Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police properly relied on KRS 61.878(1)(i) and (j) in denying attorney Alison C. Wells' September 5, 2006, request for copies of the August 30, 2006, interviews conducted by KSP Internal Affairs with her client, Terri Brewer, and her client's brother, Billy Moore, concerning a complaint filed by Ms. Brewer. For the reasons that follow, we affirm KSP's denial of Ms. Wells' request.
By letter dated September 13, 2006, KSP notified Ms. Wells that "[a]ny documentation pertaining to this internal investigation, with the exception of the initial complaint and the final disposition of the complaint, are [sic] exempt from disclosure pursuant to KRS 61.878(1)(i) and (j), as it is internal data that is preliminary in nature and is not indicative of final action by the agency." Shortly thereafter, Ms. Wells initiated this appeal on behalf of her client, asserting that Ms. Brewer "certainly is entitled to a copy of her audiotape interview . . . [and that] of her brother."
In supplemental correspondence directed to this office following commencement of Ms. Wells' appeal, Lt. Scott Miller responded to this office's KRS 61.880(2)(c) inquiries and elaborated on KSP's position. He explained that as of October 5, 2006, the date on which he responded, "[t]he preliminary investigation into Terri Brewer's complaint ha[d] not been completed . . . [and] the investigation continue[d]." 1 It was his position that "the preliminary investigation is not releasable under the Open Records Act. " Continuing, Lt. Miller observed:
The open records act does not make special provisions for disclosure of information pertaining to an individual requestor with the exception of public employees/applicants under KRS 61.878(3) . If Ms. Brewer is entitled to this information then the information would be releasable to the public as well. Therefore, we make no distinction with Ms. Brewer requesting her own interview and anyone else of the general public.
Because the internal affairs investigation, of which the disputed documents were a part, had not been concluded at the time of Ms. Wells' request, we affirm KSP's denial of that request on the basis of KRS 61.878(1)(i) and (j). 2
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. 3
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).
Because the investigation into Ms. Brewer's complaint had not been concluded at the time of her attorney's request, and no final action in the matter had been taken, the protection from disclosure afforded by KRS 61.878(1)(i) and (j) extended to the audiotape interview, identified in that request. The courts' holdings in the referenced opinions turned on the fact that final action had been taken. 4 This fact, standing alone, distinguishes those opinions from the instant appeal. Until such time as the investigation was concluded, and final action taken, including the decision to take no action, all records associated with the investigation could properly be withheld under authority of KRS 61.878(1)(i) and (j). We find no error in KSP's denial of Ms. Wells' request.
Our conclusion is not altered by the fact that the requester is an attorney representing the individual who is the subject, or the sister of the subject, of the audiotape interviews sought. Although KRS 61.884 provides that "[a]ny person shall have access to any public record relating to him or in which he is mentioned by name . . . subject to the provisions of KRS 61.878," this office has recognized that the provision only "invests an individual with the right to inspect and copy any otherwise nonexempt public record that relates to him or in which he is mentioned by name." 02-ORD-118, p. 2. 5 Thus, "the statutory exceptions [codified at KRS 61.878(1)(a) through (n)] swallow the rule that a person must be allowed access to records that relate to him." Id.; OAG 85-88; 00-ORD-190. Accordingly, Ms. Wells and her client stand in the same shoes as any other requester under the Open Records Act, and are only entitled to inspect nonexempt records relating to Ms. Brewer's complaint after this matter has been finally resolved.
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.
Footnotes
Footnotes
1 We assess the propriety of the agency's denial on the date the denial was issued and not in light of subsequent events. Although Lt. Miller indicated that Internal Affairs anticipated concluding the investigation within two weeks of his October 5 response, the investigation was ongoing at the time of Ms. Wells' request.
2 In response to our question concerning whether the investigation had been concluded, and whether the ultimatedecisionmaker adopted the investigative report as part of his final action, Lt. Miller indicated that "[a]s an explicit matter of policy, the ultimate decisionmaker does not adopt the investigative report as part of his final action. " In support, he cited General Order AM-E-2 which states:
The Internal Affairs Investigation shall be considered preliminary. Therefore, except that which is intended to give notice of final action and has been reviewed and signed by the Commissioner or his designee, all preliminary drafts, notes, recommendations, memoranda and correspondence, that pertain to the Investigation shall be exempted from inspection under the state Open Records Law [KRS 61.878(i) and (j)].
The referenced general order has no bearing on the resolution of the instant appeal. We therefore leave for another day the question of whether KSP can limit the public's right of access through the issuance of a general order.
3 Accord, Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times, Ky. App., 663 S.W.2d 953, 957 (1983) (holding that "once . . . notes or recommendations are adopted by the [agency] as part of its action, the preliminary characterization is lost, as is the exempt status" and that "documents defined in Subsections [(i)] and [(j)] which became part of the records adopted by the [agency] as the basis of its final action, become releasable as public records"); and University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373, 378 (holding 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").
4 In Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001), the Kentucky Court of Appeals determined that the agency's decision to take no action, as a result of an errant employee's resignation, constituted final agency action. Additionally, the court held that complaints of misconduct involving police officers, and "the underlying basis for a disciplinary charge," are "matters of unique public interest," and that their disclosure does not constitute a clearly unwarranted invasion of the officer's personal privacy even if the allegations are of a personal nature.
5 Compare KRS 61.878(3), permitting a public agency employee to inspect and copy "any record including preliminary and other supporting documentation that relates to him," the exceptions to the Open Records Act notwithstanding.