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 Louisville Water Company ("LWC") violated the Open Records Act in its disposition of Courier-Journal reporter James Bruggers' two requests dated January 8 and 16, 2015. For the reasons that follow, we find that two ethics complaints were improperly excluded as preliminary, but the remainder of LWC's disposition of the request was consistent with the Act.
In his January 8 letter, Mr. Bruggers requested the following (numbers added for convenience):
1. An outside investigative report of attorney Kay Reis on or about June 2011, related to Louisville Water Company's controller and vice president of finance, Amber Halloran.
2. An outside investigative report of attorney Erin Roark on or about April 2013, examining issues possibly involving Halloran and President and CEO Jim Brammell.
3. An internal audit report dated on or about November 2011 related to finance control issues. [Request amended on January 16, 2015: "? dated on or about 11/1/11 and ? regarding specific financial control issues. As part of that request, I am also asking for the responses to that audit that came from the chief finance officer and the controller, between Nov. 1, 2011 and Dec. 31, 2011."]
4. The most recent performance reviews of Brammell and Halloran and any other memos and/or reprimands contained in their respective personnel files related to issues covered by any of the above mentioned reports.
On January 16, Mr. Bruggers requested:
5. [A]ll employee hotline reports or employee complaints against two of the most senior executives of the water company, James Bramm[e]ll and Amber Halloran, since Jan. 1, 2011. I am also requesting all documents related to those complaints, including but not limited to any and all investigative reports and any and all documents related to the resolution of those complaints.
Item 4 does not appear to be at issue in this appeal.
KWC Vice President and General Counsel Barbara K. Dickens responded to Mr. Bruggers' initial request on January 13, 2014. In response to both item 1 and item 2 of the request, she stated:
Any such records are exempt under KRS 61.878(1)(a) because they contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. These records are also exempt under KRS 61.878(1)(i) as preliminary drafts, notes and correspondence not intended to give notice of final action of the Bard of Water Works or the Louisville Water Company. Additionally, any such records are exempt under KRS 61.878(1)(j) as preliminary recommendations and memoranda in which opinions were expressed.
In response to item 3, she requested more specificity. In a subsequent response dated January 22, 2015, Ms. Dickens replied to Mr. Bruggers' more detailed description of the audit records sought in item 3:
The report you have requested, and the responses to it, are all preliminary draft documents containing handwritten notes and are therefore exempt under KRS 61.878(1)(i).
She responded to item 5 as follows:
Please find attached an January 19, 2012 EEOC Charge responsive to your request. Ethics Line reports and investigative files that you have requested are exempt under the Kentucky Open Records Act KRS 61.878(1)(i) because they are preliminary drafts, and those reports did not lead to any final action. Additionally, the investigation documents contain opinions and preliminary recommendations and are, therefore, exempt under KRS 61.878(1)(j). There were no written complaints related to two investigations. Please note that LWC assumes the reports made to Ethics Point (i.e. the "hotline" ) are made by employees based on the question posed to the complainant regarding whether the person reporting is an employee, but there is no other verification performed.
Mr. Bruggers initiated an appeal to this office on January 27, 2015.
On February 10, 2015, attorney Mark S. Fenzel submitted a detailed response to the appeal. Further, in conjunction with our request under KRS 61.880(2)(c) to review the disputed records in camera, attorney Dana L. Collins submitted some additional argument on March 18, 2015. For the sake of organization, we shall address each contested item of Mr. Bruggers' request (1-3 and 5) individually.
Item 1. Investigative report by attorney Kay Reis related to Amber Halloran
In his February 10 letter, Mr. Fenzel stated:
First, LWC is not in possession of any report that indicates it is authored by attorney Kay Reis. There is a document referring to this investigation entitled, "DISCUSSION WITH AMBER HALLORAN JUNE 1, 2011," which contains the following wording in the heading, "CONFIDENTIAL-PRELIMINARY --DRAFT FOR DISCUSSION PURPOSES." This draft contains information involving staff who left the company voluntarily and other currently employed lower managerial employees. We assert that the disclosure would constitute a clearly unwarranted invasion of the personal privacy of those individuals as set forth in KRS 61.878(1)(a) requiring redaction of their names or identifying characteristics.
However, there are other provisions that merited full exemption of this record, making redaction of no use. This draft which exists in hard copy, was never made final[.] The descriptions on the document clearly indicate that it is a preliminary draft not intended to give notice of final action of LWC or the Board of Water Works (BOWW). ? Additionally, this investigation was performed for the purpose of obtaining professional legal services and providing a legal opinion, rendering it exempt under KRS 61.878(1)(j).
Furthermore, as acknowledged by Mr. Bruggers, the draft discussed above was prepared in its draft form by an attorney hired by the LWC President to conduct an investigation. Therefore, the communication provided in this record is covered by the attorney-client privilege and is not subject to disclosure on that basis as well.
The most pertinent analysis is under the "preliminary document" exceptions. KRS 61.878(1)(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[.]
It does appear to be the case that the record in question is in draft form and evidently has never been issued as a finalized document. Furthermore, counsel for KWC clarified on April 7, 2015, that the recommendations made in the draft report were not adopted or acted upon and the matter remained pending as of the date of Mr. Bruggers' request. 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.
Since the investigator's recommendations were not acted upon and the investigation was still pending at the time of Mr. Bruggers' request, we find no violation of the Open Records Act in the withholding of this draft report. As the preliminary nature of the record is dispositive, we need not address the arguments made by KWC regarding privacy or attorney-client privilege.
Item 2. Investigative report by attorney Erin Roark related to Jim Brammell
Mr. Fenzel's February 10 response to this appeal stated: "There has been no decision to take final action or forgo final action with regard to the information in the requested report." Since the subject investigation is still pending, we find that this report retains its preliminary status for the same reasons stated above in regard to item 1. Accordingly, we need not address KWC's argument as to attorney-client privilege.
Item 3. Internal audit report
The records withheld in response to item 3 are described by LWC as "a memorandum drafted by the former Internal Auditor, a response drafted by the former Controller, and a response drafted by the Vice President, Finance and Treasurer." LWC relies upon KRS 61.878(1)(i) to exempt these as preliminary drafts.
Our confidential review of these documents reveals a four-page "Internal Audit Audit [ sic] Memo" addressed to Greg Heitzman from Roger A. LeMaster, with a "CC" line left blank, dated November 1, 2011, with some handwritten notes at the bottom of the last page from an unidentified person to Greg Heitzman dated December 12, 2011. The Audit Memo is marked "Confidential" (not "Draft") and is signed by Mr. LeMaster.
The other document is a four-page response to Mr. LeMaster from Amber Halloran (with copies to Greg Heitzman and Scott Worthington) dated December 5, 2011. This document is marked "Draft" and is unsigned.
Mr. Fenzel's response to the appeal states LWC's position on these records as follows:
The basis for LWC's position lies in the condition of the actual documents. These documents are computer printed documents in memo form but with handwritten notes that appear to be the handwriting of the former Internal Auditor. After considerable due diligence, LWC General Counsel confirmed that this is the only version of the requested documents. Furthermore, notations on the very back page of the third document indicate there was some question regarding next steps concerning this audit, and those were the only substantive notes. This audit was never taken to the BOWW Audit Committee and does not appear in any BOWW Audit Committee Report.
Bearing in mind the challenges to developing the record posed by the fact that the principal correspondents in these records are no longer working for LWC, we tend to agree that the handwritten notes dated December 12 appear to match Mr. LeMaster's signature and refer to the possibility of amending the recommendations in the Audit Memo. Under the totality of the circumstances as described by LWC, it seems that both of these documents were regarded as drafts which were neither finalized nor acted upon. Thus, we affirm LWC's disposition of item 3.
Item 5.1 Employee ethics complaints and hotline reports
Item 5 of Mr. Bruggers' request yielded four different "Ethics Point Reports," or electronic forms consisting of a complaint and subsequent correspondence. Mr. Fenzel addresses these as follows:
a. Ethics Point Report 7 and 8 -- These reports were essentially the same report with non-substantive differences and were treated as one investigation because they were filed one day apart by the same LWC employee. LWC responded to this employee's concerns, but ultimately she decided to grieve her differences via other legal avenues. LWC provided Mr. Bruggers a copy of her Equal Employment Opportunity Commission complaint that names one of the two individuals he has listed. We believe Ethics Point Report numbers 7 and 8 were preliminary and not intended to give notice of final action both on the part of the agency as well as the part of the complainant, who took her grievances elsewhere. They are exempt under KRS 61.878(1)(i). ?
b. Ethics Point Report 27 -- This report began the work requested under Paragraph 2 herein [ i.e. , item 2 of the request] and is exempt for the reasons stated therein.
c. Ethics Point Report 41 -- This report filed last fall in [ sic] still in process. There has been no decision to take final action or to forgo final action by the agency, and therefore, it is exempt under KRS 61.878(1)(i).
Given that Ethics Point Reports 27 and 41 are still in process, our analysis in regard to items 1 and 2 of the request applies. Thus, the records were properly excluded as preliminary in nature.
As for Ethics Point Reports 7 and 8, LWC counsel clarified on April 7, 2015, that LWC "decided to end their preliminary investigation once the complainant filed an EEOC complaint," thus determining that no action would be taken on the internal complaints. "It is well established that a complaint, initiating or charging document, or any other document that spawns an investigation must be made available for public inspection at the conclusion of the investigation and upon the imposition of final agency action, including the decision to take no action." 05-ORD-005 (emphasis added; citing 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); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); 93-ORD-103; 01-ORD-83).
Therefore, those portions of Ethics Point Reports 7 and 8 which consist of a complaint or other initiating document are no longer exempt as preliminary under KRS 61.878(1)(i), due to the apparently mutual decision of the employee and the agency to take no further action in that process. LWC does not raise, and consequently we do not address, the issue of whether any material in those complaints could properly be subjected to redaction under the provisions of KRS 61.878(1).
Conclusion
We conclude, therefore, that LWC improperly relied upon KRS 61.878(1)(i) as to Ethics Point Reports 7 and 8. With regard to all other records, LWC's response was in compliance with the Open Records Act.
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 61.880(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.
Footnotes
Footnotes