Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Lawrence Trageser initiated this appeal challenging the partial denial by the Jefferson County Sheriff's Office (JCSO) of his January 22, 2015 request for "any and all records reflecting the complaint, internal investigation findings, hearing documents, disciplinary action taken and any other documents associated with" investigation of a complaint filed against Jefferson County Deputy Steve Coulter sometime during November 2014, which resulted in Deputy Coulter being suspended without pay for thirty days beginning on December 31, 2014. Legal counsel for the JCSO notified Mr. Trageser that "[r]esponsive records permissible for release include the initiating document, Notice of Personnel Action, and the Disciplinary Action taken by the JCSO for a total of four (4) pages," which it provided electronically per his request. The JCSO quoted the language of KRS 61.878(1)(a), (i), and (j) in denying access to unspecified responsive documents without further explanation. It also withheld "[c]ommunications involving operations of various taskforces that Sheriff Deputies are assigned to with federal and state agencies." Counsel for the JCSO argued that undercover activities and identities of the officers assigned must be protected. The JCSO cited KRS 61.872(6) and KRS 61.878(1)(h), generally asserting that "[i]t would be an unreasonable burden to reassign officers identified. Additionally, revealing undercover activities and officers' identities could jeopardize current ongoing investigations and information could be used to circumvent or violate the law." Quoting the language of KRS 61.878(1)(l), "operating in tandem with KRE 503 (Attorney-client privilege)," the JCSO withheld another group of unspecified responsive documents without further identification or explanation. On appeal Mr. Trageser challenged the agency's unexplained redactions of the documents provided as well as its failure to provide "any investigation documents."
Upon receiving notification of Mr. Trageser's appeal from this office, counsel for the JCSO cited KRS 61.872(6) and 61.878(1)(h) as the bases for the unspecified redactions made in the Initiating Document and the Disciplinary Action provided to Mr. Trageser without explanation. Counsel invoked KRS 61.878(1)(a) to justify the redaction of Deputy Coulter's home address from the Notice of Personnel Action. 1 The JCSO reiterated its reliance on KRS 61.878(1)(i) and (j) as the bases for denying access to unspecified responsive documents but again offered no explanation of how any of those statutory exceptions applied to such documents or groups of documents. In denying access to "Communications between JCSO and its general counsel" the JCSO reiterated its reliance on KRS 61.878(1)(l) and KRE 503 but did not attempt to establish that all of the necessary elements were satisfied as to all of the documents withheld on that basis. With regard to responsive "Task Force Communications from federal, state and local law enforcement agencies along with from [sic] various taskforces that are deemed sensitive in nature and contain intelligence information that is for official use only," the JCSO reiterated its reliance on KRS 61.872(6) and 61.878(1)(h) but offered no further description of the records' nature or contents.
Given the scarcity of information presented concerning the content of the records in dispute, and pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked the JCSO to provide unredacted copies of all existing documents responsive to Mr. Trageser's request for purposes of in camera review and to specify what information was redacted from the records provided to him. The JCSO promptly complied with said request. Counsel divided the records withheld into six categories, the first of which the agency characterized as "FBI Documents." These documents "are property of the Federal Bureau of Intelligence," counsel maintained, "and are prohibited from public dissemination pursuant to KRS 61.878(1)(k)." No "federal law or regulation" was referenced. With regard to "Pre-Termination/ Pre-Decisional Documents," counsel advised that said records contain "communications and summaries that are not intended to be final action by" the JCSO "[and] as such are exempt from disclosure under KRS 61.878(1)(i) and (j) as preliminary documents." The JCSO did not clarify whether any of those documents were adopted, in whole or in part, as the basis for the agency's final action. With regard to documents generically identified as "Attorney-Client privileged communications," or "Communications between JCSO and its general counsel, " the JCSO invoked "KRE 503 operating in tandem with KRS 61.878(1)(l)" as "prohibiting release as confidential communications."
The JCSO described "Internal Affairs Pre-Decisional [sic] reviewed but not adopted in final action by Sheriff" as "documents containing preliminary communications not intended to be final action, instead notice and information of internal investigation," citing KRS 61.878(1)(i) and (j) as the bases for denial. In withholding "Internal Affairs Investigatory Statements considered but not adopted in final action by Sheriff . . . also containing interview, reference, and identity of special task force FBI agent," counsel invoked KRS 61.872(6) and 61.878(1)(h), arguing that said records "must remain confidential and protected against public disclosure pursuant to Task Force Communications from federal, state and local law enforcement agencies along with from various task forces that are deemed sensitive in nature and contain intelligence information that is for official use only." Also quoting the language of KRS 61.878(1)(i) and (j), the JCSO reiterated this argument verbatim as to its "Case Summary of Investigation and Deputy Photo," but invoked KRS 61.872(6) and 61.878(1)(h) again. The JCSO also reiterated verbatim the arguments from its original response to Mr. Trageser's appeal regarding the redactions made from the minimal records provided.
Having reviewed all existing responsive documents in camera as well as the agency's February 20, 2015, supplemental response, this office lacked sufficient information by which to determine whether many of the documents were properly withheld; this office subsequently provided the JCSO with a third opportunity to justify its denial by requesting additional information. See KRS 61.880(1); 61.880(2)(c). Our questions and the responses of the JCSO appear below:
Please identify the specific federal law or regulation which, in the agency's view, prohibits disclosure of those [FBI] documents [referring to pages 001-008 identified as Tab 1] and explain how it applies .
[T]he subject documents are the property of the [FBI] and are prohibited from public dissemination without the authorization of the FBI. JCSO does not own such documents and cannot violate the express prohibition against dissemination to any agency or individuals outside of those specifically authorized by the FBI to receive such information. Further, with such documents being the property of the United States Federal Government, they are precluded from [sic] Kentucky Open Records Act pursuant to KRS 61.878(1)(k). [Citations to provisions of the Freedom of Information Act (FOIA) omitted.] Because such records are owned by the FBI and controlled by Federal Statute, the appropriate request must be made to the [FBI] under the appropriate standards of [FOIA]. . . .
Please explain the purpose and function of these unexecuted documents marked "Duplicate" in the context of the investigation process [referring to pages 009-019 identified as Tab 2] .
[S]uch documents contain communications and summaries that are not intended to be final action by JCSO as such are exempt from public disclosure under KRS 61.878(1)(i) and (j) as preliminary documents. JCSO advises that these documents were unexecuted because the initial recommendation was to terminate the deputy. Before discipline is imposed, the deputy is informed of the charges and the proposed disciplinary action under consideration. The deputy has an opportunity to respond at a meeting with the Sheriff before any action is taken. In the context of any investigation, the pre-discipline opportunity to respond is usually the last step unless more information comes forth during the meeting. There is a signed document confirming receipt of the pre-termination recommendation; however, JCSO advises that because the deputy was not terminated, these documents are not the final action taken by the Sheriff and are claimed as preliminary. . . .
[P]lease specify which of the documents found at Tabs 5 and 6 identify the "special task for FBI agent" and explain how disclosure would harm the agency by "premature release of information to be used in a prospective law enforcement action or administrative adjudication ."
Sheriff Aubrey advises that the FBI agent is not an employee of JCSO and the Sheriff is not at liberty to reveal such information to the public. In addition, the agent is working undercover and revealing his identity would harm the work of the special task force and the prospective law enforcement activities in which he is engaged pursuant to KRS 61.878(1)(h) in tandem with KRS 17.150(2) and 5 U.S.C. 552 (7) et. seq . Sheriff Aubrey also advises that the identity of the Deputy Sheriff assigned to the special task force must also be protected because of the undercover law enforcement activities which the deputy sheriff is engaged [in] pursuant to KRS 61.878(1)(h) in tandem with KRS 17.150(2) and 5 U.S.C. 552(7) et seq . 2
Please identify the basis for withholding the "Deputy Photo" located at Tab 6 . Sheriff Aubrey advises that he will waive any exemption that may apply to the Deputy Photo and will provide it to [Mr. Trageser 3].
In the "Disciplinary Action" provided to Mr. Trageser, [S]heriff John Aubrey indicated that his determination was made after he "reviewed the correspondence relating to the above charges." Please identify the "correspondence" to which Sheriff Aubrey referred .
Sheriff Aubrey advises that the correspondence he reviewed is the entire investigative file. However, he did not adopt any particular record as part of his decision. His final decision was based on admissions and explanations made personally by Deputy Coulter to the Sheriff. Additionally, there are portions of the statements in which information as to the identities of both the FBI Agent and the Sheriff Deputy assigned to the Special FBI Task Force are revealed along with details of such sensitive law enforcement activities which must remain protected as explained above.
Please note, that to the extent Deputy Coulter's statement also contains admissions of misconduct and is deemed "adopted" by your office, Sheriff Aubrey advises that there is information that must be redacted under the same exemptions listed for Tab 1, i.e ., [KRS 61.878(1)(a)(phone number, date of birth), 61.878(1)(h), 61.878(1)(k), 5 U.S.C. Section 522(b)(7), and KRS 17.150(2)].
The JCSO also provided this office with redacted copies of the records disclosed to Mr. Trageser, as requested, for purposes of comparison with unredacted copies already provided for in camera review. It was not readily apparent from that comparison why the information redacted from the Initiating Document and the Disciplinary Action is protected under KRS 61.872(6) (see footnote 5) and/or 61.878(1)(h)(identities of informants can legitimately be withheld though none are named therein). The JCSO has not provided any explanation of how either statutory exception applies either initially or in any of the supplemental responses provided. Until the JCSO justifies the withholding of said information with adequate specificity to justify its reliance on KRS 61.872(6) and/or 61.878(1)(h) and 17.150(2), in writing, it has not discharged its duty under the Open Records Act. See KRS 61.880(1) and (2)(c). Based upon the following, this office finds the agency's initial response both procedurally and substantively deficient otherwise as well, but partially affirms the denial by the JCSO of Mr. Trageser's request based upon our in camera review of the other documents remaining in dispute and information ultimately provided in response to inquiries made under KRS 61.880(2)(c) regarding those documents.
KRS 61.880(1) and 61.880(2)(c)
KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " (Emphasis added). In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 07-ORD-226; 12-ORD-211. In other words, a public agency must cite the applicable statutory exception, if any, and provide a brief explanation of how that exception applies to the records being withheld, or portions thereof, per KRS 61.880(1), in order to satisfy the burden of proof imposed upon public agencies under KRS 61.880(2)(c). 04-ORD-106, p. 6; see 03-ORD-045.
This office has repeatedly held that a public agency "is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable." 97-ORD-41, p. 6; 07-ORD-169. Although there is no "clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence]," this office has long recognized, "it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" does not satisfy that burden. Id., p. 11.
More recently, the Kentucky Supreme Court addressed the unique challenges associated with disputes arising under the Open Records Act in City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). "Whereas in most disputes both sides have more-or-less equal access to the relevant facts, so that factual assertions and legal claims can be adversarially tested," the Court observed, "in ORA cases only the agency knows what is in the records." Id. at 851. Accordingly, the Court suggested that a public agency "should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim and the court to assess it." Id. at 852. See 15-ORD-003 (Attorney General was obliged to comment on the agency's failure to provide sufficient detail in either its original or its appeal response); 14-ORD-039. Bearing in mind that public agencies like the [JCSO] have the burden of proof under KRS 61.880(1) and 61.880(2)(c) in denying requests, "the Attorney General must conclude that both responses lacked the requisite specificity and thus were both procedurally and substantively deficient." 12-ORD-211, pp. 7-8.
In withholding all of the documents requested except for the Initiating Document, Notice of Personnel Action, and the Disciplinary Action, the JCSO merely paraphrased the language of KRS 61.878(1)(a), (i), and (j) without identifying the documents or groups of documents to which said exceptions applied or providing any explanation of how those statutory exceptions applied to same; likewise, the agency referenced KRS 61.878(1)(l) and KRE 503 but made no attempt to describe any of the documents withheld on that basis or establish that all of the necessary elements were present as required to justify invocation of the attorney-client privilege. The JCSO did not initially make a "bare assertion" to justify the unspecified redactions made in the four pages that were released. On appeal the JCSO essentially reiterated its original response as to all of the documents withheld. It belatedly invoked KRS 61.872(6) and 61.878(1)(h) to justify the still unspecified "redacted portions" in the Initiating Document and the Disciplinary Action; the agency did specify that Deputy Coulter's home address had been redacted from the Notice of Personnel Action per KRS 61.878(1)(a). The JCSO described the documents withheld on the basis of the attorney-client privilege codified at KRE 503 as "communications between JCSO and its general counsel" without further comment. Neither the agency's original response to Mr. Trageser's request nor its appeal response contained the "particular and detailed information" required to comply with KRS 61.880(1) or satisfy its burden of proving how the cited exceptions applied to specific documents or groups of documents withheld. The JCSO partially remedied these deficiencies in response to subsequent inquiries but repeated its earlier arguments in part and still failed to provide sufficient information as to some documents.
KRS 61.878(1)(k)
With regard to documents ultimately described as "FBI Documents," the JCSO belatedly invoked KRS 61.878(1)(k), which removes from application of the Open Records Act "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " This office has consistently rejected the argument eventually made by the JCSO, holding that "FOIA has no force as to state records, only the records of a federal agency. By invoking KRS 61.878(1)(k) and 5 U.S.C. 552(b), [a public agency] attempt[s] to engraft onto the state act the federal exemptions. While many of the exemptions contained in the state and federal acts are similar in purpose and effect, neither act is intended to supplement the other." 05-ORD-094, pp. 6-7 (citation omitted)(directive from general counsel for the federal agency is "not the functional equivalent of a federal statute or regulation by operation of which a public record in the hands of a state or local agency in Kentucky must be withheld per KRS 61.878(1)(k)"); OAG 83-256 (FOIA "deals with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat that statute as though it were a state statute[;] the statute makes no pretense of controlling state records, either to make them open or to make them closed"); see also 96-ORD-244; 98-ORD-89; 01-ORD-59.
This office must conclude, based on the limited information provided, that the documents in dispute are "public record[s]" within the meaning of KRS 61.870(2) because, in this case, they were "used, in the possession of or retained by a public agency, " within the meaning of KRS 61.870(1), namely the JCSO, and custody and control of the records were thus reposed in that agency. 05-ORD-094, p. 4. However, if the JCSO can establish, for instance, that said records were loaned to it under authority of 28 U.S.C. § 534, providing that "government exchanges of criminal records with state and local government organizations are subject to cancellation if they are disseminated without authority," OAG 90-90, p. 2, as the information contained on the first page suggests, the agency is authorized to deny access on the basis of that separate federal law or regulation per KRS 61.878(1)(k). The JCSO has failed to cite any such authority to date, relying instead on FOIA exceptions which, as indicated, are not applicable.
KRS 61.878(1)(i) and (j)
"Despite its manifest intention to enact a disclosure statute," the Kentucky Supreme Court has observed, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." 4 Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994). See Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions, " in a variety of contexts. See City of Louisville at 658-660; Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983)(holding that "purely investigative materials" remain exempt under the statute and City of Louisville but "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"); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992)( Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). See 99-ORD-220; 02-ORD-86; 07-ORD-156; 10-ORD-075; 11-ORD-052.
With regard to documents ultimately identified as "Pre-Termination/ Pre-Decisional," pages 009-019, the agency's response that such documents are not a "final action" is not dispositive. However, a review of documents relating to Deputy Coulter's "Pre-Termination Opportunity to Respond" in light of the agency's explanation of their purpose and function validated its position that such documents were not adopted, in whole or in part, as the basis for the final action by the JCSO as he was ultimately suspended rather than being terminated. Accordingly, those documents retained their preliminary status under KRS 61.878(1)(i) and (j). Under the well-established legal authority summarized above, however, the same cannot be said of those documents characterized as the "correspondence relating to the above charges" by Sheriff Aubrey in the final "Disciplinary Action" of the JCSO. Although not initially clear from the record on appeal, counsel for the JCSO ultimately confirmed that Sheriff Aubrey was referring to the "entire investigative file" as that language implied (also encompassing pages 031-036, 037-096, and 097-150). 5 Sheriff Aubrey "did not adopt any particular record as part of his decision" but has acknowledged that his decision was "based on admissions and explanations made personally by Deputy Coulter[.]" To that extent, said "correspondence" or "Internal Affairs Investigatory Statements" forfeited their preliminary status.
"[A]n internal affairs report cannot be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. " 97-ORD-168, p. 6; compare 01-ORD-47; 01-ORD-83. Moreover, "[s]uch records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports." 6 Id. The JCSO is entitled to withhold information contained in those records upon which the final decision maker based his determination, such as personal information that implicates privacy interests protected under KRS 61.878(1)(a), or information that will identify confidential informants under KRS 61.878(1)(h), etc., assuming that it cites the relevant statutory exception and explains how it applies to such information, but may not withhold the "correspondence" adopted, in whole or in part, simply because it contains protected information as it has a duty to separate protected material per KRS 61.878(4) . 7 See 07-ORD-090.
Attorney-Client privilege codified at KRE 503
The courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege in the context of an Open Records dispute if , as in Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), all of the elements of the privilege(s) are present. See 01-ORD-246; 02-ORD-161; 10-ORD-177. However, this office has also recognized that a public agency "'cannot withhold every document that relates to a particular matter under KRS 61.878(1)[(l)] and the attorney-client [privilege] simply because it is represented by an attorney in the matter.'" 01-ORD-246, p. 17, quoting OAG 91-109. In 03-ORD-015, this office held that the attorney-client privilege could not "be invoked absent a showing that each of the elements of KRE 503" was present. Id., p. 6, note 3. More recently, the Kentucky Supreme Court recognized that the attorney-client privilege "does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions." Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008).
In sum, KRE 503(b) only applies when a public agency can establish that all three of the following elements are present: 1) relationship of attorney and client; 2) communication by or to the client relating to the subject matter upon which professional advice is sought; and 3) the confidentiality of the expression for which the protection is claimed. 97-ORD-127, p. 1(citation omitted); 12-ORD-206. The JCSO did not initially attempt to make a showing that each of the required elements could be satisfied as to all of the documents withheld on the basis of this privilege. Nevertheless, our in camera review of the documents identified as Tab 3, pages 003-030, the contents of which cannot be revealed under KRS 61.880(2)(c), confirmed that all of the pages fall within the parameters of KRE 503. The documents can generally be described as memoranda from the legal counsel advising Sheriff Aubrey/the JCSO (relationship of attorney/client) concerning the subject matter upon which professional advice was being sought (investigation of Deputy Coulter) and which contain his confidential "report and recommendations. " Accordingly, the JCSO was authorized to withhold those documents on the basis of KRE 503 and KRS 61.878(1)(l), notwithstanding deficiencies in the agency's original and supplemental responses.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 This office has consistently recognized that a public employee's home address and telephone number can be properly withheld on the basis of KRS 61.878(1)(a) insofar as disclosure thereof does not generally serve any "open records related public interest." 10-ORD-129, p. 5.
2 The JCSO was not asked to provide such information to the general public; rather, this office asked the agency to explain which documents, or portions thereof, identify the individual agent in order to facilitate our ability to determine through in camera review of the records whether some or all were properly withheld on the basis of KRS 61.878(1)(h). This JCSO still has not done and, consequently, this office lacks adequate information to make any finding as to whether its reliance was misplaced. See City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). In any event, KRS 61.878(4) requires a public agency to "separate the excepted material and make the nonexcepted material available for inspection."
3 Notwithstanding the agency's failure to justify the withholding of this photograph both initially and on appeal, the related issues were rendered moot upon its disclosure per 40 KAR 1:030, Section 6.
4 Among the public records that may be excluded from public inspection in the absence of a court order are documents identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
5 The JCSO invoked KRS 61.872(6) in withholding "communications involving operations of various taskforces that Sheriff Deputies are assigned to with federal and state agencies." On appeal the JCSO cited this provision as the basis for withholding "Internal Affairs Investigatory Statements considered but not adopted in final action by Sheriff -- pages 037-096," located under Tab 5, and "Case Summary of Investigation including Deputy Photo - pages 097-150," located under Tab 6. Assuming the Sheriff did not adopt such records, explicitly or implicitly, our analysis relative to KRS 61.878(1)(i) and (j) applies with equal force and further discussion is unwarranted. If the Sheriff did adopt such records in reaching his final determination, and those records therefore forfeited their preliminary status under said analysis. The JCSO did not, in the alternative, provide "clear and convincing" evidence that disclosing all of the records located under Tabs 5 and 6 in their entirety would place an unreasonable burden on the agency.
6 In rejecting the agency's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, the Attorney General reasoned:
[T]he courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation. To the extent that prior open records decisions of this office are inconsistent with this view, they are hereby modified. Where the preliminary investigative report or records are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) and (j) exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed.
01-ORD-83, p. 14.
7 It also remains unclear if or how documents including an "Internal Routing Slip," the December 31, 2014, memorandum directed to specific detectives and the "Internal Affairs Unit" containing the determination that allegations were "Sustained," and the November 14, 2014, memorandum "Re: 48-Hour Notice" fall within any of the cited exceptions.