been extended to performance evaluations of public employees in a series of prior opinions issued by this Office. OAG 77-394; OAG 78-738; OAG 79-348; OAG 80-614; OAG 82-204; OAG 82-211; OAG 89-90; OAG 91-128; OAG 91-161. As we have noted, an evaluation is a matter of opinion and does not constitute any action of an agency. It therefore represents a preliminary recommendation or preliminary memorandum in which an opinion is expressed which may properly be withheld. KRS 61.878(1)(h). In addition, an evaluation may be withheld to protect the privacy of persons making such evaluations as well as the person being evaluated. At page 4 of OAG 86-15, we observed:
Memoranda of an evaluative nature have been consistently exempted from public inspection as a protection against an unwarranted invasion of personal privacy. The privacy rights protect both the subject of and the creator of the document of evaluation.
(Citations omitted.) We believe this opinion, as well as the opinions cited above, are dispostive of that portion of Mr. Leonard's appeal pertaining to performance evaluations.
Finally, it is our opinion that your response to Mr. Leonard's last request was substantively correct. You advised Mr. Leonard that you had provided him with all of the pages of Trooper Pratt's employment application, but had deleted specific personal information pursuant to KRS 61.878(1)(a) "which provides for exclusion because of the unwarranted invation [sic] of personal privacy. " KRS 61.878(4) states:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination.
As we have indicated, this Office recognizes that a public employee is entitled to privacy in his personal life, and that such information may properly be excluded from inspection. Thus, at pp. 8-9 of OAG 89-90, we opined:
Information upon an application or resume that is of a personal nature within the meaning of KRS 61.878(1)(a) may be separated and withheld in accordance with KRS 61.878(4). Such information would include, but not be limited to, information such as an employee's home address, social security number, medical information, etc. See, for example, OAG 79-275; OAG 87-37. A typical approach is to 'mask' or cover confidential information contained upon a record, make a copy of the 'masked' instrument, and furnish such copy to the requester.
Accordingly, your response to that portion of Mr. Leonard's request pertaining to Trooper Pratt's employment application was correct.
Similarly, your response to Mr. Leonard's request for "all documentation regarding the reasons for suspension of Trooper Pratt in Personnel Orders 113 and 338," was consistent with the Open Records Act. In support of your position, you cite OAG 83-366, at p. 2, in which this Office held:
[P]olice internal affairs reports are exempt from public inspection as preliminary memoranda. (Citations omitted.) Only internal affiars reports which indicate the final action taken and the underlying complaint are open to public inspection. (Citation omitted.)
This opinion echoes the rule announced in
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659 (1982), wherein the Court of Appeals held:
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.
Although that opinion also mandates the release of any complaints which spawn an investigation, you indicate that no such complaints were filed against Trooper Pratt. It therefore appears that you complied with the provisions of the above captioned case in that you made available for inspection the documents evidencing KSP's final action relative to the disciplinary action against him. See also , OAG 87-32; OAG 87-64; OAG 88-25. Your response was therefore proper.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. J. W. Leonard. Mr. Leonard may challenge it by initiating an action for injunctive or declaratory relief in the appropriate circuit court pursuant to KRS 61.880(5).