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 Louisville Metro Police Department ("LMPD") violated the Open Records Act in partially denying Courier-Journal Staff Writer Andrew Wolfson's August 14, 2019, request for "copies of transcripts of interviews conducted with Sgt. Corey Robinson, Sgt. Rob Owen, Lt. Jill Hume, Lt. Harry Webster and Lt. Phil Russell" in Case Number 17-269, as well as the recommendation made by Major Frank Hardison. 1
In a timely response per KRS 61.880(1), Records Custodian Alicia Smiley denied Mr. Wolfson's request for transcripts of the specified interview transcipts pursuant to KRS 61.878(1)(i) and (j) "as these records are preliminary in nature." However, she attached "Major Hardison's recommendations in the Phil Russell [Professional Standards Unit ("PSU")] investigation along with noted portions of officer transcripts." 2
By letter dated September 16, 2019, Jon L. Fleischaker, who represents The Courier-Journal , initiated this appeal on behalf of Mr. Wolfson/the Courier , challenging the decision by LMPD to "release a heavily redacted document purporting to contain only such abbreviated portions of the transcripts that were directly cited in Major Hardison's recommendation to the Chief. These abbreviated portions are each presented without any context." Mr. Fleischaker argued, "LMPD has attempted to justify its refusal to provide the full interview transcripts by insisting that, because Chief Conrad ultimately adopted Major Hardison's conclusion of 'Not Sustained' rather than Lieutenant Suttles' conclusion of 'Unfounded,' LMPD is, therefore, under no obligation to supply any portion of the interview transcripts" that Major Hardison did not directly cite in his memorandum. He contended that Major Hardison's recommendation and Lt. Suttles' recommendation "reach substantially the same conclusion -- namely, that the complaint against Lieutenant Russell should be dismissed." Mr. Fleischaker further asserted that Chief Conrad's adoption of Major Hardison's recommendation "does not justify LMPD's editing of the interview records to omit all but those lines of text directly cited in Major Hardison's memo[,]" and "the transcripts are nonexempt as a whole and must be disclosed."
Upon receiving notification of Mr. Fleischaker's appeal, Assistant Jefferson County Attorney Annale R. Taylor supplemented the agency's response. Ms. Taylor reiterated, "[I]t is those records Major Hardison relied upon, which were ultimately adopted by Chief Conrad as his final action, that are no longer preliminary." In support of this position, she explained that LMPD Chief Conrad is the final decision maker in relation to PSU investigations. She further noted, "The PSU acts as a fact finder for the Chief and then makes recommendations regarding facts the Chief can then consider if he so chooses. In the subject PSU case, Chief Conrad adopted Major Hardison's recommendation of a Not Sustained finding of an alleged policy violation by Lt. Phil Russell." Ms. Taylor also explained that in Major Hardison's recommendation, he cited to specific lines of witness interview transcripts. Major Hardison concluded that based on the cited portions of the witnesses' sworn statements, there was not a preponderance of the evidence to either prove or disprove Lt. Russell's comments violated LMPD policy and thus, he recommended a finding of Not Sustained. In disputing Mr. Fleischaker's assertion that Lt. Suttles' recommendation and Major Hardison's recommendation "substantially reach the same conclusion," she clarified that a finding of Unfounded "means that the allegation is baseless or false while a finding of Not Sustained means that there is not enough evidence to prove the allegation is true or that the allegation is false. Thus, Chief Conrad's findings do not mirror those of Lt. Suttles."
LMPD maintained that because Chief Conrad, as the final decision maker, was not required to consider the entire interviews of the witnesses, and he determined that only portions of the witness interviews were relevant, only those portions of the interview transcripts forfeited their preliminary status. Having reviewed a complete and unredacted copy of the requested interview transcripts in camera under KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, and the October 25, 2019, affidavit of Chief Conrad that LMPD ultimately provided, this office affirms the agency's ultimate disposition of the request.
Among those records excluded from disclosure, in the absence of a court order authorizing inspection, are those identified at KRS 61.878(1)(i) and (j). 3
Beckham v. Board of Educ. of Jefferson Cty. , 873 S.W.2d 575, 577-578 (Ky. 1994);
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) in a variety of contexts, but little has changed regarding the relevant analysis. See
City of Louisville v. Courier-Journal and Louisville Times Co. 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co. , 663 S.W.2d 953 (Ky. App. 1983);
Univ. of Ky. v. Courier-Journal & Louisville Times Co. , 830 S.W.2d at 378;
Palmer v. Driggers , 60 S.W.3d 591 (Ky. App. 2001);
Univ. of Louisville v. Sharp , 416 S.W.3d 313, 315 (Ky. 2013); 99-ORD-220; 11-ORD-052; 15-ORD-189; 16-ORD-167; 18-ORD-131; 19-ORD-063. 4
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 , 637 S.W.2d at 660). "It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action. 16-ORD-256, p. 4. "In our view, the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83, p. 14 (citing City of Louisville, supra ); 19-ORD-192. Thus, "'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.'" 515-ORD-067, p. 3 (citing 11-ORD-052); 18-ORD-131. "In other words, 'the fact that none of the [records] were expressly incorporated into the final report does not end the inquiry.' [Citation omitted.] 'When the decision mirrors those findings and recommendations . . . it must logically be inferred that they were adopted as the basis of that decision, particularly when there is no persuasive proof in the record to overcome this inference.'" 01-ORD-123, p. 6; 15-ORD-067, p. 3 (citing 14-ORD-181); 16-ORD-106; 17-ORD-156; 18-ORD-131.
The Kentucky Court of Appeals reaffirmed this controlling line of authority in
Univ. of Ky. v. Lexington H-L Services, Inc. , 579 S.W.3d 858 (Ky. App. 2018). In rejecting the agency's position that certain documents retained their preliminary status merely because it never "incorporated" the documents into a final action, the court held the Act "does not require that an agency reference or incorporate specific documents in order for those records to be adopted into the final agency action. Rather, we agree with the Attorney General that preliminary records which form the basis for the agency's final action are subject to disclosure."
Univ. of Ky. v. Lexington H-L Services, Inc. , 579 S.W.3d 858 at 863. Our holding today is not a departure from this controlling authority. Rather, in this instance, "persuasive proof" exists in the record -- namely, Chief Conrad's affidavit, which Ms. Taylor enclosed with her supplemental response on behalf of LMPD. See 10-ORD-034.
Chief Conrad confirmed that he reviewed Lt. Suttles' Preliminary Findings and Conclusions Memorandum and Major Hardison's Review Memorandum. In considering the alleged violation of LMPD Standard Operating Procedure 5.1.20 Prejudice, Chief Conrad "decided to adopt Major Frank Hardison's recommendation of a finding of Not Sustained[.]" He further attested that he "disagreed with Lt. Suttles' recommended finding of Unfounded for a violation of the Prejudice SOP." A finding of Not Sustained, he stated, "means that there is not enough evidence to either prove or disprove the allegations. A finding of Unfounded means the allegation is baseless or false." According to Chief Conrad, "Major Hardison's Review Memorandum contained sufficient information from the interviews conducted and supported his recommendation of Not Sustained." Significantly, Chief Conrad stated, "I adopted his recommendation in my final action to issue a Not Sustained finding for a violation of Prejudice to Lt. Phil Russell without reviewing the interview transcripts contained within the investigative file ." (Emphasis added).
The cited authorities validate LMPD's withholding "of the opinions and recommendations . . . that were not relied upon by the final decision maker, i.e. , the [Chief]." 18-ORD-001, p. 6; 19-ORD-192. Chief Conrad unequivocally stated that he did not review the requested interview transcripts in reaching a determination, but instead relied exclusively on the recommendation of Major Hardison, who, in turn, found only limited excerpts of those records persuasive. It logically follows that Chief Conrad did not rely upon or adopt, expressly or implicitly, those portions of the interviews that LMPD withheld. This office is not in a position to question the sufficiency of Major Hardison's Memorandum or substitute its judgment for that of the final decision maker; the record lacks any evidence to refute Chief Conrad's affidavit. See 18-ORD-056 (record was lacking in terms of any basis to question the veracity of the agency or conclusively refute the affidavit it ultimately provided); 12-ORD-008; 16-ORD-255; 18-ORD-131. LMPD did not violate the Act in withholding responsive interview transcripts, or portions thereof, which did not form the basis of its final action, pursuant to 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 On January 8, 2018, Mr. Wolfson asked LMPD for "any records that would show a complaint (or complaints) against Lt. Phil Russell in December 2017 and the results of any PSU investigation of that complaint (or complaints)" in addition to "any records that reflect the details of the investigation[.]" LMPD initially disclosed a limited number of records on August 8, 2019, confirming that: Lieutenant Russell was investigated; that several LMPD officers were interviewed; and, that Chief Steve Conrad ultimately determined allegations made against Lt. Russell were "Not Sustained." However, LMPD withheld "Lieutenant Findings, Memos, and officer interviews" pursuant to KRS 61.878(1)(j), stating that all such records were "preliminary in nature" and did "not give notice of a final action[.]" LMPD supplemented its response by providing additional records upon receipt of the August 9, 2019, e-mail from counsel for the Courier advising that existing case law and prior decisions by the Attorney General have long recognized that "materials relied upon by the Chief in making his final determination are subject to disclosure whether expressly cited in his decision or not[.]"
2 Assistant Jefferson County Attorney Annale R. Taylor acknowledged on appeal that initially LMPD "erroneously asserted that Chief Conrad relied on Lt. Suttles' recommendation in making the final decision and thus, provided the Courier-Journal with a copy of Lt. Suttles' memorandum making the recommendation." At that point, Mr. Wolfson requested the interview transcripts of the above-named individuals. Ms. Taylor further stated that on August 19, LMPD "erroneously stated again that Chief Conrad adopted Lt. Harry Suttles' recommendation of Unfounded as opposed to Major Hardison's recommendation of Not Sustained and relied upon Lt. Suttles' documentation in reaching a final decision."
Mr. Wolfson subsequently noted that Chief Conrad's final decision reflects a finding of Not Sustained. LMPD apologized for the mistake and clarified that Chief Conrad adopted Major Hardison's recommendation of Not Sustained. However, LMPD neglected to clarify "that it was not Lt. Suttles' documentation Chief Conrad relied upon in determining the allegation was Not Sustained, but rather Major Hardison's documentation." In her August 19 e-mail to Mr. Wolfson, Ms. Smiley explained that she read her notes backward. Notwithstanding the resulting confusion, the record contains no evidence that LMPD acted in bad faith and further discussion of this error is unnecessary as the record further confirms that Chief Conrad relied upon Major Hardison's recommendation.
3 KRS 61.878(1)(i) and (j), respectively, exclude from disclosure:
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.
4 Significantly, in 02-ORD-018 this office held that witness statements and investigative summaries fell within the parameters of KRS 61.878(1)(i) and (j). The Attorney General observed that the "proper standard for determining when a record within an investigative forfeits its preliminary character is found at page 659 of City of Louisville ," supra , wherein the Court held that if the Chief (or final decision maker) adopts the notes or recommendations that comprise the "Internal Affairs" report(s) "as part of his final action, clearly the preliminary characterization is lost to that extent." 02-ORD-018, pp. 5-6. See 10-ORD-046; (adopting 02-ORD-018); 12-ORD-055.
5 In 15-ORD-067, the Attorney General determined that a 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 (adopting the reasoning of 15-ORD-067). See 97-ORD-168, pp. 5-6 (citing 93-ORD-103); 18-ORD-131; 19-ORD-063. Compare 01-ORD-47; 01-ORD-83.