Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Fern Creek Fire Protection District ("District") violated the Open Records Act in its denial of Anthony Schmidt's September 11, 2018, request for copies of "both formal complaints filed by Major Todd Newman and Captain Joe Elstone against Fire Chief Mike Schmidt Jr." and "the official statement of charges." For the reasons that follow, we find no substantive violation of the Act.
On September 13, 2018, the District responded that there existed no formal complaint filed by Major Todd Newman. As to the remaining records, the District asserted that "the requested documents are currently exempted from the Open Records Act pursuant to KRS 61.878(1)(h) [and] (i) and KRS 61.878(3)." The District's response quoted those provisions in full but gave no further explanation.
This office received Mr. Schmidt's appeal on September 18, 2018. While the appeal does not take issue with the nonexistence of a complaint from Major Newman, Mr. Schmidt does challenge the claims of exemption.
KRS 61.880(1) requires that an agency response denying inspection of records give "a brief explanation of how the [cited] exception applies to the record[s] withheld." Merely quoting the statutory language is insufficient to meet this requirement. 11-ORD-084. Rather, a public agency must "provide detailed and particular information." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Since the District did not explain the applicability of the cited exceptions, we find a procedural violation of KRS 61.880(1).
Substantively, however, we find no violation of the Open Records Act. On appeal, the District explained that under KRS 75.130(1) a fire protection district may only take disciplinary action against a member or employee "after charges are preferred and a hearing conducted as provided in this section." (Emphasis added.) In the matter of the complaint and charges against Chief Schmidt, the District stated that a hearing is still pending before the District's board of trustees, and therefore the investigation remains ongoing as there has been no final agency action. Cf. Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001).
KRS 61.878(1)(i) and (j) 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.
Records which are part of an ongoing investigation, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter. ( See 10-ORD-065 and decisions cited therein.)
"[P]iecemeal disclosure along the path of the decision-making process is not mandatory." University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013). Records which are adopted as the basis of final agency action cease to be preliminary 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). Nevertheless, "[n]ot every agency action is final action. " 14-ORD-234.
"[D]isclosure of records pertaining to allegations of public employee misconduct or discipline is contingent on the finality of any investigation and, if applicable, resulting disciplinary proceedings." 16-ORD-231. For example, we held in 99-ORD-164 that during the pendency of a disciplinary matter of a teacher before a tribunal pursuant to KRS 161.790, agency action is not final. Accord , 16-ORD-238; 17-ORD-108. We attach a copy of 99-ORD-164 and adopt its reasoning in support of our decision on this point. Since we find no pertinent distinction between teacher disciplinary proceedings and a disciplinary proceeding under KRS 75.130, we conclude that the District did not substantively violate 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 61.882. 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 proceedings.