Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Montgomery County Schools properly denied Steven Wilson's November 29, 1999 open records request for:
copies of any and all documentation collected and/or generated by the school system that was forwarded to commonwealth's attorney George Moore, regarding former transportation department supervisor Gary Smith.
By letter dated November 30, 1999, Daniel Freeman, Superintendent, denied Mr. Wilson's request. He advised that the information was confidential under authority of KRS 61.878(1) (i), it being preliminary information such as, "? drafts, notes, and correspondence with private individuals...."
On December 2, 1999, Mr. Wilson asked the Superintendent to reconsider his denial on the belief that KRS 61.878(1)(i) did not qualify as an exemption under the facts of the case.
By letter dated December 3, 1999, William H. Fogle, counsel for the school system elaborated on the Superintendent's initial response and again denied the request, stating:
The correspondence in question was preliminary in nature and did not give notice of final action by or on behalf of the Montgomery County Board of Education. Thus, pursuant to KRS 61.878(1)(i) and (j), this data is exempt. See OAG 83-358, OAG 85-90, OAG 86-26, OAG 87-28, and OAG 91-102.
In his letter of appeal, Mr. Wilson indicated that the transportation supervisor had resigned his position after the school system had discovered "irregularities in the transportation department. "
After receipt of Notification to Agency of Receipt of Open Records Appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Fogle provided this office with a response to the issues raised in the appeal. In his response, Mr. Fogle elaborated on the agency's denials, stating in pertinent part:
Further, with regard to the newspaper's requests to inspect correspondence between the Superintendent and Commonwealth's Attorney, although not cited in our initial response, the Kentucky Court of Appeal's decision in City of Louisville v. Courier Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982), is cited in support of the Board's position on this issue.
To facilitate our review of this appeal, we requested that the Department provide us with a copy of the Superintendent's letter to the Commonwealth Attorney for an in camera review. The contents were not disclosed to other parties, and the letter has since been destroyed. KRS 61.880(2)(c); 40 KAR 1:030 Section 3. Although we cannot reveal the contents of the letter, we can generally describe it as a letter from the Superintendent in which he provides information about actions of the Transportation Supervisor to the Commonwealth's Attorney for possible investigation and enforcement action.
For the reasons that follow, we conclude the school system did not violate the Open Records Act in denying the request for a copy of the Superintendent's letter.
In support of its denial, the school system cited KRS 61.878(1)(i) and (j), which authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In
City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982), the Court of Appeals held that these sections of the Open Records Act [now recodified as KRS 61.878(1)(i) and (j)], protect police internal affairs from public disclosure. In reaching this result, the Court of Appeals stated:
It is the opinion of this Court that subsections [i] and [j] 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 summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)[i] and [j]. This does not extend to 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.
Mr. Fogle has advised this office that the Commonwealth's Attorney and/or the Kentucky State Police are still in the process of investigating the matter. Under these circumstances, we conclude that the letter constitutes a document or complaint, which initiated a law enforcement investigation, and that the school system properly denied access to the letter as a preliminary document under KRS 61.878(1)(i) and (j). Once the investigation and legal action has been completed or a decision has been made to take no legal action, the letter as an initiating document which launched the investigation would be available for inspection, unless otherwise exempt from disclosure under an applicable provision of the Open Records Act.
Although not cited by the school system, KRS 61.878(1)(h) might also authorize nondisclosure of the document while the investigation and potential prosecution is ongoing. That statute provides:
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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. 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.
Because the Commonwealth's Attorney and the Kentucky State Police's investigations are still open, the Superintendent's letter is also exempt from disclosure under KRS 61.878(1)(h) as a record of a law enforcement agency compiled in the process of investigating a statutory or regulatory violation. The premature disclosure of the letter could arguably compromise the investigation and subsequent enforcement action. 94-ORD-7, 93-ORD-104, OAG 90-67 and OAG 83-39.
We further conclude that the exemptions were not waived by the fact that the disputed document constituted correspondence with another public agency. KRS 61.878(5) provides:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate governmental function.
This statute authorizes the exchange of otherwise exempt records between public agencies when the exchange is serving a legitimate governmental function. 96-ORD-277. Accordingly, the letter from the Superintendent to the Commonwealth's Attorney concerning a possible investigation or enforcement action need not be made available for inspection while the action is ongoing.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.