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 ("KSP") violated the Open Records Act in its disposition of David Hull's request dated December 8, 2014, for records relating to a classification meeting concerning his complaints against a state trooper. For the reasons that follow, we find that a form showing the outcome of the meeting was improperly excluded as preliminary.
In his December 8 letter, Mr. Hull requested the following:
Any and all documents that the Kentucky State Police possess in regards to complaints against officer Michael McPherson who is employed at the Morehead facility of [the] KSP.
Any documents relating to the investigation (if any) into those complaints against McPherson complaints [sic] and any documented discussions relating to those complaints.
Any documentation of the minutes of the disciplinary board meetings that were reportedly held to discuss the complaints filed against McPherson.
Documentation on the outcome of any meetings held or investigation performed with regards to the aforementioned complaints.
The record does not reflect when the request was sent to or received by the KSP.
On December 17, 2014, KSP records custodian Emily M. Perkins replied to Mr. Hull as follows:
Enclosed please find all records subject to disclosure. Certain records of a preliminary nature in which opinions were expressed and were not indicative of final action by the agency have been removed pursuant to KRS 61.878(1)(i) and (j), which exempt such records from disclosure.
Mr. Hull's appeal was received by this office on January 28, 2015.
Ms. Perkins responded to the appeal on February 3, 2015, stating as follows:
Upon receipt of Appellant's request, the KSP gathered and produced all correspondence received by or sent from the KSP Internal Affairs section and the final disposition or outcome taken regarding the letters received. The only documents withheld from production were preliminary records that express opinions and were not the final action taken by the agency; therefore, those records were properly withheld pursuant to KRS 61.878(1)(i) and (j), which state that preliminary records that express opinions are exempt from disclosure.
The final agency action in this case is evidently reflected in a letter issued to Mr. Hull on November 7, 2014, which states in pertinent part: "Your letter of complaint was presented to the Kentucky State Police Classification Committee and upon review of the information provided, no violation(s) of Kentucky State Police Policies and Procedures were identified." In the parlance of KSP Internal Affairs, therefore, Mr. Hull's complaint was determined to be "correspondence" requiring no further action. Cf . 15-ORD-032.
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 form apparently filled out at an Internal Affairs complaint classification meeting on November 5, 2014. 1 The form lists the attendees at the meeting and, under "Notes," gives the disposition for each complaint under consideration. In regard to Mr. Hull's complaint against Trooper McPherson, the form states "Correspondence, " which is indeed how the complaint was ultimately classified.
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 solely of a form reflecting the persons in attendance and the dispositions made of complaints at the classification meeting. The form contains no expression of opinion or recommendation or formulation of policies, other than the actual classification as "correspondence" that was adopted as the final action on Mr. Hull's complaint. Therefore, it is evident that the final agency action necessarily stems from the content of this form insofar as it relates to Mr. Hull's complaint. 2 Accordingly, the form does not retain a preliminary character.
In so concluding, we distinguish our recent decision in 15-ORD-032, in which the Internal Affairs classification meeting had resulted in a page of notes that contained expression of opinion but no recommendation of a final disposition on the complaint. Here, the document shows just the opposite, reflecting a disposition of the complaint but no other expression of opinion. Therefore, the KSP's withholding of the form was not supported by KRS 61.878(1)(i) or (j).
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.
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