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 Kentucky State Reformatory (KSR) violated the Open Records Act in denying Jesse J. Varner's open records request for copies of:
. . . all records of the Kentucky State Reformatory's Internal Affairs investigation of a conflict between C/O Joe Barnes and I.
William C. Seabold, Warden, KSR, denied Mr. Varner's request, stating in relevant part:
This request is being denied per KRS 61.878(1)(i) and (j). Investigative reports are exempt under KRS 61.878(1)(i) and (j). The Office of the Attorney General has consistently held that preliminary interoffice and intraoffice memoranda including investigative reports that do not represent the agency's final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). 94-ORD-135; 98-ORD-106; 99-ORD-55. As no final action has been taken against Correctional Officer Joe Barnes, the investigative file or report remains preliminary and is exempt from disclosure.
By letter dated October 1, 2001, Brian A. Logan, Staff Attorney, Department of Corrections, reiterated the preliminary nature of the requested records and advised that no final action had been taken against the correctional officer in question and, therefore, the investigative file remained preliminary and exempt from disclosure.
We are asked to determine whether the denial of Mr. Varner's request violated the Open Records Act. For the reasons that follow, we conclude it did not. KRS 61.878(1)(i) and (j) authorize 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.
This office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agency's final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). 98-ORD-106; 96-ORD-134.
In 94-ORD-134, this office stated:
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
Applying KRS 61.878(1)(i) and (j) to an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the
Kentucky Court of Appeals, in City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982), 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.
. . .
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.
Since no final action has been taken on the KSR's internal investigation, the requested investigative records could properly be withheld under KRS 61.878(1)(i) and (j). Accordingly, we conclude the KSR did not violate the Open Records Act in denying Mr. Varner's request. Once final action has been taken, the final report and any documents adopted as part of the final agency action, would be available for Mr. Varner's inspection, unless they are exempt from disclosure under another applicable provision 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 proceeding.
Jesse J. Varner, # 127592Kentucky State Reformatory3001 West Highway 146LaGrange, KY 40032
William C. SeaboldWardenKentucky State Reformatory3001 West Highway 146LaGrange, KY 40032
Brian A. LoganDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400