Opinion
Opinion By: Jack Conway, Attorney General;James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in its disposition of Marvin W. Phipps' request dated November 10, 2014, for records relating to a classification meeting concerning his complaints against three state troopers. For the reasons that follow, we find no violation of the Act.
In his letter to the commander of the Internal Affairs Branch, Mr. Phipps requested the following:
(1) Copies of any and all Kentucky State Police classification committee meeting [sic] on Tuesday, March 29, 2014, based on the conduct described to you in my letter?
(2) Copies of any and all recording on paper work or DVD recording and the amount of cost of the recordings.
The request was postmarked November 12, 2014, and received by KSP on November 17, 2014.
On November 20, 2014, KSP records custodian Emily M. Perkins replied to Mr. Phipps as follows:
Please be advised that the classification meetings are closed meetings, which are not audio or video recorded, in which preliminary opinions and recommendations are formed. Therefore, your request is denied pursuant to KRS 61.878(1)(i) and (j), which allow the non-disclosure of preliminary documents which may express opinions and are not indicative of final action by the public agency.
Mr. Phipps initiated an appeal on November 24, 2014, received in this office on December 1, 2014.
Ms. Perkins responded to the appeal on December 9, 2014, explaining as follows:
? Internal Affairs ("IA") classification meetings are the very definition of a preliminary meeting in which opinions are offered, discussed, and the meetings are used to plan the next course of action. In accordance with KSP Policy AM-E-1, which requires a representative from the IA Branch to meet with the Administrative Division Director or his designee and a legal advisor, correspondence alleging violations of KSP Policy are reviewed and either classified as correspondence, if the "complaint" on its face does not allege a violation of KSP Policy, or the "complaint" is reviewed to determine which charges the alleged misconduct may constitute. If the "complaint" is not determined to be correspondence, it is classified and returned to IA [for] further investigation.
The "complaint" submitted by Appellant was determined to be correspondence, and no further action or investigation was warranted. Inasmuch as the decision to take no additional action may be construed as final action by the agency, as it related specifically to Appellant's "complaint," Appellant was issued a letter, ? already in Appellant's possession[,] which would be the only document in existence subject to release through the provisions of the Open Records Act.
Thus, the final agency action in this case is reflected in a letter issued to Mr. Phipps on May 6, 2014, which states in pertinent part: "The Kentucky State Police Classification Committee met on Tuesday, March 29, 2014 and based on the conduct described in your letter, no violation(s) of Kentucky State Police Policies and Procedures were identified."
KRS 61.878(i) and (j), respectively, 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; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]
Pursuant to KRS 61.880(2)(c), we have obtained a copy of the withheld record in this case, which consists of a few lines of typed notes in what appears to be a two-page summary of the matters discussed at the classification meeting. While these notes do not contain any preliminary recommendation for a course of action on Mr. Phipps' complaint, they do contain expression of opinion.
In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem [s] from' that document." 10-ORD-034 (quoting City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658, 659, 660 (Ky. App. 1982).
In this case, the record in controversy consists of a few short lines reflecting the discussions at the classification meeting, but containing no recommendation for a disposition of Mr. Phipps' complaint. The notes consist of a description of the complaint and expression of opinion. The opinion, however, recommends no course of action. Moreover, the description contains nothing that could not be gleaned from the complaint itself. Thus, it is impossible to say that the final agency action "necessarily stems from" these notes.
KSP General Order AM-E-1, which governs the agency's internal disciplinary system, states in regard to classification meetings:
Upon receipt of written complaints against agency officers, a representative from the Internal Affairs Branch shall meet with the Administrative Division Director or his designee, and the agency's legal advisor for review and classification of the complaint. If necessary, an administrative inquiry may be initiated by the Internal Affairs Branch or by the appropriate commander to determine whether sufficient evidence exists to warrant further investigation.
One or more recommendations for a final disposition of Mr. Phipps' complaint may well have been orally made at the classification meeting. It is equally possible that a recommendation was made orally to the Internal Affairs commander at some time after the meeting. In either case, however, no such recommendation is recorded in the meeting notes. Since the final agency action does not "necessarily stem from" the notes, we find that they were not adopted and accordingly were properly withheld from inspection.
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.