Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Human Rights Commission violated the Open Records Act in partially denying Lexington Fair Housing Council Executive Director Arthur T. Crosby's February 6, 2008, request for "all documentation regarding the investigation of . . . [Housing and Urban Development No. 04-07-0314-8 and HRC No. 12-06-2349], including documents provided by Complainant, Respondent, Respondent's witnesses, or any third party witnesses." For the reasons that follow we find that because HUD has reactivated the investigation into the complaint, the Commission properly denied portions of Mr. Crosby's request on the basis of KRS 61.878(1)(i) and (j). 1
In its February 8, 2008, response, the Commission's Executive Director, William D. Wharton, partially granted the Council's request but identified forty-three records that Mr. Wharton characterized as exempt on the basis of KRS 61.878(1)(a), (h), (i), (j), (k), KRS 344.250(6), 24 CFR 15.3, and 24 CFR 103.330. Mr. Wharton described the records withheld in general terms but did not indicate how these exemptions applied to the records.
Shortly thereafter, Mr. Crosby initiated this appeal on behalf of the Council and its client, the complainant in the referenced case. It was his position that KRS 344.615(2), requiring the Commission to "make available to the aggrieved person and the respondent, at any time, upon request following completion of the commission's investigation of a discriminatory housing practice, information derived from the investigation and any final investigative report relating to that investigation," compels full disclosure of the requested records to the Council's client.
In supplemental correspondence directed to this office following commencement of the Council's appeal, the Commission reasserted that "[a]ll records that were claimed exempt . . . fall within [KRS 61.878(1)(h) and KRS 61.878(1)(i)]," noting that the records "included impressions, notes, and preliminary drafts." The Commission also questioned the Council's "broad" interpretation of KRS 344.615(2), asserting that the latter provision only requires disclosure of the final investigative report and final decision, copies of which were provided to the Council.
Prompted by the Commission's admission that a final decision had been rendered, this office requested additional information from the Commission under authority of KRS 61.880(2)(c). 2 In its April 4, 2008, response, the Commission advised:
[T]he Commission has been notified by [HUD] that the investigation of the [referenced] complaint . . . has reopened. Since the Commission is statutorily obligated to assist HUD with the investigation of the complaint, there is no final decision.
Pursuant to KRS 61.878(1)(h), (i), and (j) [sic] any information that has not already been released is not [sic] part of the reinvestigation of the complaint.
In support, the Commission attached Mr. Wharton's affidavit in which he averred that the referenced complaint was "dual-filed" with the Commission and HUD; that under the Commission's cooperative agreement, HUD may elect to reactivate the complaint and investigation "for various reasons including nonacceptance of the Commission's recommended decision"; that in March 2008, HUD notified the Commission that the case had been reactivated; that because HUD has reactivated the complaint, the Commission is obligated to assist HUD in the investigation; and that as of April 13, 2008, the Commission was still cooperating with HUD in its investigation. In light of these facts, we affirm the Commission's partial denial of the Council's request on the basis of KRS 61.878(1)(i) and (j).
Resolution of the issues presented in this appeal turns not on the application of KRS 344.615(2) to the records withheld insofar as HUD's reactivation of the complaint effectively negated the "completion of the commission's investigation," a precondition to disclosure of "information derived from the investigation" to the aggrieved person and respondent. 3 Instead, resolution of the issues on appeal turns on the application of KRS 61.878(1)(i) and (j) to those records. Those exceptions authorize nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency and
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
"From these exclusions," Kentucky's courts have opined, "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." 4 Courier-Journal v. Jones, 895 S.W.2d 6, 8 (Ky. App. 1995). In a line of opinions dating from the early eighties, Kentucky's courts have recognized that investigative records, compiled as a result of a complaint, are shielded from disclosure by KRS 61.878(1)(i) and (j) as preliminary records unless those records are adopted as a part of the investigating agency's final action. City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992); Courier-Journal v. Jones, above; Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001).
In Kentucky State Board of Medical Licensure, above, the Kentucky Court of Appeals liberally quoted from the trial court's opinion:
[A]s an independent agency authorized to issue a binding decision, any investigation [the Board] would authorize by other agencies and passed on to it . . . would become public when adopted and made a part of its final action.
[T]hose documents defined in Subsections [(i) and (j)] 5 which became a part of the records adopted by the Board as the basis of its final action, become releasable as public records under Subsection [(h)] 6 unless exempted by other provisions of KRS 61.870 through KRS 61.884.
Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under Subsection [(i) and (j)] of the Act.
Kentucky State Board of Medical Licensure, above at 956, 957.
Applying this analysis to the investigative records at issue in this appeal, we find that those records, which consist of logs, plans, correspondence, legal research, chronologies, notes, and summaries, qualify for exclusion under KRS 61.878(1)(i) and (j) as investigative records passed on to HUD, an independent agency authorized to issue a binding decision, in its investigation and resolution of the reactivated complaint dual-filed by the Council's client. Unless adopted as part of HUD's final action, the records "shall remain excluded under Subsection (i) and (j) of the Act," Id. at 957, at least as to the public generally.
This office has not been apprised of any developments in this case since April 4, 2008, when the Commission notified us that HUD had reactivated the referenced complaint and investigation. In light of these facts, we need not address the application of KRS 344.615(2) to the disputed records or the Commission's argument that the Council interprets this provision too broadly. On the facts presented, we find that the Commission properly relied on KRS 61.878(1)(i) and (j) in denying the Council's request for records that are integral to HUD's reactivated investigation of the Council's client's complaint.
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.
Distributed to:
Arthur T. CrosbyWilliam D. WhartonEdward E. Dove
Footnotes
Footnotes
1 Because the issues presented in this appeal are resolved under KRS 61.878(1)(l) and (j), we do not address the Commission's reliance on KRS 61.878(1)(h) except to note that the exception authorized partial nondisclosure of the requested records only if HUD specifically asked that the records be withheld so as not to harm its ongoing investigation. See, e.g., OAG 90-116; 97-ORD-52; 06-ORD-185.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
Pursuant to this statute, the Attorney General posed five questions to the Commission to facilitate our review of the issue on appeal. In addition, we asked that the Commission furnish us with copies of the disputed records for in camera inspection. The Commission failed to respond to any of these questions or to provide us with copies of the disputed records.
3 Compare 07-ORD-233, holding that in light of KRS 344.615(1) the Commission improperly denied complainant access to "information derived from [its] investigation" following submission by complainant of an open records request for same at the conclusion of that investigation.
4 The General Assembly has also determined that these exclusions "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 legitimate government function." KRS 61.878(5). Notwithstanding the protected status of the requested records, the Commission may elect to share the records with the Council pursuant to this provision.
5 Formerly codified as KRS 61.878(1)(g) and (h).
6 Former codified as KRS 61.878(1)(f).