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 Daviess County Attorney properly relied on KRS 61.878(1)(i) and (j), and 00-ORD-98, in denying David Osborne's April 26, 2002 request for "a copy of a recent letter from the law offices of Wyatt, Tarrant and Combs firm in Louisville that was . . . sent to [the County Attorney's] office . . . concern[ing] inmates from the Daviess County Jail that are being left at Owensboro Mercy Health System unguarded." For the reasons that follow, we affirm the County Attorney's denial of Mr. Osborne's request. However, because the disputed record is in the nature of a complaint, we believe it will forfeit its preliminary character and be subject to public inspection once final action is taken on the issues raised under the reasoning set forth in City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982). That case holds that because whatever final actions are taken necessarily stem from the complaints that spawned them, they must be deemed incorporated as a part of those final actions.
In his April 16, 2002 denial, Daviess County Attorney Robert M. Kirtley advised Mr. Osborne:
I do not believe your open records request for the letter referred to above is available to you at this time under the provisions of KRS Chapter 61 for the following reasons:
The nature of the letter requested is preliminary in nature and from a private person as that term is used above.
On appeal, Mr. Osborne asserts that "the interest of public safety outweighs the reasons of refusal given by Mr. Kirtley.
Under authority of KRS 61.880(2)(c), this office subsequently requested a copy of the disputed record to facilitate our review. On May 6, 2002, Mr. Kirtley furnished us with a copy of the record, explaining in a cover letter:
Pursuant to [the disputed] letter, I met with Mr. Cusick and Jailer Taylor on April 9th. I have now received a draft of a Letter of Understanding from Mr. Cusick, but have been unable to review same as I have been in court.
In a May 15, 2002 conversation with the undersigned, Mr. Cusick confirmed that, as of that date, final action had been taken on this proposed Letter of Understanding.
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as by the Kentucky Supreme Court's holding in Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992), that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of that fact that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended." KRS 61.878(1)[(i) - (j)]. From these exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578 (1994); see also, Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Further, we recognize, as in Beckham, that "with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly," and not "to add or subtract from the legislative enactment or discover meaning not reasonably ascertainable from the language used." Beckham at 577, citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). Thus, no matter how compelling the public interest in disclosure of the disputed record may be in this particular case, that interest must yield to the statutory exemption authorizing nondisclosure of the record until the protection afforded by that exemption expires.
This office and the courts have consistently recognized that written complaints which spawn an investigation or inquiry may not be excluded from public inspection after final action is taken because the public is entitled to know if complaints have been made and how they were resolved. City of Louisville v. Courier-Journal and Louisville Times Company, above; Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1984); OAG 83-332; OAG 86-46; OAG 87-32; 97-ORD-173. Although they are preliminary documents within the meaning of KRS 61.878(1)(i) and (j) until final action is taken, they forfeit that protection when the matters complained of are resolved. On this issue, the Court of Appeals has opined:
Inasmuch as whatever final actions are taken necessarily stem from [the complaints that spawned the investigation or inquiry], they must be deemed incorporated as a part of those final determinations . . . The public upon request has a right to know what complaints have been made and the final action taken . . . thereupon.
City of Louisville at 659, 660.
Our review of Mr. Cusick's letter confirms that it is in the nature of a complaint to the Daviess County Jailer on behalf of his client, Owensboro Mercy Health System. Mr. Kirtley and Mr. Cusick indicate that the issues giving rise to the complaint are the subject of an ongoing inquiry. Accordingly, the letter is currently protected from disclosure by KRS 61.878(1)(i) and (j). As a result of the ongoing inquiry, Mr. Cusick has submitted a proposed Letter of Understanding which has yet to be finally acted upon by the Jailer. Once final action is taken by the Jailer, both the record reflecting the final action taken, whether it is Mr. Cusick's Letter of Understanding or some other document signifying resolution, and Mr. Cusick's original letter of complaint will be subject to inspection. Until this time, the record may properly be withheld. Accordingly, we find no error in Mr. Kirtley's disposition of Mr. Osborne's request.
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.
David W. Osborne5770 Hayden Bridge RoadOwensboro, KY 42301
Robert M. KirtleyDaviess County AttorneyP.O. Box 158Owensboro, KY 42302
Harold N. TaylorDaviess County Detention Center110 St. Elizabeth StreetOwensboro, KY 42301
Footnotes
Footnotes
1 While we do not question Mr. Kirtley's assertion that Owensboro Mercy Health System is not a contractor under a public contract and therefore subject to greater public scrutiny "as set out in 00-ORD-98," we do not accept the inference that records generated by or for OMHS that are directed to a public agency qualify for blanket exclusion from public inspection. It is the nature of the record that is controlling not the source from which it was derived.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -