Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Owensboro violated the Open Records Act in denying Evansville Courier & Press Western Kentucky bureau chief John Lucas' December 15, 2000, request "to inspect and/or copy the report of the Owensboro Police Department's investigation of the November 16, 2000, shooting of Tyrone Clayton Jr. by [Owensboro Police Department] Officer Lorhn Frazier." For the reasons that follow, we affirm the city's denial of Mr. Lucas' request.
On behalf of the City of Owensboro, City Attorney David C. Fowler denied Mr. Lucas' request on the basis of KRS 61.878(1)(i) and (j). He explained:
No final administrative action has been taken by the City with regard to the information obtained during the investigation. It includes preliminary drafts, notes, correspondence with individuals, preliminary recommendations and memorandum in which opinions are expressed and is exempt from public disclosure under KRS 61.878(1)(i) and/or (j). Records detailing OPD internal affairs investigations are exempt from public inspection even after final action is taken and lose their exempt status only if they are incorporated into the final agency action. City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). The investigation also includes information of a personal nature, the public disclosure of which would constitute a clearly unwarranted invasion of the personal privacy of numerous employees and private individuals and is therefore exempt from inspection under KRS 61.878(1)(a).
In addition, Mr. Fowler relied on KRS 61.878(1)(i), incorporating KRS 61.810(1)(f) and KRS 15.520(1)(f) into the Open Records Act, arguing that "[c]harges and ongoing investigations in pending or potential disciplinary matters are not subject to disclosure." In closing, Mr. Fowler defended the city's decision to submit the internal investigative records to the Commonwealth Attorney and Daviess County coroner, noting that KRS 61.878(5) encourages agency sharing of otherwise exempt public records with other public agencies when the sharing of records serves "a legitimate governmental need or is necessary in the performance of a legitimate government function. "
On appeal, Mr. Lucas asserts that OPD's investigation "is finished. It is complete. It is final. The OPD did not file any charges as a result of its investigation." In support, he cites an article written by Owensboro Police Chief Allen Dixon, and published in the December 20, 2000, Messenger-Inquirer, in which Chief Dixon refers to the "the completed investigation report that was turned over to the Commonwealth's Attorney and coroner. " Because "many Owensboro residents have expressed doubt about the ability of the OPD to investigate adequately whether the shooting of Clayton by Frazier was justified," Mr. Lucas observes, "it is in the public interest to make the details of the report available for inspection. "
In a supplemental response directed to this office following commencement of Mr. Lucas' appeal, Mr. Fowler elaborated on the city's position. He indicated that no final administrative action has been taken as a result of the completed investigation, explaining:
To date, no charges have been formally brought against any member of the Police Department as a result of the incident in question. The internal investigation is part of the pre-decisional process conducted under the direction and supervision of the Chief of Police. Under KRS 95.450, only the Owensboro Board of Commissioners is vested with authority to take final disciplinary action against a police officer, which has not occurred. Any administrative decision with respect to potential disciplinary action against Officer Frazier or any other member of the Police Department has been delayed pending the outcome of the present criminal investigation by the Commonwealth's Attorney, Jay Wethington.
Mr. Fowler advanced an additional argument in support of the city's denial of Mr. Lucas' request. Citing KRS 61.878(1)(h), authorizing Commonwealth's Attorneys to permanently deny access to records compiled in criminal investigations or criminal litigation, he maintained that "[t]his exemption would be rendered meaningless if the city was required to make public internal investigative information submitted to the Commonwealth's Attorney for criminal investigation. "
On March 2, 2001, Mr. Fowler responded to a series of questions posed by this office under authority of KRS 61.880(2)(c). In response to our question concerning the status of OPD's investigation, Mr. Fowler advised:
The internal investigation conducted by the Professional Standards Division of the Owensboro Police Department has been completed and forwarded to the Chief of Police, the Commonwealth's Attorney and the Daviess County Coroner as authorized by KRS 61.878(5). To the best of our knowledge, this matter is currently under investigation by the Commonwealth's Attorney's office and will be presented to a Daviess County Grand Jury in March, 2001. No charges have been filed at this time against any members of the Owensboro Police Department, and no decision will be made regarding possible disciplinary action until such time as the investigation and disposition of criminal charges, if any, have been concluded. Accordingly, the statements, drafts, notes, correspondence and recommendations set forth in the Police Department's internal investigation are still preliminary in nature and are exempt from public disclosure under KRS 61.878(i) and/or (j).
Per our request, Mr. Fowler explained the process for investigating police shooting incidents from commencement to conclusion:
It is standard procedure for the Professional Standards Division of the Owensboro Police Department to investigate any incident in which a Police Officer uses deadly force against another person. Under normal circumstances, the results of the investigation are forwarded through the chain of command to the Chief of Police who, in turn, submits his findings and recommendations to the City Manager. Disciplinary action, if any, may only be taken by the legislative body (the Owensboro Board of Commissioners) in the manner prescribed in KRS 95.450. However, if there are allegations or evidence of criminal conduct, the matter is referred to the County or Commonwealth Attorney for further investigation and no decision regarding administrative disciplinary action is made until the investigation is completed and criminal charges, if any, are disposed of.
In answer to our question concerning the application of KRS 15.520(1)(f) to the requested records, Mr. Fowler stated that the protection afforded by this provision, which prohibits public discussion of charges of violation of departmental rules or regulations against police officers until final disposition of the charges, "would be rendered nugatory if the city were required to make public internal investigative information" prematurely.
We affirm the City of Owensboro's denial of Mr. Lucas' request. In our view, KRS 61.878(1)(i) and (j), as interpreted in City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982) is the controlling authority. That opinion firmly establishes that investigative files of a police department's internal affairs unit "are exempt from public inspection as preliminary under KRS 61.878(1)[(i) and (j)]" prior to final administrative action, and after that action unless those files are adopted as part of the final administrative action. Because we believe these authorities are controlling, we do not address the remaining arguments advanced by the City of Owensboro.
The courts and this office have devoted considerable time and energy to interpreting KRS 61.878(1)(i) and (j). These provisions 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.
Applying these exceptions to an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Kentucky Court of Appeals observed:
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.
This holding, however, is limited to Internal Affairs' involvement. We do not find that the complaints per se are exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. We acknowledge that it is possible that these complaints could be afforded continuing exemption under subsection [(i)] relating to preliminary correspondence with private individuals; however, that determination would be made upon consideration of the facts on a case-by-case basis and would be dealt with under KRS 61.878[(4)]: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)[(i)]. 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.
City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658, 659, 660 (1982) (emphasis added).
This position was reaffirmed one year later in a case involving public access to complaints against physicians licensed by the state licensure board. In Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1983), the Court of Appeals determined that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once final action is taken by the board. With respect to letters, correspondence, and reports compiled by the board, the Court commented:
If these documents were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status. Id. at 659. The trial court found that:
Board of Medical Licensure at 956, 957 (emphasis added).
Nine years would pass before the courts revisited this issue in a published opinion. In University of Kentucky v. Courier-Journal & Louisville Times Company, Ky., 830 S.W.2d 373, 378 (1992), the Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." (Emphasis added.) In the intervening years, the Attorney General applied the principle in various contexts. See, e.g., OAG 83-405 (final orders of Unemployment Insurance commission open to public inspection as evidence of final agency action) ; OAG 84-98 (decision of fiscal court on industrial revenue bond issue open to public inspection if it represents final action) ; OAG 89-69 (legal memorandum adopted as part of Natural Resources and Environmental Protection Cabinet's final action is open for inspection) ; and OAG 88-25 (complaint and final action relating to investigation of school system employee misconduct must be released, as well as investigative materials incorporated therein). These opinions were premised on the notion that:
93-ORD-103, p. 11.
With specific reference to internal affairs investigative records, the Attorney General has held that the Kentucky State Police improperly withheld such records when the evidence presented confirmed that the final decision maker, KSP's Commissioner, "adopted the findings and recommendations of the investigative officer by affixing his signature to the report." 97-ORD-168, p. 7. Those investigative materials that were once preliminary in nature lost their exempt status "because the Commissioner, signal[ed] his concurrence with the investigator's findings and recommendations on the report . . . [which was] physically incorporated into his decision relative to the inquiry . . . ." Id. The Commissioner, we concluded, "adopted the report, in its entirety, when he signed off on the document and affirmed its conclusions." Id. In sum, this office held:
[A]n internal affairs report cannot be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports. The purpose for which KRS 61.878(1)(i) and (j) were enacted, namely to protect the integrity of the agency's internal decision making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken.
97-ORD-168, p. 7.
Conversely, in 98-ORD-123 we affirmed an agency's denial of a request for an internal affairs report on the basis of KRS 61.878(1)(i) and (j) because the personnel order reflecting final disciplinary action, which the agency released, did not incorporate, physically or by reference, the findings and recommendations of the investigating officer. At page 12 of that decision, we observed:
Although [the personnel order] contains scant information relative to the specific conduct giving rise to the disciplinary action, it is not by this standard that we assess the propriety of the agency's invocation of KRS 61.878(1)(i) and (j). For purposes of absolute clarity, we reject . . . [the] argument that 97-ORD-168 stands for the principle that "by failing to make findings of fact in a Notice of Final Action, the police have, in effect, adopted the preliminary investigation in the Internal Affairs report." This was neither the express nor implied holding in that decision. The Attorney General is not at liberty to so radically depart from the clearly expressed interpretation of the Open Records Act as set forth in City of Louisville and its progeny.
98-ORD-123, p. 12.
Factually, the appeal before us is distinguishable from both of these decisions insofar as no administrative action has been taken in this matter. Simply stated, "although at this point the work of Internal Affairs [, here, the Professional Standards Board] is final as to its own role," City of Louisville at 639, the work of Chief of Police, in submitting his findings and recommendations to the City Manager, the work of the City Manager in determining whether charges should be preferred, and the work of the Owensboro Board of Commissioners, in determining final disciplinary action per KRS 95.450(6), is yet to be done. Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
The fact that these exempt public records have been transmitted to the Commonwealth's Attorney and coroner in the furtherance of their respective duties does not alter our conclusion. KRS 61.878(5) encourages agency exchange of otherwise exempt public records "when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function. " Under these circumstances, the agency may continue to rely on the applicable exemption in responding to open records requests. The City of Owensboro's disposition of Mr. Lucas' request was therefore consistent, in all material respects, with the requirements of the Open Records Act.
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 proceedings.