Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lexington-Fayette Urban County Government Division of Community Corrections violated the Open Records Act in its response to Dori Zirbes' January 14, 2010, request for:
All memos, video and investigation of incidents on 12/31/09 with Marlena Gower, Maj. T. R. Gibbs, Capt. D. Kelly, Capt. Simpson, Sgt. Jacob Crawford, Sgt. John Taylor re: 2 incidents on 12/31/09 with inmate Marlena Gower, Cpl. A. Anthony, Cpl. C. Trotter, Ofcr. Walker, Ofcr. Spencer, Cpt. M. Kelly, Sgt. John Taylor, Cpl. M. Bennett, Ofcr. J. Murray[;] incidents occurred in units EE and E.
We find that because Ms. Zirbes' request was "adequate for a reasonable person to ascertain the nature and scope of [the] open records request," 1 the Division of Community Corrections violated the Open Records Act by improperly withholding responsive memos based on its narrow interpretation of the request. Further, we find that the memos relating to these incidents were adopted as part of the final action taken by the Division of Community Corrections in its disposition of the matter and thereafter forfeited their preliminary characterization.
On January 22, 2010, the Division of Community Corrections responded to Ms. Zirbes' request, through Assistant Director of Administration and Custodian of Records, James J. Kammer, by releasing eighteen records to her. All of these records were captioned "Inmate Management Information System Incident Report." Shortly thereafter, Ms. Zirbes initiated this appeal. She noted that her open records request "included 'all memos' from an incident that occurred on 12/31/09 with inmate Marlena Gower," but protested that she received none.
In supplemental correspondence directed to this office, the Division of Community Corrections advised:
While memos exist, they are not responsive to Ms. Zirbes open records request and if they are, they would be exempt pursuant to City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982) as preliminary by KRS 61.878(1)(i) and (j). As an employee of Community Corrections, Ms. Zirbes should be aware of the difference between documents regarding inmate incidents and documents regarding employee discipline. . . .
In this appeal, Ms. Zirbes requested only records regarding inmate incidents and not employee discipline. The documents provided to her by Mr. Kammer were responsive to her request for reports regarding an inmate incident. The memos which Ms. Zirbes references in her appeal were generated regarding support documents for employee discipline. . . . Just as reports generated by an inmate incident are not responsive to a request for employee discipline records, documents regarding employee discipline are not responsive to a request for inmate incidents. Therefore, the memos Ms. Zirbes refers to in her appeal are not responsive to the request regarding records from an inmate incident.
Continuing, the Division asserted that although Ms. Zirbes can request "documents regarding employee discipline, " she is entitled to "the initiating complaint and disposition of employee discipline" only, since "it is well settled law that the underlying memos and investigative material are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j)." In support, the Division cited
Board of Medical Licensure v. Courier Journal, 663 S.W.2d 953 (Ky. App. 1983) and
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). It is the decision of this office that Ms. Zirbes' request encompassed memoranda relating to the conduct of the inmate as well as the conduct of Division employees during the December 31, 2009, incident(s), and that because the memoranda were adopted as part of the Division's final action in the matter, they are not protected by KRS 61.878(1)(i) and (j).
The Kentucky Supreme Court has established a standard by which the adequacy of requests to inspect public records is judged. In Commonwealth v. Chestnut, above at note 1, the Court assessed the adequacy of an inmate request for his "inmate file excluding any documents that would be considered confidential." Rejecting the agency's claim that the request was "too broad and overly vague," and that the inmate "must describe the record with reasonable particularity, " Chestnut at 658, the Court observed:
The General Assembly enacted the Kentucky Open Records Act, KRS 61.870, et seq., because it determined that "free and open examination of public records is in the public interest[,]" even if "such examination may cause inconvenience or embarrassment to public officials or others." [Footnote omitted.] And so the General Assembly decreed that with few limited exceptions, "[a]ll public records shall be open for inspection by any person . . ." [Footnote omitted]
The General Assembly's use of the broadly inclusive "any person" demonstrates its intention not to limit the class or type of persons entitled to inspect public records. In fact, the General Assembly used "any person" again in KRS 61.872(2), which provides that "[a]ny person shall have the right to inspect public records. " . . . [T]he open records laws identify no class or type of persons, even prisoners, who are held to a more stringent standard when submitted open records requests. [The agency] bears the burden to rebut the strong presumption in favor of disclosure. [Footnote omitted.]
Chestnut at 660. Applying this rule of law to the appeal before us, we find that the Division improperly imposed "a more stringent standard" on Ms. Zirbes in submitting her request. The fact that she is employed by the Division and has submitted other open records requests in the past does not alter our analysis.
Turning next to the adequacy of the request, the Court opined:
[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected." We must interpret statutes as written, without adding any language to the statute, even in open records cases. [Footnote omitted.] And it is obvious that the General Assembly chose only to require the records to be described. It did not add any modifiers like particularly described.
. . .
Because we lack the power to rewrite the open records act, we cannot add a particularity requirement where none exists. Chestnut described the records he wanted to see-the content of his inmate file. It appears obvious to us that Chestnut's request was adequate for a reasonable person to ascertain the nature and scope of Chestnut's open records request. [Footnote omitted.] He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen. [Footnote omitted.]
Chestnut at 661.
The Court contrasted the adequacy of Chestnut's request under the KRS 61.872(2) requirement with a request to access records by receipt of copies through the mail under the KRS 61.872(3) requirement, noting the absence of a particularity requirement in the former and the presence of a particularity requirement in the latter, and expressed its agreement with the District Court of Rhode Island's "astute holding" that an open records request:
should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure. Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979).
Chestnut at 662. We find that Ms. Zirbes' request, judged by these standards, was indeed "adequate for a reasonable person to ascertain [its] nature and scope." She did not request incident reports relating to the inmate's conduct during the December 31 occurrence only, but "all memos, video, and investigation" of the incident(s), identifying twelve individual employees who had knowledge of them. We reject the Division's argument that because Ms. Zirbes "resides out of county," she "must precisely describe the documents requested" pursuant to KRS 61.872(2)(b). Such a requirement could be properly imposed on Ms. Zirbes only if she requested access by receipt of copies through the mail. KRS 61.872(2)(b) is therefore inapplicable to her request.
We further reject the Division of Community Corrections' assertion that "[i]t is well settled law that the initiating complaint and disposition of employee discipline is subject to disclosure while the underlying documents are considered exempt as preliminary pursuant to KRS 61.878(1)(i) and (j)." "That hackneyed canard," the Supreme Court declared in a different legal and factual context, "was bruited about and confounded long ago." Ex parte Farley, 570 S.W.2d 617, 622 (Ky. 1978). Indeed, it was "confounded" in the very case upon which the Division of Community Corrections relies. In Board of Medical Licensure, above at 956, the Kentucky Court of Appeals adopted the holding in City of Louisville, above, declaring:
In addition to complaints, the Board also seeks to deny the Courier-Journal access to certain letters, correspondence and reports. If these documents were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status. Id. at 659. The trial court found that:
(Emphasis added); accord, City of Louisville at 659 ("if the Chief adopts notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent). 2
Our review of the memoranda submitted to the Office of the Attorney General for in camera inspection pursuant to KRS 61.880(2)(c) confirms that they were, in fact, adopted by the Division as the basis of its final action. We are not at liberty to disclose the content of the memoranda, but note that the apparent 3 decision maker, Major T. R. Gibbs, states that he "based" his conclusions on the information set forth in his memorandum to Mr. J. Kammer. That information consisted of a summary of the memoranda to which Ms. Zirbes requested access. Accordingly, we believe that the memoranda became "a part of the records adopted by" the Division of Community Corrections "as the basis of its final action" and became releasable as public records regardless of how the Division characterized the incident(s) and subsequent inquiry.
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.
Dori ZirbesJames J. KammerMichael R. Sanner
Footnotes
Footnotes
1 Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008).
2 The Division of Community Corrections did not provide a description of the employee discipline process notwithstanding our request under KRS 61.880(2)(c) that it do so.
3 Because the decision to take no action was deemed final action in Palmer, above, the character of the preliminary records at issue in that appeal was indeterminate. Final disciplinary action was preempted by the errant employee's resignation, and the agency could not be said to have adopted the preliminary records as the basis of final action.