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 City of Oak Grove violated the Open Records Act in denying Eagle Post editor Sarah Hogsed's March 2, 2010, request for access to:
. all records of reprimands or disciplinary action taken against Sgt. Vincent Brown, complaints related to Brown, and any documentation related to a change of position for Brown of the Oak Grove Police Department; and
. all records of reprimand or disciplinary action taken against Officer James Layne, complaints related to Layne, and any documentation related to a change of position for Layne of the Oak Grove Police Department.
We find that the city improperly withheld existing reprimands and disciplinary records, complaints, and position change documents on which final action has been taken or a decision made to take no action. Those complaints that relate to ongoing investigations into the conduct of these officers may, however, properly be withheld on the basis of KRS 61.878(1)(h) if the complaints allege that the officers committed statutory or regulatory violations. If the complaints do not allege statutory or regulatory violations, records relating to ongoing investigations may still be withheld pursuant to KRS 61.878(1)(i) and (j), as interpreted in
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1983) and 01-ORD-83 until final action is taken or the decision is made to take no action.
The city initially denied Ms. Hogsed's request "for all records of reprimand or disciplinary action taken against two Oak Grove Police Officers." Although the city did not identify the specific exception upon which it relied in denying the request, City Clerk Evelyn McDaniel paraphrased, in part, the first sentence of KRS 61.878(1)(h). On appeal, Ms. Hogsed challenged the city's "blanket refusal," asserting that "not every record would be part of the current investigation." She noted that the city offered "no explanation . . . as to why [complaints and change of position] records were excepted from public inspection." In supplemental correspondence directed to this office, the city responded:
[T]he complaints against these officers, if any, would be the subject of an investigation, and therefore, are expressly exempted by KRS § 61.878. Further, it is the City's position that KRS § 15.520, which precludes the City from making any public statement regarding a police officer who is facing disciplinary action, would also preclude the city from providing any information regarding a pending claim against a police officer. As for the balance of documents related to the personnel records of these two officers, please be advised that no such documents exist.
This response lends itself to a variety of interpretations. Given this ambiguity, we cannot affirm the city's denial of Ms. Hogsed's request.
We can infer from the city's response that complaints may be pending against these officers, and we understand the city's reluctance to so affirm based on the language of KRS 15.520(1)(f). That statute provides:
Where a police officer has been charged with a violation of departmental rules or regulations, no public statement shall be made concerning the alleged violation by any person or persons of the local unit of government or the police officer so charged, until final disposition of the charge.
Although this provision does not expressly address nondisclosure of records relating to those charges, KRS 61.878(1)(i) and (j) have long been interpreted to authorize nondisclosure of the complaint or other initiating document in which charges are brought, and records compiled in the investigation of those charges, until final action is taken on those charges or a decision to take no action is made.
Palmer v. Driggers, 60 SW 3d 591 (Ky. App. 2001). Thus, in City of Louisville, above at 659, the Kentucky Court of Appeals recognized:
[S]ubsections [(i) and (j)] 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.
The rule of secrecy that applies to statements by local officials concerning pending charges against police officers coincidentally corresponds to the protection of documentation relating to those charges until the matter is concluded by final action or a decision to take no action. The City of Oak Grove's implied denial of this portion of Ms. Hogsed's request did not, therefore, violate the Open Records Act.
Having so concluded, we note that the exception upon which the city relied, KRS 61.878(1)(h), may properly be invoked to deny access to records relating to alleged police misconduct only if the officer is charged with violation of a statute enacted, or a regulation promulgated, by the General Assembly. KRS 61.878(1)(h) thus authorizes nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudications that were compiled in the process of detecting or investigating statutory or regulatory violations . . . .
Our review of the Kentucky Revised Statutes and the Kentucky Administrative Regulations discloses no legislatively enacted police code of conduct. Even if a local code of conduct is adopted by the city as an ordinance, that ordinance does not constitute a statute or regulation within the meaning of KRS 61.878(1)(h). Given the mandate of KRS 15.520(1)(f), and the city's silence in this matter, it is unclear what charges are pending against Officers Brown and Layne, but KRS 61.878(1)(h) does not prohibit access to the records relating to those charges unless they involve statutory or regulatory violations. Conversely, KRS 61.878(1)(i) and (j) authorize nondisclosure of "preliminary drafts, notes, [and] correspondence with private individuals . . ." and "preliminary recommendations and preliminary memoranda, in which opinions are expressed or policies formulated or recommended." As noted, these provisions have been construed to authorize nondisclosure of pending complaints and investigative records until final action is taken or a decision is made to take no action. Although the city's reliance on KRS 61.878(1)(h) may have been misplaced, "the [city's] error cannot be remedied by committing another and thus compounding mistakes" through required disclosure of statutorily protected records.
Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App. 1996). Unless Officers Brown and Layne are charged with violation of statute or regulation enacted or promulgated by the General Assembly, KRS 61.878(1)(h) offers no protection to records relating to pending complaints against them. But because KRS 61.878(1)(i) and (j) offer protection until final action is taken, or the decision to take no action is made, we affirm the city's denial of this portion of Ms. Hogsed's request.
With reference to Ms. Hogsed's request for reprimands, disciplinary actions and position change records relating to Officers Brown and Layne, the city advised, "As for the balance of documents related to the personnel records of these two officers, . . . no such documents exist." Again, this response lends itself to a variety of interpretations. Unless the correct interpretation is that neither Officer Layne nor Officer Brown have ever been disciplined or reprimanded, and that both have remained in the same position since they were first employed by the Oak Grove Police Department, the city's duties under the Open Records Act have not been discharged.
Pursuant to KRS 61.872, Ms. Hogsed is entitled to inspect, and obtain copies of, any nonexempt records in Officer Brown's and Officer Layne's personnel files that are responsive to her request. If either officer has been the subject of a complaint that has been resolved by the issuance of a reprimand, the imposition of disciplinary action, or the decision to take no action, Ms. Hogsed must be afforded access to the complaint(s) or other initiating document(s), the written record(s) documenting the reprimand or disciplinary action, and investigative records adopted as part of the final action or decision to take no action. If either officer has changed position since joining the Oak Grove Police Department, Ms. Hogsed must be afforded access to records documenting these position changes. No statutory basis exists for denying her request for these records.
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.
Sarah HogsedEvelyn McDanielJason E. Holland