Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,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 partially denying a request for records regarding four investigations into misconduct by employees of the KSP. For the reasons that follow, we find that KSP violated the Act in denying release of the requested records.
Jon Fleischaker, attorney, initiated this appeal on behalf of WDRB News by letter dated October 23, 2017. Mr. Fleischaker ("Appellant") explained that Gilbert Corsey, reporter for WDRB News, had requested personnel files of KSP officers investigated for steroids, interviews conducted with the investigations, and the disposition of each case. KSP denied the request, claiming that it lacked specificity. Mr. Corsey submitted an amended request on October 10, 2017, in which he requested access to:
Any and all transcripts, documents, records, audio and video recordings from the KSP investigation completed in 2017 into trooper steroid use that resulted in suspensions for Chad Peercy, Leonard Carpenter, Jonathan C. Sizemore and Anthony Trotter.
In response to Mr. Corsey's amended request for records, KSP provided a letter, October 13, 2017, and one page of responsive records for each person named in the request. The cover letter states that "only the disposition regarding Internal Affairs investigations will be provided." KSP also explained that "[n]o complaints or initiating documents exist, as the report was made by a Federal official," and therefore no such documents would be produced.
Each of the four pages provided by KSP is styled as a "memorandum" from the Commander, Internal Affairs Branch, to the Commissioner, Kentucky State Police. Each page is a pre-printed check-the-box form that indicates: whether the complaint originated from a citizen or internally; the name of the employee being investigated; their rank; whether they are a probationary or permanent employee; and whether they are protected by the Merit System. And, under a heading entitled "FINAL DETERMINATION, " the form prompts the Commander to check a box indicating whether the allegations were substantiated and provide other "remarks." On each of those four documents, the Commander checked the box labelled "Substantiated. " He also noted the consequences each officer would face, which included time without pay and/or suspension of the officer. KSP did not provide any other information about these cases, and withheld the information that the Commander relied upon in determining that the complaints against these officers had been substantiated. KSP asserted in its letter to Mr. Corsey that all such materials are exempt from disclosure under KRS 61.878(1)(i) and (j) because they "express opinions and are preliminary in nature." Mr. Fleischaker filed his appeal of KSP's responses, on behalf of Mr. Corsey and Independence Television Company, d/b/a WDRB News, by letter dated October 23, 2017, and argues that KRS 61.878(1)(i) and (j) do not "create a blanket exemption for all records pertaining to an Internal Affairs case file."
By letter dated October 25, 2017, KSP responded to the appeal, stating that it provided the final dispositions of each Internal Affairs Branch (IA) investigation. KSP also explained that it is the Appellant in a pending Kentucky Court of Appeals case "involving the same subject of this appeal." Kentucky Court of Appeals case No. 2017-CA-750 involves the KSP denying the release of entire internal affairs files in an open records request. KSP provided its brief to the Court of Appeals in that appeal for our reference and requested that, as the subject matter of that appeal is the accessibility of certain IA investigative files, this office should abstain from ruling on the issue in this current appeal. This Office must respectfully decline to hold the instant appeal in abeyance until the pending lawsuit is resolved as requested. See 17-ORD-243 (no provision of the Open Records Act permits the Attorney General "to hold an appeal in abeyance pending resolution of an appeal of an earlier open records decision"); 16-ORD-173; 17-ORD-014; compare 17-ORD-142. "Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected" in 16-ORD-106.
Given the lack of information provided regarding the content of the specific records withheld from disclosure in this case, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office requested that KSP provide us with unredacted copies of the records withheld for the limited purpose of in camera review. KSP promptly complied. When viewed in light of 15-ORD-067 (police department violated the Act in denying access to preliminary documents relating to IA investigation of a former police officer's conduct in their entirety "as the records forfeited their preliminary characterization to the extent such records were adopted, whether explicitly or implicitly, as the basis or a part of the agency's final action regarding the investigation") and 16-ORD-106, and the authorities upon which those decisions were premised, the record on appeal validates only the withholding by KSP of the opinions and recommendations pertaining to discipline imposed that were not relied upon by the final decision maker, i.e. , the Commissioner. 1
In resolving the question presented, this Office is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). "Despite its manifest intention to enact a disclosure statute," however, "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)]."
Beckham v. Bd. of Educ. of Jefferson Cnty., 873 S.W.2d 575, 577-578 (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.
City of Louisville v. The Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982)(if the final decision maker adopted the notes or recommendations of IA as part of his final action, "clearly the preliminary characterization is lost to that extent");
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 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);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001);
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013). See 99-ORD-220; 02-ORD-86; 07-ORD-156; 10-ORD-075; 11-ORD-052; 15-ORD-170.
Here, as in 16-ORD-106, the position of KSP "fails to recognize that our analysis does not end with a determination that documents are preliminary in character, but instead also requires a determination of whether such documents, or portions thereof, were ultimately adopted as the basis or a part of the agency's final action. " 11-ORD-052, p. 3; 15-ORD-067. In other words, "the fact that none of the [records] were expressly incorporated into the final [action] does not end the inquiry." 14-ORD-181, p. 8. In 15-ORD-067 and 16-ORD-106, this office rejected the position set forth by KSP here. Relying upon prior decisions of this office dating back to 2001, the Attorney General determined in 15-ORD-067 that the Hopkinsville Police Department was required to provide "not only any preliminary documents that were expressly incorporated into the [agency's final action] but any documents that formed the basis of the final agency action." 15-ORD-067, p. 7; 15-ORD-170. The analysis contained at pages 3-7 of 15-ORD-067 was controlling in 16-ORD-106 and is followed again here; a copy of that decision is enclosed.
Our in camera review of the records withheld confirms that in the four cases, IA-17-004, IA-17-005, IA-17-006, and IA-17-008, the final decision maker, i.e. , the KSP Commissioner, agreed with the "final determination" by IA, that the allegations which prompted the investigation were "substantiated. " IA based its determination, which the Commissioner reviewed and concurred with, i.e. , adopted, on the facts and evidentiary conclusions of the investigator, who found in each instance that the allegations were substantiated. Accordingly, records comprising the subject investigations were ultimately adopted by the final decision maker and therefore forfeited their preliminary characterization. 2 Compare 10-ORD-046. "Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports." 97-ORD-168, p. 6. To the extent that recommendations for punishment from lower command levels, the Legal Services Branch, and the Deputy Commissioner were not adopted by the Commissioner as the final punishment, and the Commissioner therefore did not rely upon those recommendations, those recommendations retain their preliminary character and may be withheld under KRS 61.878(1)(i) and (j).
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Pursuant to KRS 61.878(1)(i) and (j), public agencies may withhold "[p]reliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency," and "[p]reliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended," respectively.
2 KSP may, of course, review the records "for the purpose of identifying and redacting any information that implicates protected privacy interests" per KRS 61.878(1)(a). 04-ORD-162, p. 14. (Emphasis in original).