Opinion
Opinion By: Andy BeshearAttorney General;Michelle D. HarrisonAssistant Attorney General
Summary: Frankfort Police Department violated the Open Records Act in denying requests for post-decisional public records. Our in camera review of the memorandum and recording in dispute, conducted pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, did not reveal that either public record is preliminary. However, if the content of either public record does not relate to a specified case that has been resolved, and is therefore not responsive to requests, FPD can properly redact such information per KRS 61.878(4).
Open Records Decision
The question presented in this appeal is whether the Frankfort Police Department ("FPD") violated the Open Records Act in denying the requests made by Steve Stewart, President and Publisher of The State Journal , on June 5 and 8, 2018. This office finds that FPD violated the Act in denying the requests for post-decisional public records because the records related to a concluded prosecution.
Mr. Stewart requested a copy of a "memorandum by [a] Frankfort Police Department Detective written on or about August 28, 2015, regarding the prosecution of Miguel Nunez," and the "audio recording made on or about August 28, 2015, by a Frankfort Police Detective of a conversation or conversations with Commonwealth's Attorney Larry Cleveland and/or Assistant Commonwealth's Attorney Zach Baker regarding final disposition of criminal charges against Miguel Nunez." On June 6, 2018, Major Charles Adams responded on behalf of FPD and stated FPD located a document responsive to Mr. Stewart's request, but denied the request under KRS 61.878(1)(j). He argued the "record is an internal memorandum in which opinions and observations are expressed, but the City of Frankfort has not taken any final action or made any decision based on this memorandum. " City Clerk Chermie Maxwell denied Mr. Stewart's request for the audio recording on June 14, 2018, citing KRS 61.878(1)(i). 1 FPD maintained that the recording is "the equivalent of preliminary notes that took place after resolution of the investigation at issue, but that have not yet been incorporated into any final action on behalf of the City." 2
In his August 6, 2018, letter of appeal, Mr. Stewart objected to FPD's characterization of the records as preliminary. He emphasized, "the prosecution of Miguel Nunez is complete, so there can be no further action contemplated relative to Nunez." Noting the recording is not a draft, note, or memorandum in which opinions are expressed or policies are formulated, Mr. Stewart stated, "It presumably documents a conversation concerning an Assistant [Commonwealth's Attorney's] decision and the appropriate penalties in a particular case and factors bearing on that decision. The report is a factual recitation of events and conversations concerning the prosecution POST PROSECUTION, that is, POST DECISIONAL, NOT PREDECISIONAL." 3 This undisputed fact is ultimately dispositive on the facts presented.
City Solicitor Laura Milam Ross responded to Mr. Stewart's appeal on behalf of FPD. Ms. Ross stated that a FPD Detective reviewed the concluded criminal case of Miguel Nunez. She noted that a final disposition of the case occurred on July 13, 2015. The Detective reviewed the case and discussed its outcome with the Comonwealth's Attorney's Office. "[O]f his own accord," the Detective recorded the in-person conversation. Following these conversations, the Detective "filed an internal report to document the content of the conversations, and his observations and opinions regarding both the outcome of the Nunez case and the conversations themselves." Ms. Ross stated that both the report and the audio recording were "filed internally with the Police Department, but to date no action of any sort has been taken regarding the report of the recording. " 4
Ms. Ross attached a copy of e-mail correspondence between Mr. Stewart and Clerk Maxwell, on which Ms. Ross and Major Adams were copied. In his June 7, 2018, e-mail to Clerk Maxwell, Mr. Stewart stated, "news coverage is forthcoming - with or without release of this document - that, in my estimation from decades of work in journalism, could be far-reaching in its impact on the local public's trust in the criminal justice system." He proposed a compromise of having FPD "redact language in the memo that was determined to be 'opinion' and otherwise release it. Of note, 'observations' are not exempt from disclosure under KRS 61.878." He reiterated that any such memo "would have been written long after the PD's investigation of Mr. Nunez and even after final adjudication of the criminal charges against him, thus not preliminary in any sense." Mr. Stewart stated that if the memorandum dealt with any FPD policy formulation or contained any recommendations, those could be legitimately redacted.
Citing 05-ORD-017, Ms. Ross first argued that "observations" may be properly withheld under KRS 61.878(1)(j). She acknowledged that Mr. Stewart was correct in asserting the memorandum was written after final adjudication and could not have been used in final action by FPD in the case, but asserted the memorandum remained preliminary unless and until FPD incorporates it or adopts it as the basis of a final action or decision. Ms. Ross claimed the withheld records did not lose their preliminary status because the Detective created them so FPD would have a record if any issues regarding the conversations occurred in the future, not because of the criminal case that was concluded before the conversations.
Ms. Ross noted that, as of Mr. Stewart's June 7, 2018, e-mail, FPD "was on notice that a State Journal investigation somehow related to the Nunez case and the Commonwealth's Attorney's Office was in progress." She stated that, "the story -and any potential legal action or other investigation that migh t occur related to it-does not yet exist," but the requested records " could become important to future final action by the [FPD], whether due to its own investigation or in conjunction with action instituted by another agency or entity. " (Emphasis added.)
The decisions upon which FPD relied, 00-ORD-89 and 04-ORD-196, are factually distinguishable. In each instance, the agency created the records in dispute as part of an identifiable review process, specific and ongoing investigation or action (whether administrative or criminal), policymaking function, etc . Here, the records are indisputably post-decisional ones that may or may not potentially be utilized as part of a hypothetical investigation or action at some point in the future by FPD or some other agency. Having reviewed the subject memorandum/ report and recording, per KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, this office concludes, given the vague context provided, that FPD has not satisfied its burden of justifying the denial of Mr. Stewart's requests. See KRS 61.880(1); KRS 61.880(2)(c).
This office has long recognized that KRS 61.878(1)(i) and (j) are intended to ensure "the integrity of an agency's decision-making process by protecting its pre-decisional documents. OAG 91-108." (Emphasis added.) 11-ORD-009, p. 3. Over 20 years ago, the Office of the Attorney General recognized that, when interpreting the federal analogue to KRS 61.878(1)(j) (then KRS 61.878(1)(i)), which is codified at 5 U.S.C.'552(b)(5) of the Freedom of Information Act ("FOIA"), the federal judiciary has:
. . . clearly distinguished between "predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and post-decisional memoranda setting forth the reasons for an agency decision already made, which are not ." Renegotiation Board v. Grumman Aircraft Engineering Corporation, 421 U.S. 168, 44 L. Ed. 2d 57, 95 S. Ct. 1491 (1975). In order to fall within the "deliberative process" exception, a document must be antecedent to adoption of agency policy and must be related to the process by which policies are formulated. Deliberative or advisory material which is intended to explain a decision or policy already adopted is not within the purview of 5 U.S.C.'552(b)(5).
The underlying purpose of both the state and federal exceptions to public disclosure is to permit agency decision makers to receive the benefit of frank and uninhibited discussion of policy matters by agency staff by protecting their advi[c]e and opinions from public scrutiny. Consistent with the principle that predecisional documents incorporated into final agency action forfeit their preliminary status and are subject to inspection, we believe that a postdecisional document setting forth the reasons for the agency's decision cannot be deemed preliminary within the meaning of KRS 61.878(1)[(j)] .
94-ORD-108, p. 7 (holding that University of Kentucky violated the Act in declining to provide an unredacted copy of the post-decisional notification of the Chancellor to the Dean regarding a promotion, which reported the President's decision and the reasoning and events behind the decision)(emphasis added). Compare 93-ORD-82 (distinguishing 94-ORD-108 in affirming denial by agency of request for memorandum that was prepared to assist Executive Director in reaching a decision rather than to explain a decision that was already incorporated or adopted). This reasoning applies with equal force to both KRS 61.878(1)(i) and 61.878(1)(j) and the instant appeal presents no basis to depart from this reasoning.
Mr. Stewart requested a memorandum regarding the prosecution of Mr. Nunez and the recording of the conversation documented in that memorandum regarding final disposition of criminal charges against Mr. Nunez. The undisputed facts establish that both of the records in dispute were created after the final adjudication of the Nunez investigation. Accordingly, the records are post-decisional and their content, insofar as it relates to prosecution of Mr. Nunez or the final disposition of his case, is not properly characterized as "preliminary." FPD also failed to demonstrate to what action the remainder of the content is preliminary as required to apply KRS 61.878(1)(i) and (j).
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j) in a variety of contexts, but the relevant analysis has remained consistent. See City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982); Ky. State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983)(records defined at subsections (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 those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded"); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992); Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6 (Ky. App. 1995); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013); 99-ORD-220; 02-ORD-86; 07-ORD-156; 11-ORD-052; 15-ORD-189. Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69. A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034, p. 11 (quoting City of Louisville v. Courier-Journal and Louisville Times Co . at 660); 16-ORD-256.
Our holding today does not depart from this otherwise controlling line of authority. Here, FPD speculates that if or when The State Journal , which is not a public agency under KRS 61.870(1), publishes a newspaper article documenting the results of its ongoing investigation, which is "somehow related to the Nunez case and the Commonwealth's Attorney's Office," that article could result in a future investigation or action by FPD or a different unspecified public agency or "entity. " Then, FPD argues, the records in dispute (created three years ago) could possibly become important. 5 The instant appeal is distinguishable in this critical respect: In each of the aforementioned cases, there was an identifiable administrative review process or adjudication, ongoing investigation or action, or a concluded one, policymaking function, etc. relative to which records being sought were preliminary. The agencies either did or did not adopt records being sought, in contrast to a hypothetical scenario implicating a remote possibility of a future investigation or action by FPD or some unspecified agency or entity.
This office is prohibited from disclosing the contents of the memorandum and recording. See KRS 61.880(2)(c) and 40 KAR 1:030 Section 3. However, it was not facially apparent from our in camera review to what action by any public agency either the memorandum/ report or the recording are preliminary. However, FPD may redact any mention or discussion of peripheral subjects, broader issues, and other individuals also found in the memorandum or the recording that is not responsive to either of the requests per KRS 61.878(4); but cannot withhold either of the public records in their entirety for that reason.
A party aggrieved by this decision shall 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 proceeding.
Andy Beshear
Attorney General
Michelle D. Harrison
Assistant Attorney General
#330
Distributed to:Steve StewartTravis EllisChermie MaxwellLaura Milam Ross
Footnotes
Footnotes
1 Among the public records that may be excluded from public inspection in the absence of a court order authorizing inspection are those 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
2 In construing the language of KRS 61.878(1)(i) specifically, this office has consistently recognized that a "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 97-ORD-183, p. 4; 09-ORD-041. A "note," on the other hand, is defined as a "brief record, esp. one written down to aid the memory." Id . at 951; 97-ORD-183, p. 4; 09-ORD-041. Insofar as it extends protection to "correspondence with private individuals," KRS 61.878(1)(i) is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." 00-ORD-168, p. 2. If a record cannot be properly characterized as either a draft, a note, or such correspondence, "the question of whether final action has been taken by the agency becomes irrelevant." 99-ORD-220, p. 7.
3 See 16-ORD-168.
4 Public record" is defined as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). Accordingly, the memorandum and recording are "public records" whether the Detective created them of his own accord or not.
5 FPD attempted to justify its denial, "[p]articularly in light of the forthcoming State Journal article predicted to have major impact on the criminal justice system[.]"