2020 GPT Summarized & Extracted AG Opinions

These are the results of an experiment using OpenAI's GPT3.5-turbo model to extract summaries and citation treatment information from open records decisions. Prompts were prepared using this notebook. These outputs are raw from the AI model, have not been fully vetted, and should not be relied upon in any way.

Please note that the "O" treatments were meant as "Other" citations, but Amye pointed out that to an attorney this looks like a glaring "Overruled". I'll but updating this in the future: but this is the Key I gave the model for its output:

F - Followed, When the decision follows reasoning from the citation;

M - Modified, When the decision modified the cited previous decision;

W - Withdrawn, When the decision withdraws the cited previous decision;

R - Reversed, When the decision reverses the cited previous decision;

O - Other, When the decision cites a previous decision without necessarily being directly supportive of the current dispute; or

N - Not found, When the citation is not found in the decision text.

20-ORD-001

LLM Generated Data

Appellant: Appellant

Agency: WKU

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

WKU did not violate the Act in withholding student education records under FERPA and KFERPA, as the records were properly classified as education records and could not be redacted to protect student identities. Additionally, WKU did not violate the Act by withholding Athletic Department records. The agency met its burden of proof regarding the nonexistence of records relating to certain individuals. While WKU was correct in withholding records subject to FERPA, the response was not considered adequate as it lacked detailed explanations. The decision emphasizes the importance of agencies providing detailed justifications for withholding records under FERPA and complying with the Act's requirements. The appellant may appeal the decision in the appropriate circuit court.

Cited Opinions

18-ORD-168: O

This decision discusses the application of FERPA and KFERPA in withholding student education records.
07-ORD-190: O

The decision addresses the burden of proof regarding the nonexistence of records and the agency's obligation to conduct a good faith search.
06-ORD-040: O

This decision discusses the agency's obligation to offer some explanation for the nonexistence of records in dispute.
11-ORD-091: O

The decision clarifies that a public agency cannot provide access to a nonexistent record or that which it does not possess.
10-ORD-230: O

This decision emphasizes the importance of a good faith search and reasonable effort to identify and locate requested records.
01-ORD-38: O

The decision discusses the Act's regulation of access to records that are prepared, owned, used, in the possession of, or retained by a public agency.
04-ORD-075: O

This decision addresses the burden of proof regarding the nonexistence of records.
12-ORD-231: O

The decision emphasizes the agency's obligation to conduct a good faith search and expend reasonable effort to identify and locate requested records.
95-ORD-96: O

This decision discusses the burden of proof regarding the nonexistence of records and the agency's obligation to offer some explanation for the nonexistence of the records in dispute.

Source Opinion

Opinion

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General

Open Records Decision

On October 11, 2019, Appellant requested from WKU, "[a]ny records or correspondance [sic] from WKU athletics, Title IX Office, Office of Student Conduct or WKU police, with any reference to Marlon Hunter or Chris McNeal or Frederick Edmond or Ray Harper or any combination of the previously mentioned names, between April 6, 2015 and April 6, 2016."

On October 16, 2019, WKU denied the request. WKU identified the staff of WKU athletics, the Title IX Office, Office of Student Conduct and WKU police that searched for responsive records. WKU stated that the offices did not possess any records referencing Ray Harper. Regarding Marlon Hunter, Chris McNeal, and Frederick Edmond, WKU withheld those records under the Family Educational Rights and Privacy Act of 1974 ("FERPA") and the Kentucky Family Educational Rights and Privacy Act ("KFERPA"). WKU stated, "[a]ll records in the possession of the offices identified in the request were created during the time period when the three individual students were enrolled as students of the University." WKU also denied the request because the records were "preliminary," under KRS 61.878(1)(i) and (j), and under the "personal privacy and federal law exemptions to the [Act] in KRS 61.878(1)(a) and (k)." WKU failed to identify the records it was withholding under KRS 61.878(1)(i) and (j) or explain how those exceptions applied to each category of record withheld. However, WKU's position that FERPA and KFERPA prevented the disclosure of education records was sufficient to overcome the inadequacy of its response 1in citing KRS 61.878(1)(i) and (j).

On October 22, 2019, Appellant appealed the disposition of the request to this Office, and WKU responded on October 29, 2019. This Office requested copies of the responsive records for purpose of in camera review, under KRS 61.880(2)(c) 2and 40 KAR 1:030, Section 3. 3This Office also asked that WKU identify the records and provide a brief explanation of how the asserted exceptions applied to the records withheld. See KRS 61.880(1).

On November 13, 2019, WKU provided 500 pages of records for purposes of in camera review, and verified that the records comprise all existing records in its possession. WKU identified the records as 82 pages of Athletics Department records and 418 pages of Title IX Office and Office of Student Conduct disciplinary records, and explained how FERPA and KFERPA applied to each category. WKU stated that its police department did not possess responsive records, because no criminal charges had been filed with that agency.

WKU's Records are "Education Records" as Defined in FERPA .

WKU withheld all responsive records relating to Marlon Hunter, Chris McNeal, and Frederick Edmond, asserting FERPA, incorporated into the Act by operation of KRS 61.878(1)(k), 4and its state counterpart KFERPA, incorporated by KRS 61.878(1)(l). 5FERPA regulates access to "education records," which are defined at 20 U.S.C. § 1232g(a)(4)(A) as "those records, files, documents, and other materials which--(i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." 18-ORD-168, p. 4. More specifically, FERPA protects from disclosure "education records (or personally identifiable information contained therein other than directory information...) of students without the written consent of their parents to any individual, agency, or organization[.]" 20 U.S.C. § 1232g(b)(1) (emphasis added).

The term "education records" includes all information, in whatever form, which satisfies the two-part test described above. 18-ORD-168. Therefore, student records, "do not have to be related to academic matters to be 'education records' under FERPA[.]" Id. at 5-6 (quoting

United States v. The Miami Univ. , 91 F. Supp. 2d 1132, 1149 n. 17 (S.D. Ohio 2000)). Accordingly, the academic records, athletic records, and disciplinary records at issue in this appeal are "education records" as defined by FERPA.

WKU Did Not Violate the Act in Withholding Student Education Records .

This Office's in camera review revealed there were two separate categories of student education records. The first category related to the specific students. The second category related to general policies and procedures for handling student disciplinary actions. WKU's initial denial stated the records custodian "examined the records and determined the documents constitute student education records, including records of student discipline, which are excluded from public inspection by operation of the [FERPA], 20 USC § 1232g, which is incorporated into the Open Records Act by KRS 61.878(1)(k). . . ." FERPA also prohibits the release of "education records" where the "personally identifiable information" therein, "alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty." See 34 C.F.R. § 99.3(f). Based on this Office's in camera review, the documents could not have been redacted in a manner that protected the identity of the students. Therefore, WKU properly withheld the student education records requested.

Regarding the policies and procedures, WKU's response must also be viewed in light of Appellant's specific request, which read "... with any reference to. . ." specific students. In our review, the policies and procedures did not make any reference to the specific students. FERPA and KFERPA do not apply to such general, non-specific documents. Because these records do not make "any reference to" the identified students, they are nonresponsive to the request.

WKU Did Not Violate the Act by Withholding Athletic Department Records .

WKU did not violate the Act when it withheld the 82 pages of WKU Athletics responsive records in their entirety. In a generic sense, the documents this Office reviewed in camera could have the "personally identifiable information" easily redacted. See 34 CFR § 99.31(16)(b)(1). "Although FERPA contains no redaction provision, neither does it prohibit such."

Unincorporated Operating Div. of Indiana Newspapers, Inc., v. Trustees of Indiana Univ. , 787 N.E.2d 893, 908 (Ind. Ct. App. 2003). Courts have found that records with the personally identifiable information of a student removed are no longer "education records" subject to exemption under FERPA. Id. at 907-8;

United States v. Miami University , 294 F.3d 797, 811 (6th Cir. 2002); Hardin Cty. Sch. , 40 S.W.3d at 869. As such, in some circumstances, student records can be redacted and released upon request without violating FERPA.

However, "personally identifiable information" may be redacted and the record may be released only if "the educational agency . . . has made a reasonable determination that a student's identity is not personally identifiable." Id. In Miami University , the college newspaper generally requested all disciplinary records held by the University Disciplinary Board covering a two-year period. Id. at 803. The Court found that the requested records could be released provided personally identifiable information was redacted. Id. at 811. However, in this case, Appellant has requested the records of specifically identified students, unlike the general request made in Miami University . Even if the names and information of the students were redacted, they would still be linkable to specific students because of the specific nature of Appellant's request. See 34 C.F.R. § 99.3(f). Therefore, WKU properly withheld the Athletic Department Records.

WKU Met Its Burden of Proof Regarding Nonexistent Records .

Regarding responsive records relating to Ray Harper, this Office finds that WKU's initial response met the agency's burden of proof regarding the nonexistence of responsive records. In addition, WKU met its burden of proof regarding the nonexistence of WKU police records.

The Attorney General has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists in the possession of the agency. See

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-091. The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency." 10-ORD-230; KRS 61.870(2). In order to satisfy the burden of justifying its denial per KRS 61.880(2)(c), however, a public agency must offer some explanation for the nonexistence of the records in dispute at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231. As such, WKU was required to conduct a "good faith" search, and "expend reasonable effort to identify and locate the requested records." See 95-ORD-96, p. 7.

WKU met its burden regarding the nonexistence of records relating to Ray Harper by describing a "good faith" search in the initial response, but WKU was unclear whether the WKU police possessed any responsive records. On appeal, WKU stated that the WKU police reported receiving no criminal charges relating to the student disciplinary cases, demonstrating that the agency conducted a "good faith" search. See 95-ORD-96. Accordingly, this Office finds that WKU ultimately met its burden of proof regarding the nonexistence of records.

Conclusion

While WKU was correct in withholding certain records subject to FERPA, this Office will not accept an agency's blanket denial under FERPA as an adequate response. To comply with the Act as it incorporates FERPA, educational agencies must describe, in detail, the categories of student records they possess. Further, they must explain why and how FERPA applies to those categories of documents, and why redaction of personally identifiable information would inadequately protect the identity of the student. As well, they must acknowledge whether a student has signed a FERPA waiver and whether the conditions of that waiver apply in the context of a specific request. For those requesting records from educational institutions, the language used in a request is crucial for determining whether an agency adequately complied.

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.

Footnotes

Footnotes

1 WKU's initial response to the Appellant merely listed the exceptions it relied upon without explaining to Appellant how they applied. This initial response was insufficient. However, WKU supplemented its initial response on appeal and therefore corrected the issue.

2 KRS 61.880(2)(c) states, in relevant part: "The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."

3 40 KAR 1:030, Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."

4 KRS 61.878(1)( k) exempts, "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation[.]"

5 KRS 61.878(1)(l) exempts, "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"

20-ORD-002

LLM Generated Data

Appellant: Kathleen McIntosh

Agency: KSP

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Kentucky State Police (KSP) did not violate the Open Records Act in denying Kathleen McIntosh's request for certain records related to an ongoing investigation. The decision to deny the request was affirmed based on the ongoing nature of the investigation and the potential harm that premature release of records could cause. The denial was also supported by the fact that certain requested records did not exist. The decision found that KSP provided specific reasons for withholding the records and affirmed the denial based on legal authority and statutory provisions. The denial was deemed appropriate and in compliance with the law.

Cited Opinions

17-ORD-121: F

This decision affirms the denial of the request based on the ongoing nature of the investigation and the potential harm that premature release of records could cause.
05-ORD-246: F

Cited to validate the agency's redaction of personal information of private citizens based on KRS 61.878(1)(a).
07-ORD-095: F

Referred to in the decision to support the denial of the request for nonexistent records.
09-ORD-030: F

Referred to in the decision to support the denial of the request for nonexistent records.
19-ORD-025: F

Referred to in the decision to support the denial of the request for nonexistent records.
04-ORD-041: O

Cited to explain that investigative reports are usually withheld to protect sources of information and prevent premature disclosure of contents to targets of investigation.
14-ORD-154: O

This decision establishes that records are exempt from disclosure until there is no prospective law enforcement action, as long as the agency specifies the action.
14-ORD-228: O

This decision affirms the withholding of investigative records based on an active investigation and pending prosecution.
15-ORD-077: F

Referred to in the decision to support the denial of the request for nonexistent records.
16-ORD-087: F

Referred to in the decision to support the denial of the request for nonexistent records.
16-ORD-246: F

Referred to in the decision to support the denial of the request for nonexistent records.
18-ORD-035: F

Referred to in the decision to support the denial of the request for nonexistent records.

Source Opinion

Opinion

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether KSP violated the Act in denying Kathleen McIntosh's ("Appellant") November 14, 2019, request for "any and all copies of [KSP] report number 13-19-0678 and any uniform citations issued for the same report." By letter dated November 25, 2019, the Official Custodian of Records responded on behalf of KSP. She asserted that such records are "part of an investigation that is still open; accordingly, your request is denied pursuant to KRS 17.150(2)(d) and 61.878(1)(h), (l)." KSP further stated that "[p]remature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events." Citing prior decisions by this Office, including 17-ORD-121, Appellant initiated this appeal by letter dated December 4, 2019.

KSP responded and first reiterated its position that any responsive documents "are part of an open investigation, as prosecution has not been declined or completed." However, KSP enclosed a copy of the "initial KYIBRS 1report, before the narrative portion begins[.]" 2KSP identified Trooper Joshua Collett as the investigating officer and confirmed that "he is still actively investigating the case as he is awaiting receipt of relevant lab results. Due to the case being actively investigated, prosecution has not been declined and any of the requested records may become evidence in a criminal trial." KSP argued that release of the records in dispute "would also harm the investigation by tipping off potential witnesses or defendants that may be unaware they are a subject of the investigation by revealing information that may influence their statements or testimony." With regard to any uniform citations, KSP denied the request "as there are no responsive records in KSP's possession." Citing a number of prior decisions by this Office, KSP maintained that a public agency cannot provide a requester with nonexistent records.

In support of its denial, KSP provided the December 20, 2019, affidavit of Trooper Collett. He reiterated that "[r]elease of any records at this time related to case 13-19-0678 could result in prejudice to witnesses and result in bias to a potential jury pool." Trooper Collett further attested that, as of that date, KSP had not issued any citations relating to Case No. 13-19-0678.

On appeal, KSP argued that "contacting the investigating officer satisfies the standard [to make a good faith effort] required as a search of that type can reasonably be expected" to enable KSP to identify and locate any existing responsive documents. Relying on

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005), and prior decisions by this Office, KSP noted this Office has consistently affirmed public agency denials of requests based upon the nonexistence of responsive public records in the absence of a prima facie showing that certain records existed in the possession of the agency. Consistent with existing legal authority construing KRS 17.150, incorporated into the Act by operation of KRS 61.878(1)(l), this Office affirms KSP's denial of the request.

Unless exempted by other provisions of the Act, public records "shall be open after enforcement action is completed or a decision is made to take no action." KRS 61.878(1)(h). Similarly, KRS 17.150(2) provides that "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." 3In comparing these two statutory provisions, the Attorney General has observed that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2 (citing Privacy: Personal Data and the Law , National Association of Attorneys General (1976)). This Office later determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2; 07-ORD-095; 09-ORD-030; 19-ORD-025. When viewed jointly, these provisions mean that only those investigative files "pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him" are subject to public inspection. 04-ORD-041, p. 4 (citation omitted). Neither has occurred here.

In 14-ORD-154, a decision dispositive of this appeal, this Office was asked to determine whether the Lakeside Park-Crestview Hills Police Authority violated the Act in denying an attorney's request for investigative records pertaining to his client in the context of a motion to set aside a conviction. The Attorney General found that denial was appropriate under KRS 17.150, reasoning as follows:

While evidence of a prospective action is insufficient to demonstrate harm under the Ft. Thomas case, that case did not address KRS 17.150. Rather, Ft. Thomas addressed the explicit showing of harm requirement in KRS 61.878(l). As KRS 17.150 does not include such a showing of harm, the canon of statutory interpretation known as the plain meaning rule requires the statute be read without a harm element. [Internal citation omitted.] Accordingly, KRS 17.150 does not require the agency to demonstrate a showing of harm. It merely requires the agency to provide a specific reason for withholding the records. KRS 17.150, therefore, makes the records at issue exempt from disclosure until there is no prospective law enforcement action, so long as the agency specifies what that action is or could be.

14-ORD-154, pp. 4-5. The Attorney General also explained, "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity." 14-ORD-154, p. 3. Moreover, the exemptions codified at KRS 17.150(2) "shall not be used by the custodian of records to delay or impede the exercise of rights granted by this section." KRS 17.150(3).

Likewise, in 14-ORD-228, at p. 4, this Office determined that KSP properly withheld responsive investigative records where it specified that the records were part of "an active, open investigation," and that "prosecution has not been declined." See 15-ORD-077; 16-ORD-087; 16-ORD-246; 18-ORD-035. KSP has stated as much in this case. Because KSP's denial pursuant to KRS 17.150(2)(d) was appropriate, this Office makes no finding relative to KRS 61.878(1)(h). Here, as in 14-ORD-223, "the records in question may become evidence in a criminal trial." Id. , p. 3; 15-ORD-105. Thus, KSP provided "a 'specific reason' for withholding the records, and [its final response] was therefore sufficient under ... KRS 17.150[.]" 16-ORD-199, p. 5; 16-ORD-244; 16-ORD-275; 18-ORD-035. Accordingly, this appeal presents no basis to depart from the foregoing line of authority. This Office affirms the denial by KSP. See 17-ORD-144.

This Office also affirms KSP's denial of "any uniform citations" connected to the KYBRIS report. KSP cannot produce nonexistent citations, nor is the agency expected to "prove a negative" in order to refute a claim that certain records exist under the rule announced in

Bowling v. Lexington-Fayette Urban Cnty Gov't , 172 S.W.3d 333 (Ky. 2005). See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091. But see,

Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 11-ORD-074 (recognizing that the "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable").

Although the intent of the Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, 4the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). In other words, the Act only applies to records that already exist, and which are in the possession or control of the public agency to which the request is directed. See 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 00-ORD-120; 17-ORD-036. When, as in this case, a public agency denies that any responsive documents exist in the agency's possession or control, and the record on appeal supports that position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 17-ORD-215; 18-ORD-057. A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the records exist, but a public agency discharges its duty under the Act when it affirmatively indicates that certain records do not exist, and explains why, as KSP ultimately did here. 04-ORD-205, p. 4; 12-ORD-056; 11-ORD-122; 18-ORD-057. In the absence of any legal authority requiring KSP to create or maintain the requested citations, or any objective proof to refute its position that no such records were created, the Attorney General affirms the denial by KSP in this regard as well.

Finally, this Office notes that KRS 17.150(3) does not permit a public agency to withhold investigation files permanently. Although KSP cannot postpone access to the records in dispute indefinitely by characterizing the investigation as open or active, it has adequately substantiated that characterization here. However, upon completion of the investigation or a determination not to prosecute, any investigative records that are responsive to Appellant's request will be subject to disclosure unless those records are specifically excluded from application of the Act by another statutory exception.

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 Kentucky Incident Based Reporting System.

2 [P]olice incident reports, as opposed to investigative files, are not generally exempt from disclosure.'" 16-ORD-199, p.3; see also 04-ORD-188; 08-ORD-105; 09-ORD-205; 16-ORD-085. Moreover, existing legal authority validates the agency's redaction of personal information such as date of birth, social security number, telephone number, etc. regarding private citizens on the basis of KRS 61.878(1)(a). See Ky. New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 88-89 (Ky. 2013) (rejecting the practice of "blanket denials" of requests made per KRS 61.880(1), but affirming the policy of "categorical redaction" per KRS 61.878(1)(a) of private citizens' personal information, including victims, witnesses, and uncharged suspects, in addition to names of juveniles, from law enforcement records).

3 However, KRS 17.150(2) also provides that "portions of the records may be withheld from inspection if the inspection would disclose" certain categories of information.

4 See KRS 61.8715.

20-OMD-003

LLM Generated Data

Appellant: Appellant

Agency: Spencer County Judge/Executive

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Spencer County Judge/Executive was found to have violated the Open Meetings Act by engaging in a discussion during a closed session of the Spencer County Fiscal Court of business not publicly announced prior to going into closed session. The violations include failing to properly invoke exceptions for closed session discussions and not providing advanced notice to the public in regular session about the topics to be discussed in closed session. The decision states that the complaint is not moot and that the violations were substantiated. The appellant has the right to appeal this decision in the appropriate circuit court.

Cited Opinions

06-OMD-262: O

The decision is cited to establish that a meeting occurs when a quorum of a public agency convenes to discuss public business, and such meetings are open to the public unless one or more exceptions are properly invoked.
13-OMD-144: O

The decision is cited to show that the public agency must provide notice in the regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision authorizing the closed session.

Source Opinion

Opinion

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General

Open Meetings Decision

The question presented in this appeal is whether the Spencer County Judge/Executive ("Judge/Executive") violated the Open Meetings Act ("Act") by engaging in a discussion, during a closed session of the Spencer County Fiscal Court ("Fiscal Court"), of business not publicly announced prior to going into closed session. For the reasons set forth below, this Office finds that the Judge/Executive violated KRS 61.810(1), KRS 61.815(1)(a) and KRS 61.815(1)(d) of the Act.

On November 13, 2019, Appellant submitted an Open Meetings Complaint to Spencer County Attorney Ken Jones ("County Attorney"), stating that the Judge/Executive violated the Act by initiating a discussion about Appellant during a closed session of a Fiscal Court meeting. Appellant also stated that the subject of the dosed session discussion did not fall within any of the open meetings, exceptions provided for in KRS 61.810. Appellant requested as relief that the Judge/Executive, "[c]ease and desist illegal discussion of topics that are not within the legal confounds of executive session... [,]" "apologize to [Appellant] for his remarks and discouraging words... [,]" and "apologize at the next [Fiscal Court] meeting to the public for his illegal activities in violating the [Act]."

On November 21, 2019, the Judge/Executive responded to the Complaint by denying the allegations and refusing to comply with the requested relief. On November 26, 2019, Appellant forwarded the Judge/Executive's response to the County Attorney and requested relief. On December 4, 2019, the County Attorney replied, "I concur that discussions regarding you, in executive session, were improper." The County Attorney provided Appellant a copy of a remedial email he intended to send each Fiscal Court member to address closed session discussions, but he stated, that apologies to Appellant and the public "will be difficult to obtain."

On December 22, 2019, Appellant appealed to this Office alleging that the Judge/Executive violated KRS 61.810(1), KRS 61.815(1)(a), and KRS 61.815(1)(d). Appellant stated that the Judge/Executive, "has not met the relief that Complainant has requested[.]" On December 30, 2019, the County Attorney responded to the appeal, stating that the Complaint is now moot. The County Attorney conceded that "[o]ne of the topics proper for discussion in executive session, wandered into a specific discussion of [Appellant]," but stated that the Judge/Executive provided a remedy in the form of the email regarding future compliance with the Act. Regarding Appellant's requested relief, the County Attorney stated, "the Complaint is vague with regard to what specific relief is requested, and...Spencer County has responded to the open meetings complaint, appropriately under the statute."

The Open Meetings Appeal is not Moot .

The Judge/Executive asks that this Office find the Complaint moot because he conceded a violation of the Act and provided remedies to address the issues, but Appellant disputes the adequacy of the remedies. In relevant part, KRS 61.846(3)(a) provides:

"If a public agency agrees to remedy an alleged violation... and the person who submitted the written complaint...believes that the agency's efforts in this regard are inadequate, the person may complain to the Attorney General."

The Act further requires that when an Appellant believes the remedial efforts are inadequate, "the adjudicatory process... shall govern as if the public agency had denied the original complaint." KRS 61.846(3)(c). Accordingly, the Complaint is not moot.

The judge/Executive Violated KRS 61.810(1) .

On appeal, the Judge/Executive conceded that he initiated an impromptu discussion regarding Appellant during a portion of the Fiscal Court meeting conducted in closed session. When a quorum of a public agency convenes to discuss public business, a meeting occurs, and such meetings are open to the public unless one or more of the exceptions codified at KRS 61.810(1) 1is properly invoked. 06-OMD-262; 13-OMD-144. The evidence in the record shows that the discussion regarding Appellant occurred during a session closed to the public, and the Fiscal Court did not properly invoke an exception authorizing this discussion. Accordingly, this Office finds a violation of KRS 61.810(1).

The Judge/Executive Violated KRS 61.815(1)(a) and KRS 61.815(1)(d) .

On appeal, the Judge/Executive conceded that he did not provide advanced notice to the public in regular session that discussions regarding Appellant would occur during the closed session. KRS 61.815(1) provides the notice requirements for closed session discussions of public business, stating:

(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:

(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session; ...and

(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

The express purpose of these, as well as the other provisions of the Act, "is to maximize notice of public meetings and actions ... [t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."

Floyd County Bd. of Educ. v. Ratliff , 955 S.W.2d 921, 923 (Ky. 1997) (citing

E.W. Scripps Co. v. City of Maysville , 790 S.W.2d 450 (Ky. App. 1990)). With specific reference to KRS 61.815, the Supreme Court declared that prior to going into closed session, "the public agency must state the specific exception contained in the statute which it relied upon," and give " specific and complete notification...of any and all topics which are to be discussed during the closed meeting ." Id. at 924 (emphasis added). The evidence in the record shows that the Judge/Executive admittedly failed to give notice in the regular open meeting that Appellant would be part of the business discussed in dosed session, and failed to provide notice of the specific provision of KRS 61.810 authorizing the discussion of Appellant in closed session. Accordingly, this Office finds a violation of KRS 61.815(1)(a) and KRS 61.815(1)(d).

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.

Footnotes

Footnotes

1 KRS 61.810(1) provides: "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following [enumerated exceptions]."

20-OMD-003

LLM Generated Data

Appellant: Appellant

Agency: Spencer County Judge/Executive

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Spencer County Judge/Executive was found to have violated the Open Meetings Act by engaging in a discussion during a closed session of the Spencer County Fiscal Court of business not publicly announced prior to going into closed session. The violations include failing to properly invoke exceptions for closed session discussions and not providing advanced notice to the public about the specific topics to be discussed in the closed session. The complaint was deemed not moot, and the Judge/Executive was found to have violated KRS 61.810(1), KRS 61.815(1)(a), and KRS 61.815(1)(d) of the Act. A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court.

Cited Opinions

06-OMD-262: O

The decision is cited as a reference for the violation of KRS 61.810(1) regarding closed sessions of public agencies.
13-OMD-144: O

The decision is cited as a reference for the violation of KRS 61.815(1)(a) and KRS 61.815(1)(d) regarding notice requirements for closed session discussions of public business.

Source Opinion

Opinion

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General

Open Meetings Decision

The Open Meetings Appeal is not Moot .

The judge/Executive Violated KRS 61.810(1) .

The Judge/Executive Violated KRS 61.815(1)(a) and KRS 61.815(1)(d) .

(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:

(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

Floyd County Bd. of Educ. v. Ratliff , 955 S.W.2d 921, 923 (Ky. 1997) (citing

Footnotes

Footnotes

20-ORD-004

LLM Generated Data

Appellant: Tessa Duvall

Agency: DJJ

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The DJJ was found to have violated the Act by denying to provide the appellant with existing responsive documents in electronic format after making necessary redactions. The decision cited previous rulings that established the obligation of agencies to provide redacted copies of records in electronic form if requested, and to bear the costs of redaction and separation of confidential information. The appellant was not challenging the need for redactions, but rather the DJJ's refusal to make electronic redactions to electronic files, which resulted in unnecessary printing costs for hard copies of records maintained electronically.

Cited Opinions

18-ORD-078: F

The decision in 18-ORD-078 is cited as it resolved a fundamental question regarding the provision of electronic records after necessary redactions. It established that agencies must provide redacted copies of records in electronic form if requested.
06-ORD-148: F

Cited for the requirement that agencies must bear the cost of redaction and must provide redacted copies of records in electronic form if requested.
95-ORD-82: O

Referenced for the duty of a public agency to separate exempted material and make non-exempted material available for examination, bearing the cost of such separation.
08-ORD-183: O

Cited for the duty of agencies to bear the cost of separating confidential from non-confidential information in order to permit inspection, examination, or copying of public information.
03-ORD-004: O

Referenced for the duty of agencies to discharge their obligations under the Open Records Act regardless of the storage system used for records.
98-ORD-33: O

Mentioned in conjunction with other decisions to support the requirement for agencies to bear the costs of redaction and separation of confidential information.
02-ORD-148: F

Cited for the principle that agencies are not required to compile information or create new records to comply with a request, but must provide redacted copies of existing records in electronic form if requested.

Source Opinion

Opinion

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether DJJ violated the Act in the disposition of seven requests made by Courier-Journal reporter Tessa Duvall ("Appellant") between August 2, 2019, and September 16, 2019 - specifically, the question is whether DJJ erred in declining to provide the records in electronic format with electronic redactions. The following is a chronological summary of the requests:

August 2, 2019 (ORR 19-36) 1: Request for "access to or copies, preferably in electronic form ," of "[a]ny database, roll or list of all current and former staff of [DJJ] programs and facilities from FY2016 through present. As applicable, please include name, job title, facility, hire date, last date worked and reason for departure.

August 8, 2019 (ORR 19-39) : Request for "access to or copies, preferably in electronic form ," of "[a]ny report, study, audit or analysis of DJJ facilities conducted between Jan. 1, 2014 and present."

August 13, 2019 (ORR 19-41) : Request for "access to or copies, preferably in electronic form ," of "[a]ny reports or databases that indicate the number of youth in DJJ custody for public offenses in each calendar year since 2014. Please include demographic data, county of charges and charges when applicable." Request for the same records, but for youthful offenses during that period.

August 13, 2019 (ORR 19-42) : Request for "access to or copies, preferably in electronic form ," of "[a]ny master, facilities or capital plans for DJJ between Jan. 1, 2014 and present[.]

August 14, 2019 (ORR 19-43) : Request for "access to or copies, preferably in electronic form ," of "[a]ny policy or directive that provides guidance on transport and intake procedures at DJJ-run detention centers."

August 27, 2019 (ORR 19-44) : Request for "access to or copies, preferably in electronic form ," of "[a]ll DJJ Prison Rape Elimination Act compliance reports, annual reports and statistical reports from 2015 through present" and "weekly DJJ reports, detailing staffing levels and youths [sic] populations[.]

September 16, 2019 (ORR 19-47) : Request for "access to or copies in electronic form of" the "six-year capital plan for 2014-2020 that was finalized in April 2013[.]"

September 19, 2019 (ORR 19-48) : Request for "access to or copies, preferably in electronic form ," of "Open [R]ecords register thus far for 2019" and kill requests to Inspect Public Records (includes responses to those requests) thus far for 2019[.]"

DJJ responded to Appellant's initial ORR 19-36 request on August 7, 2019, but "noted more time was needed to accurately respond." By e-mail dated August 26, 2019, DJJ notified Appellant that it was attaching the agency's final response to ORR 19-36, consisting of a cover letter and ten pages of responsive documents. Appellant confirmed receipt and inquired as to whether the "database is an excel file, word doc, etc." Having received no response to her inquiry, Appellant again requested that DJJ specify the format in which it would provide the records and suggested an electronic format would be better. Appellant also requested that DJJ provide "electronic copies of the other fulfilled requests" if possible. DJJ ultimately stated, "[I]t is our policy to produce printed copies and charge $ .10 per page accordingly. And for 19-41 and 19-42 we will not provide electronic copies."

By e-mail directed to DJJ on September 12, 2019, Appellant asserted that DJJ's aforementioned "policy" of printing and mailing a hard copy of a database in response to 19-36 - "and its refusal to provide electronic copies" for her remaining requests did not comply with the Act. She further maintained that a database, as requested in ORR 19-36, is, by its nature, maintained electronically. In addition, records potentially responsive to her remaining requests "would also be maintained electronically and therefore should be provided in that same format." The Appellant cited 18-ORD-078 on appeal in support of her position that making the necessary redactions "to the requested staff database while maintaining the electronic format would not constitute the creation of a new record," nor would it require DJJ to print a hard copy of an electronic document At no point in responding to Appellant's ORR 19-41 or ORR 19-43 did any representative of DJJ specify that the requested records existed only in hard copy format; instead, DJJ cited "only its 'policy' and issued a blanket refusal."

In DJJ's September 25, 2019, response to Appellant's ORR 19-48, it cited KRS 61.878(1)(a) to justify the withholding of personal information of DJJ employees, juvenile names, and case numbers. DJJ also generally stated that "some records" were protected from disclosure per KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503, due to being "confidential records protected by the attorney-client privilege and work product rule." On appeal, the Appellant admitted that such redactions were reasonable to maintain the privacy of the juveniles DJJ serves, but maintained that DJJ must perform such redactions electronically, referencing KRS 61.874(2)(a). Citing the agency's response to her ORR 19-47, in which DJJ explained that responsive documents were only maintained in hard copy format, she argued that DJJ is capable of specifying when records are not available in electronic format. 2

In summary, the Appellant "is not challenging the need for redactions." Rather, at issue is DJJ's refusal to make electronic redactions to electronic files. The effect of this policy requires the public to pay unnecessary printing costs for hard copies of voluminous records maintained in an electronic format and circumvents compliance with the Act.

In responding to this appeal, DJJ first noted that Appellant stated electronic format was "preferable," but did not "solely seek electronic documents." According to DJJ, if Appellant had asked for electronic records only, "production processes and responses would have been completed with that in mind." Next, DJJ argued that Appellant's requests for electronic records are nonstandardized requests, quoting KRS 61.874(2)(b). 3Because DJJ does not maintain records in ASCII format, DJJ asserted that "any request for electronic information would be a nonstandardized request." Quoting KRS 15A.0651(2) and 610.340(1)(a), DJJ emphasized it "has an escalated duty to protected [sic] confidential juvenile personal and facility information, which by its nature is part and parcel to DJJ's records."

However, DJJ did not deny any of the requests based on the confidentiality of information contained in the responsive documents. DJJ maintains "much of the requested information . . . such that it cannot be produced in its original form because it includes protected information including juvenile identifiers, facility specifications, and metadata that cannot be removed or redacted without first converting the record from its original form to a form in which it can be safely and securely redacted and produced." DJJ further argued that providing the records in electronic format "would be a very onerous undertaking." DJJ would have to "purchase third party software to redact information and remove hidden metadata and utilize IT staff to verify all confidential information has been removed."

DJJ explained, "The native form of the list that was compiled in response to [ORR 19-36] is Microsoft Excel. It is not possible to redact information in Excel without use of third party software, and the DJJ does not currently have such software." Accordingly, to remove confidential employee and non-responsive information, "DJJ would have to actually delete it from the spreadsheet, which is arguably [a] violation of KRS 61.874(1)." With regard to ORR 19-39, DJJ again stated that such records are not maintained in ASCII format, and the request is therefore nonstandardized. "Furthermore, confidential juvenile and employee information had to be removed from the Quality Assurance Audits." With regard to ORR 19-41, DJJ noted, "[o]ffender counts and statistics are maintained in a Microsoft Excel spreadsheet." In order to provide any responsive information without inadvertently disclosing confidential information, "DJJ prepared charts and graphs from the data in the spreadsheet." DJJ reiterated its position regarding the nonstandardized nature of the request and the agency's inability to redact confidential information contained in the responsive Excel spreadsheet; DJJ made this identical argument relative to ORRs 19-41, 19-43, 19-44, and 19-48.

In support of its decision to provide the records in hard copy format only, DJJ provided the November 18, 2019, affidavit of Brian Kiser, a Systems IT Consultant for DJJ. He first confirmed that DJJ does not currently maintain electronic documents in ASCII format. According to Mr. Kiser, the "versions of Microsoft Office programs that are in use at [DJJ] retain metadata and do not offer the ability to redact information." DJJ would have to purchase "a third party software tool that has adds [sic] redaction capabilities to Microsoft Office programs," print documents "and redact by hand, then scan or copy documents in order to ensure end users cannot view the redacted material or remove the redactions," or "[c]onvert the Microsoft office file(s) to a different type of file format that has redaction capabilities[.]" If DJJ is able to redact information electronically, DJJ "still must remove metadata from electronic files. In my experience, the most secure way to remove metadata is to print a document." 4Mr. Kiser suggested that someone in DJJ's IT branch review the documents "to ensure such information will not be accessible to the end user." Such action is an existing duty of any public agency.

This Office resolved the fundamental question presented here in 18-ORD-078; a copy of that decision is attached hereto and incorporated by reference. As such, this Office need not restate the rationale of that decision here. The Appellant "did not ask [DJJ] to reformat its existing database" nor did she ask the agency "to tailor the format to satisfy [her] particular needs, but instead ask[ed] for a copy of the database in its entirety [following permissible redactions]. It is therefore not within the discretion of [DJJ] to deny [her] request [for electronic records] per KRS 61.874(3)." 06-ORD-148, p. 7; 18-ORD-078. DJJ is authorized to redact any information that is exempt under KRS 61.878(1)(a) or 61.878(1)(l)(incorporating relevant confidentiality provisions), but "is obligated to so notify [Appellant], identifying the protected information, citing the applicable exception, and explaining how the exception applies to the information withheld per KRS 61.880(1), redact or mask the protected information fields per KRS 61.878(4), and make the nonexempt information available" per KRS 61.872(1)." 06-ORD-148, p. 8; 18-ORD-078.

Furthermore, in 95-ORD-82, the Attorney General analyzed KRS 61.847(3) as it relates to a public agency's duty to "separate the excepted and make nonexcepted material available for examination" pursuant to KRS 61.878(4). Significantly, this Office held that separating excepted material is not equivalent to producing a record in a specially tailored format, or nonstandardized format, within the meaning of KRS 61.874(3) as required to allow a public agency to recover staff costs; rather, agencies are required to discharge this duty under KRS 61.878(4) and must bear the cost of redaction. Id. , p. 2; 08-ORD-183. "If it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of public information, the agency shall bear the cost of such separation." 95-ORD-82, p. 3. (Citation omitted). "It is the opinion of this office that the type of storage system in which an agency has chosen to maintain its records does not diminish its duties under the Open Records Act. Accordingly, [this Office believes] that [DJJ] must discharge its duty under KRS 61.878(4), and must bear the costs attendant to [this] duty," if any. 03-ORD-004, p. 10; 98-ORD-33; 02-ORD-148; 18-ORD-078. This appeal presents no basis to depart from the reasoning found in 18-ORD-078. "It is commonly understood that exporting to an Excel or Comma-delimited text file generates the fields of data in a 'tabular' format whereby an entire field can be deleted. [DJJ] is not being asked to create a record to satisfy [the Appellant's] request." Id. Although DJJ argued it "would have to actually delete [exempt material] from the spreadsheet, which is arguably [a] violation of KRS 61.874(1)," 18-ORD-078 states otherwise. Based upon the foregoing, this Office finds that DJJ violated the Act in denying to provide the Appellant with any existing responsive documents in electronic format after making necessary redactions. Here, as in 18-ORD-078, this Office notes that "[o]ur holding today is not a departure from those decisions recognizing that a public agency such as [DJJ] is not statutorily required to compile information, perform research, or create a list/record in order to comply with a request; instead, our holding comports with prior decisions recognizing that redaction of exempt information by a public agency is not equivalent to creation of a record." Id. DJJ is required to separate protected information per KRS 61.878(4) and provide the Appellant with a redacted copy of the subject database(s) in electronic form.

Either party may appeal this decision by initiating action in the appropriate circuit court under 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 The remainder of this decision will refer only to the specific open records requests ("ORRs") and the dates DJJ responded, as this chronological summary contains the date each ORR was initially submitted to the agency.

2 DJJ provided the records in hard copy format and the related issues are moot. See 40 KAR 1:030 Section 6.

3 An ASCII delimited file is a text file with the extension .csv. All fields of a record are on one line, separated typically by commas[.]" ASCII delimited (*csv.) , AXIEL, http://documentation.axiell.com/alm/en/ds_eiefcommadelimited.html. (last visited January 14, 2020).

4 As of yet, DJJ has not attempted to justify the redaction of any metadata or explained its position with adequate specificity per KRS 61.880(1) and (2)(c).

20-ORD-004

LLM Generated Data

Appellant: Tessa Duvall

Agency: DJJ

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The DJJ violated the Act by denying to provide the appellant with existing responsive documents in electronic format after making necessary redactions. The decision emphasizes that the agency must bear the cost of redaction and must discharge its duty under the Open Records Act to separate confidential from non-confidential information. The appellant is not challenging the need for redactions but rather the agency's refusal to make electronic redactions to electronic files, which results in unnecessary printing costs for hard copies of records maintained electronically.

Cited Opinions

18-ORD-078: F

The decision is cited as it resolved the fundamental question presented in the current case in a previous decision.
06-ORD-148: F

Cited for the requirement that agencies must bear the cost of redaction and must discharge their duty under the Open Records Act to separate confidential from non-confidential information.
95-ORD-82: F

Cited for the duty of a public agency to separate excepted and nonexcepted material available for examination and the requirement that the agency bear the cost of such separation.
08-ORD-183: F

Cited for the duty of an agency to bear the cost of separating confidential from non-confidential information in order to permit the inspection, examination, or copying of public information.
03-ORD-004: F

Cited for the belief that an agency must discharge its duty under the Open Records Act and bear the costs attendant to this duty, regardless of the type of storage system in which the records are maintained.
98-ORD-33: F

Referenced for the duty of an agency to bear the costs attendant to the duty of separating confidential from non-confidential information.
02-ORD-148: F

Cited for the requirement that agencies must bear the costs attendant to their duty under the Open Records Act.

Source Opinion

Opinion

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

August 13, 2019 (ORR 19-42) : Request for "access to or copies, preferably in electronic form ," of "[a]ny master, facilities or capital plans for DJJ between Jan. 1, 2014 and present[.]

September 16, 2019 (ORR 19-47) : Request for "access to or copies in electronic form of" the "six-year capital plan for 2014-2020 that was finalized in April 2013[.]"

Footnotes

Footnotes

2 DJJ provided the records in hard copy format and the related issues are moot. See 40 KAR 1:030 Section 6.

4 As of yet, DJJ has not attempted to justify the redaction of any metadata or explained its position with adequate specificity per KRS 61.880(1) and (2)(c).

20-ORD-007

LLM Generated Data

Appellant: WAVE3 News

Agency: Louisville Metro Police Department

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Louisville Metro Police Department did not violate the Open Records Act in denying WAVE3 News' request for a document titled 'Preliminary Summary Findings and Conclusions' relating to Officer Kenneth Betts. The decision was based on the fact that the document was considered preliminary and was not adopted as the basis of final agency action, as the case was closed 'by exception' following Officer Betts' resignation. Therefore, the document retained its preliminary character and was not subject to disclosure. The decision found no violation of the Act.

Cited Opinions

01-ORD-47: O

This decision provides an analysis of how 'preliminary' records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken.
01-ORD-83: O

This decision reaffirms the analysis regarding the exemption of 'preliminary' records under KRS 61.878(1)(i) and (j) after final agency action is taken.
00-ORD-107: O

In this decision, it was determined that when an internal investigative or disciplinary process is pre-empted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records because those records were not adopted as part of its final action.
10-ORD-053: O

This decision establishes that when an internal investigative or disciplinary process is pre-empted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records because those records were not adopted as part of its final action.
12-ORD-055: O

Similar to 10-ORD-053, this decision confirms that when an internal investigative or disciplinary process is pre-empted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records because those records were not adopted as part of its final action.

Source Opinion

Opinion

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, 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 ("the Act") in its denial of a requegt from WAVE3 News ("Appellant") dated September 4; 2019, for a copy of a Professional Standards Unit ("PSU") document titled "Preliminary Summary Findings and conclusions," dated September 5, 2013, relating to Officer Kenneth Betts. For the reasons that follow, this Office finds no violation of the Act.

LMPD denied Appellant's request on September 20, 2019, 1stating that the document was "exempt from release pursuant to KRS 61.878(1)(i) and (j) which exempts the release of those that express opinions and are preliminary in nature." LMPD stated that "[k]eeping preliminary documents exempt from disclosure protects the integrity of the investigations by allowing investigators to free [ sic ] express opinions without fear of retaliation. Further, this investigation was 'Closed by Exception by Chief Conrad meaning the. Chief did not incorporate any of these records in making his final decision to close the investigation due to Kenneth Betts' resignation." Appellant initiated this appeal on December 11, 2019.

KRS 61.878(1)(i) and (j), respectively, create exceptions to the Open Records Act in the cases of:

(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]

(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]

The nature of the PSU document is such that it would consist of preliminary recommendations made prior to final agency action. Thus, the record was preliminary at the time of its creation.

University of Kentucky v. Courier-Journal & Louisville Times Co. , 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." In 01-ORD-47, summarizing the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken, this Office stated:

Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.

It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes a basis for the final agency action. "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 (citing

City of Louisville v. Courier-Journal and Louisville Times Co. , 637 S.W.2d 658 (Ky. App. 1982)). The Kentucky Court of Appeals reaffirmed this analysis in

University of Kentucky v. Lexington H-L Services, Inc. , 579 S.W.3d 858 (Ky. App. 2018).

The question is whether PSU's "Preliminary Summary Findings and Conclusions" document was adopted as the basis of final agency action. In its response to this appeal dated December 18, 2019, LMPD stated that PSU's role is to conduct administrative investigations of employees "to determine whether a policy violation has occurred. PSU ultimately serves as a fact-finder for the LMPD Chief of Police; the Chief is the final decisionmaker as to whether charge of a policy violation is warranted and discipline appropriate." There are six potential dispositions of a charge, which LMPD explained as follows:

SUSTAINED: Supported by a preponderance of the evidence; allegation(s) did occur.

NOT SUSTAINED: Insufficient evidence to either prove or disprove the allegation(s).

EXONERATED: Incident occurred, but was lawful and proper.

UNFOUNDED: Allegation(s) is false or not factual.

CLOSED: Withdrawn by complainant or complainant will not cooperate.

CLOSED BY EXCEPTION: Retirement, resignation, or other.

In this case, the final disposition imposed by Chief Conrad was "Closed by Exception" because Officer Betts resigned prior to the completion of the process.

These facts are analogous to those presented in

Palmer v. Driggers , 60 S.W.3d 592 (Ky. App. 2001), in which a police officer had resigned prior to final disposition of a disciplinary proceeding. The court determined that, in such a case, "the 'final action' of the agency was to take 'no action on the complaint." Palmer , at 597 (quoting 00-ORD-107). Therefore, once the officer had resigned, "[t]he subsequent decision of the [agency] to end the hearings against [the officer] constituted its 'final action." Id. at 597. Where an internal investigative or disciplinary process is pre-empted by the employee's resignation, the agency "is not obligated to [disclose] the underlying investigative records because those records were not adopted as part of its final action," and thus they "retain their preliminary characterization." 10-ORD-053; see also 12-ORD-055.

Appellant argues that the analysis should be different here because Officer Betts, shortly before his resignation, had purportedly received a notice of intent to terminate based upon the findings of PSU's investigation. LMPD responds that "[w]hether or not this is accurate is irrelevant" because "[t]he final action ultimately taken by Chief Conrad was to close the investigation with a disposition of 'Closed by Exception due to the subject employee's resignation," and that final disposition was not based on the PSU document.

This Office agrees that the existence of a notice of intent to terminate would not alter the nature of the final agency action. LMPD's applicable Standard Operating Procedure provides as follows:

If the Chief of Police believes that termination/ discharge is the correct discipline for a non-probationary member, the Chief's Office will provide, to the member, a statement citing the reason(s) and a pre-termination/ discharge opportunity to respond will be scheduled. ... If the member is terminated/discharged, the Chief's Office will notify the member, in writing, of the decision and the effective date of the termination/ discharge. 2

SOP 2.11.10 (emphasis added). Thus, if an officer is actually terminated, two documents are generated. A final "decision" to terminate is only issued after a preliminary notice of intent to dismiss and an opportunity to be heard. 3Accordingly, if Officer Betts received such a preliminary notice before choosing to resign, this fact would not alter Chief Conrad's final disposition of the matter, which was "Closed by Exception" due to the intervening resignation.

This Office therefore finds that the document titled "Preliminary Summary Findings and Conclusions" did not lose its preliminary character under KRS 61.878(1)(i) and (j), because it was not adopted as the basis of the final agency action; i.e. , closing the case "by exception" following Officer Betts' resignation. Thus, LMPD did not violate the 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

Footnotes

Footnotes

1 The record on appeal does not reflect the date when LMPD received the request. Under KRS 61.880(1), a public agency must respond to an open records request within three days, excluding weekends and legal holidays.

2 Available at https://louisville-police.org/DocumentCenter/View/615/Standard-Operatin… (last visited Dec. 20, 2019).

3 See also KRS 15.520(6)(b) (charge of officer misconduct "shall set out the disciplinary action recommended or imposed"); KRS 15.520(6)(c) ("no public statements shall be made concerning the alleged violation ... until final disposition of the charges").

20-ORD-005

LLM Generated Data

Appellant: David Raper

Agency: KSP

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

KSP did not violate the Open Records Act in denying David Raper's request for a specific photograph related to an extortion case. The decision in 17-ORD-269, which upheld the denial of the same photograph, was followed in this case. The denial was based on the exemption provided by KRS 61.878(1)(a) due to the highly personal and explicit nature of the photograph, which was deemed to constitute an unwarranted invasion of personal privacy. The decision affirms KSP's withholding of the photograph.

Cited Opinions

17-ORD-269: F

The decision in 17-ORD-269 upheld KSP's denial of a specific photograph in an extortion case, citing KRS 61.878(1)(a) as the basis for the denial.

Source Opinion

Opinion

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether KSP violated the Act in denying David Raper's ("Appellant") April 29, 2019, request for certain records pertaining to "the extortion case involving Joshua T. Phillips, Dee A. Bowman aka Dee A. Phillips, and the Commonwealth[,]" originally filed in Spencer County Circuit Court on December 13, 2013. Specifically, he requested "a copy: of the investigative file(s), uniform citation(s), Shelby County Grand Jury indictment(s), any statements and affidavits from victim(s) and witnesses, copies of exhibits to include text messages and photos, a copy of any plea agreements, and any information dealing with restitution." Following some delays and subsequent correspondence between the parties, KSP provided all existing records that satisfied the request except for the "photograph of Todd Walls referenced in Trooper Hedges' [Narrative Report]." The photograph is currently the only record in dispute.

By letter directed to the KSP Records Custodian on September 10, 2019, Appellant asked for a copy of the photograph referenced in the report, acknowledging "that the photograph is pornographic in nature." He also submitted a request by letter dated October 4, 2019, to KSP's Photo Lab, asking for a copy of the photograph, which "relates specifically to the extortion charge for which Mr. and Mrs. Phillips were also arrested and convicted." In his October 30, 2019, letter to the Records Custodian, Appellant noted that KSP had omitted "a photograph of Todd Walls apparently taken by Mr. Walls himself in the bathroom of the Taylorsville Police Department" from the records that KSP previously disclosed. In response to Appellant's October 30, 2019, letter, KSP denied his request for the specific photograph, citing KRS 61.878(1)(a), "as disclosure would constitute an unwarranted invasion of personal privacy." KSP also referenced 17-ORD-269 in support of its denial. Thereafter, Appellant filed this appeal.

In response to this appeal, KSP reiterated its position regarding application of KRS 61.878(1)(a) to this photograph and noted that KSP previously withheld the identical photograph in a response this Office upheld in 17-ORD-269. In resolving 17-ORD-269, the Attorney General reviewed the photograph in camera pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, before affirming the denial by KSP. Because this Office has already reviewed the subject photograph, and ultimately determined that KSP lawfully withheld it pursuant to KRS 61.878(1)(a), KSP asked this Office to follow the precedent established in 17-ORD-269 and find that it properly withheld the photograph. 1This Office agrees that the subject photograph has already been found exempt pursuant to KRS 61.878(1)(a). 17-ORD-269, p. 5. Accordingly, KSP did not violate the Act in denying Appellant's request.

Ky. Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. , 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records (or portions thereof). Recognizing the Act "exhibits a general bias favoring disclosure," the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure of the information outweighs the public benefit, and is an "intrinsically situational" determination that can only be made in a "specific context." Id. See

Cape Publications v. City of Louisville , 191 S.W.3d 10 (Ky. App. 2006)(holding that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent" and "case-by-case analysis" is required);

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 83 (Ky. 2013).

The Court of Appeals refined this standard in

Zink v. Com., Dep't of Workers' Claims, Labor Cabinet , 902 S.W.2d 825, 828 (Ky. App. 1994), reasoning that if the information requested is of a "personal nature," the next question is "whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy." This determination "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good." Id. (citation omitted). The only relevant public interest "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . " Id. at 829. The result in Zink hinged on the fact that disclosure of the inherently private information "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." Id.

Having exercised this Office's authority under KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, by reviewing the requested photograph in camera , this Office first acknowledged the "highly personal nature" of the subject photograph. As stated in 17-ORD-269 at p. 5 (emphasis added):

[I]n one of the uniform citations supplied by [the Appellant] the defendants were charged with extorting money by threatening "that explicit pictures of the victim would be sent to his wife, boss, and Media in attempt to ruin the victim's reputation and credibility within the community." Since this photograph is of a private and explicit nature, and has no inherent relevance to how KSP performed its duties, we find that the balance weighs in favor of the privacy interest under KRS 61.878(1)(a), and thus the photograph was lawfully withheld .

The instant appeal presents no basis to depart from this governing precedent. Accordingly, this office affirms the denial of the Appellant's request on the basis of KRS 61.878(1)(a).

Footnotes

Footnotes

1 As in this case, in 17-ORD-269 this Office was asked to determine whether KSP violated the Act in the disposition of the Appellant's request to inspect "the KSP Investigative file on former Taylorsville Police Officer[ ] Todd Walls, involving extortion by Joshua Phillips and Dee Bowman."

20-ORD-005

LLM Generated Data

Appellant: David Raper

Agency: KSP

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

KSP did not violate the Open Records Act in denying David Raper's request for a specific photograph related to an extortion case involving Joshua T. Phillips and Dee A. Bowman. The decision in 17-ORD-269, which upheld the denial of the same photograph based on KRS 61.878(1)(a), was followed in this case. The denial was deemed lawful as the requested photograph was of a highly personal and explicit nature, with no inherent relevance to KSP's duties, thus justifying its withholding under the privacy interest exception of KRS 61.878(1)(a).

Cited Opinions

17-ORD-269: F

The decision in 17-ORD-269 upheld KSP's denial of a specific photograph in an extortion case, citing KRS 61.878(1)(a) as the basis for withholding the photograph.

Source Opinion

Opinion

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 83 (Ky. 2013).

The Court of Appeals refined this standard in

The instant appeal presents no basis to depart from this governing precedent. Accordingly, this office affirms the denial of the Appellant's request on the basis of KRS 61.878(1)(a).

Footnotes

Footnotes

20-ORD-007

LLM Generated Data

Appellant: WAVE3 News

Agency: Louisville Metro Police Department

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Louisville Metro Police Department did not violate the Open Records Act in denying WAVE3 News' request for a document titled 'Preliminary Summary Findings and Conclusions' relating to Officer Kenneth Betts. The decision was based on the fact that the document was considered preliminary and had not been adopted as part of the final agency action, which was the closing of the case 'by exception' following Officer Betts' resignation. Therefore, the agency's denial was found to be in compliance with the law.

Cited Opinions

01-ORD-47: F

The decision explains the concept that once preliminary records are adopted as part of final agency action, they lose their preliminary characterization.
01-ORD-83: O

This decision reaffirms the analysis regarding the adoption of preliminary records as part of final agency action.
00-ORD-107: O

The decision in this case determined that when an internal investigative or disciplinary process is preempted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records.
10-ORD-053: O

This decision states that when an internal investigative or disciplinary process is preempted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records.
12-ORD-055: O

Similar to 10-ORD-053, this decision addresses the situation where an internal investigative or disciplinary process is preempted by an employee's resignation.