The Lexington Herald-Leader reports that on April 11 the Lexington-Fayette Urban County Council approved the suspension without pay of Lexington Fire Department Captain Robert Forehand for the use of racially offensive language in a firefighter recruit class. Capt. Forehand was also required to complete diversity training.

Capt. Forehand's disciplinary records were released to the Herald-Leader, but those records do not indicate what Forehand said to the recruit class.

The records reveal that on January 9, a firefighter recruit called Battalion Chief Lee Hayden. The recruit complained that Forehand "used racially inappropriate language while addressing a group of recruits."

Assistant Chief John Gosper, who supervises the department's internal affairs and human resources, explained that the comments "were part of the investigative file and are not subject to open records."

This is an erroneous interpretation of the open records law.

In an early opinion addressing the public's right of access to a police officer's disciplinary records, the Kentucky Court of Appeals recognized that "The public upon request has a right to know what complaints have been made and the final action taken by the thereupon."

This is undisputed.

Unfortunately, public agencies read the next part of the court's analysis to extend absolute protection to the underlying investigative file. They are wrong.

This is what the court said:

"[The preliminary documents exceptions] protect the Internal Affairs reports from being made public. Internal Affairs has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.

Its information is submitted for review to the Chief who alone determines what final action is to be taken. [A[lthough at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent."

The final sentence is critical.

An agency's investigators gather facts and make recommendations but do not have the authority to impose discipline. Their findings and recommendations are submitted to a final decision maker and remain preliminary UNLESS the decision maker adopts the investigators' finding and recommendation "as part of his final action."

If the final decision maker agrees that the investigators' finding warrant the discipline recommended --or the recommendation not to impose discipline -- and he or she adopts that recommendation, the investigative records are no longer preliminary and must be disclosed to the public.

This analysis has been challenged numerous times in the context of public employee discipline. Public agencies ignore the court's test or go to great lengths to avoid its application. But their efforts have been unsuccessful. The analysis is largely unchanged. Later opinions adopt and refine it

.

The final decision maker in the Lexington-Fayette Urban County Government's disciplinary structure is the Urban County Council. On April 11, it adopted the Fire Department internal affairs' findings and recommendations by approving Capt. Forehand's recommended suspension without pay and mandatory diversity training.

The public is therefore entitled to inspect the January 9 complaint (anything from a formal preprinted complaint form to an informal phone or email message containing the allegations); the final action (usually in the form of a letter/communication notifying Forehand of the final decision and the nature of the discipline imposed); and the underlying investigative file, including the offensive language he used.

How else can the public assess whether the discipline imposed was appropriate to the seriousness of the substantiated offense?