Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Prospect Police Department ("Department") violated the Open Records Act in denying the January 31, 2018, request of Natalia Martinez, WAVE3 News Anchor/Reporter, for a "copy of any written or recorded statements or interviews made by former Prospect Assistant Chief Todd Shaw ['Shaw"] in relation to the Prospect Police Department Internal Investigation Case Number 17-01." As verification that such a statement exists, Ms. Martinez attached her copy of the November 7, 2017, "Internal Investigation Warning Case Number: 17-01" containing Shaw's signature, which advised that his interview "will be a sworn statement" and further indicated that his refusal to "answer all questions" posed to him would result in "administrative charges" being placed against him, "which could result in disciplinary measures up to and including" his termination. By letter dated February 2, 2018, attorney Charles D. Cole, of Sturgill, Turner, Barker & Moloney, PLLC, issued a timely written response to Ms. Martinez on behalf of the Department. Mr. Cole initially noted that he responded to all pending requests by WDRB, WAVE, and The Courier-Journal on behalf of the City/Department by letter dated January 31, 2018. Mr. Cole maintained his position that "the City has met its obligations under Kentucky's Open Records Act through the City's response and production of documents provided on January 31[.]"
Having identified the five categories of investigative records already produced in response to prior requests, Mr. Cole acknowledged that Shaw's "resignation constituted a 'final action' such that these documents were no longer excluded as 'preliminary' from production under Kentucky's Open Records Act. See KRS 61.878(1)(i) ; see also
Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky. App. 2001)? ." Citing
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky. App. 1982), Mr. Cole stated that Shaw's "interrogation/ interview aka sworn statement would not have formed the basis for charges against Shaw by Chief Sherrard. Rather, it was the Facebook messages and posts, which have been produced by the City, that would have supported charges against Shaw." In summary, Mr. Cole observed that "the City's internal investigation began with correspondence received by the Mayor from the County Attorney and was concluded with Shaw's resignation. The County Attorney's letter . . . could be considered a 'complaint.' In any event, this letter and its enclosures triggered both Shaw's immediate suspension and the internal investigation of him." Based upon the foregoing, the Department concluded that said letter, including the enclosures, i.e. , Facebook posts and messages, and the other documents produced, were subject to disclosure under the Act, citing Palmer v. Driggers, above , but continued to maintain that Shaw's interrogation/ interview retains preliminary status and was properly withheld.
On appeal, Ms. Martinez questioned the credibility of the Department's assertion that Mr. Shaw's responses during his interrogation/ interview would not have formed part of the basis for administrative charges. Ms. Martinez argued that without disclosure of the recorded statement by Mr. Shaw, there is no way for the public to determine how the matter was handled by all involved parties, including "whether and to what extent the [Department] followed the appropriate procedures under KRS 15.520(5)." Upon receiving notification of Ms. Martinez's appeal from this office, Mr. Cole elaborated upon his client's position. Mr. Cole advised that from the date of suspension through Shaw's date of resignation, the Department "sought to comply with the Police Office Bill of Rights [KRS 15.520], and, in this regard," the Department offered the March 8, 2018, affidavit of Chief Sherrard, which confirmed the following timeline:
. September 1, 2017 - Chief Sherrard suspended Lt. Col. James T. Shaw for possible violations of Department policy, "including but not limited to Chapter 12.40 Internal Rules: Conduct Unbecoming, based upon correspondence and Facebook messages that were received by Prospect Mayor John Evans and Jefferson County Attorney Michael O' Connell";
. November 2, 2017 - Chief Sherrard "had already reviewed the Facebook messages of Shaw and determined that many of the messages contained statements that may be characterized as deeply offensive, violent and racist";
. November 2, 2017 - Chief Sherrard issued a 48-Hour Notice of Interrogation providing Shaw with notice of an "official administrative inquiry regarding allegations of possible misconduct on your part contained in the attached 'Affidavit of Complaint or 'Letter from the Chief of Police to Initiate an Administrative Investigation, '" IA Case No. 17-01;
. November 7, 2017 - Chief Sherrard interviewed Shaw and he provided sworn answers to questions regarding: (1) whether he assisted a suspect in a criminal case by improperly utilizing the NCIC system on his behalf; and (2) the Facebook messages;
. On or around November 7, 2017 - Chief Sherrard was advised that Shaw would not be facing any criminal charges for official misconduct, i.e., improper use of NCIC, based upon the investigation by the Louisville Metro Police Department's Public Integrity Unit for (ongoing between the September 1, 2017, suspension and Chief Sherrard's initiation of the administrative investigation) ;
. November 7, 2017 - Chief Sherrard "made a determination that I would recommend charges for termination of Shaw's employment with [the Department] based upon his Facebook messages; however, prior to charges being drafted and filed" by the Chief, Shaw resigned ( November 20, 2017 ).
In his affidavit Chief Sherrard also emphasized that his "determination to prefer charges against Officer Shaw, although those charges were not ultimately filed due to Shaw's resignation, was based upon his Facebook messages and not the answers and responses that he provided during my sworn interrogation" of him.
Mr. Cole then reiterated that Shaw's recorded statement from the KRS 15.520 interrogation was exempt from disclosure. He further noted that Ms. Martinez's assertion that Chief Sherrard's position was not credible "is mere speculation. Moreover, even a cursory review of Shaw's Facebook posts supports the Chief's determination that it was the Facebook posts that would have resulted in KRS 15.520 charges against Shaw." Mr. Cole emphasized that Chief Sherrard's decision to initiate an administrative investigation of Shaw "was made prior to the KRS 15.520 interview/ interrogation of Shaw." Citing Palmer v. Driggers and City of Louisville v. Courier-Journal , he concluded that because Chief Sherrard determined that Shaw's Facebook posts, not his interrogation answers, would have led him to prefer charges against Shaw if not for his resignation, the Facebook posts were subject to disclosure. Conversely, he maintained that existing legal authority validates the Department's denial of the request for Shaw's recorded interview. Based upon the following, this office affirms the denial.
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. 1 See City of Louisville, 637 S.W.2d at 658-660;
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983) (recognizing that records defined under KRS 61.878(1)(i) and (j) "which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records" but unless "so adopted and made a part of the [agency's] final action, such documents shall remain excluded under" KRS 61.878(1)(i) and (j));
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992)(ratifying 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"). 2
Guided by this evolving body of case law, the Attorney General has long recognized that public records which are of a preliminary nature forfeit having exempt status only upon being adopted by the agency as a basis for its final action. See OAG 83-405 and OAG 89-69; 99-ORD-220; 02-ORD-86; 07-ORD-156; 10-ORD-053; 12-ORD-055; 14-ORD-014; 15-ORD-189. Notably, in Palmer v. Driggers , the newspaper asked for access to "various documents pertaining to possible investigations and disciplinary actions related to" misconduct by Palmer. 60 S.W.3d at 594. Palmer had resigned before discipline could be imposed, arguing that his resignation precluded final action by the City of Owensboro Police Department, and therefore records pertaining to allegations of misconduct leveled against him were permanently excluded from public inspection by KRS 61.878(1)(i) and (j). Incorporating the City of Louisville analysis focusing on the final action of the agency, the Court of Appeals rejected Palmer's argument.
The Court adopted the reasoning found in 00-ORD-107, holding that "the fact that the agency decided to take no further action on the complaint or that the investigation was preempted by [the employee's] resignation, in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint." Id. at 597. See 08-ORD-079 (record on appeal was devoid of evidence that letter in dispute prompted the Superintendent to submit his resignation, or formed the basis of a final decision by the Board of Education to demand that he submit his resignation, and the requested letter thus did not forfeit its preliminary characterization) ; 10-ORD-053 (affirming denial because records in dispute were not adopted, in whole or in part, as the basis of the agency's final action, i.e. , the decision to take no action, and therefore retained preliminary status); 01-ORD-47 (Police Chief's work "in submitting his findings and recommendations to the City Manager, the work of the City Manager in determining whether charges should be preferred, and the work of the Owensboro Board of Commissioners, in determining final disciplinary action per KRS 95.450(6)," was yet to be done and the records therefore retained their preliminary status under City of Louisville "); 10-ORD-075; 12-ORD-055.
Here, as in Palmer v. Driggers , "the decision to take no action against Officer [Shaw] was predicated upon his resignation. " 10-ORD-053, p. 4 (officer's resignation was adopted by the police department" as the basis for its final action, i.e., the decision to take no action, and the investigative records retain their preliminary characterization" ); compare 10-ORD-075 (KSP implicitly adopted the Response to Resistance Report as the basis for its final action, i.e., the decision to take no action/no investigation was necessary, and the Report forfeited its preliminary characterization" ). The record on appeal confirms that Chief Sherrard made the determination to initiate the administrative inquiry based upon the offensive content of Shaw's Facebook posts and prior to his KRS 15.520 interrogation of Shaw. "Although final action was taken here (as defined in Palmer ), i.e. , the decision to take no action following Officer [Shaw]'s resignation . . . the determining factor on the facts presented is whether the [interrogation/ interview was] adopted, in whole or in part, as the basis for the agency's final action. " 12-ORD-055, p. 8. Because the record on appeal is devoid of any evidence to refute the Chief's position that he "did not adopt the [interrogation/ interview] being sought as the basis for any final action, the record[] did not forfeit [its] preliminary characterization. . . . " 12-ORD-055, p. 8; 13-ORD-138. Accordingly, this office affirms the Department's denial of Ms. Martinez's request.
Either party may appeal this decision may appeal 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 KRS 61.878(1)(i) authorizes the withholding of "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]" KRS 61.878(1)(j) authorizes the withholding of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
2 The Kentucky Court of Appeals reaffirmed this line of authority in University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013), holding that e-mails between public employees prior to a scheduled meeting that was being held to discuss a matter still under negotiation qualified for protection under KRS 61.878(1)(i) and (j) as "piecemeal disclosure along the path of the decision making process is not mandatory."