Request By:
Mr. Max E. Simmons
Director of Law
City of Louisville
City Hall
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
As we advised you in our letter of January 3, 1980, The Courier Journal & Louisville Times Company has appealed to the Attorney General under KRS 61.880 your denial of access to certain public records described as follows:
"All records and documents relating to complaints filed against Louisville police officer, Robert Whitaker, including records relating to investigations of complaints which investigations have been completed, including but not limited to investigations and complaints by or on behalf of Fred Harris, and any and all records relating to Officer Whitaker's job performance, including use of force reports."
In our letter above mentioned we requested that you send us a copy of the documents in your possession which fall under the above quoted description. On January 14, 1980, you had hand delivered to this office a copy of the documents. Our review of the documents finds them to fall in two categories: (1) personnel records -- application, performance appraisal, promotion flow charts, reports of injury in line of duty and notice of reassignment; (2) relating to complaints -- written statements by complainants, witnesses and the officer; memoranda reports from the Internal Affairs Investigator to the Chief of Police recommending disposition. The documents brought to us did not include any personnel action forms or official orders affecting the employment of Officer Robert Whitaker, such as disciplinary orders, promotion or demotion orders.
The request under review specified only documents relating to complaints filed against Louisville Police Officer Robert Whitaker and, therefore, it is not necessary for us to discuss general personnel records.
All documents relating to complaints were generated by the Internal Affairs Division, Director of Safety's Office. In denying the request of a reporter for the Courier to inspect the documents, the City of Louisville based its action on the following premises: (1) The City of Louisville and Officer Whitaker are defendants in a civil suit and making the documents open to inspection would prejudice the City's right to a fair trial and if the Open Records statute requires allowing the documents to be inspected by the public, it violates Kentucky Constitution § 7 which guarantees the right of trial by jury. (2) The Internal Affairs Division is not a public agency within the purview of the Open Records Law. (3) The public inspection of the documents would be an unwarranted invasion of the personal privacy of the police officer and others. After reviewing the documents relating to complaints, we agree with the City that it is not required to make them available for public inspection for reasons we will state below. We do not necessarily adopt or approve the reasons given by the City.
First, it is our opinion what the Internal Affairs Division of the Department of Safety is a public agency within the meaning of the Kentucky Open Records Law. It is the only agency in Louisville existing for the purpose of receiving and reviewing citizens' complaints against policemen. It is created by the Chief of Police and is therefore a public agency.
[Some cities have a civilian review commission to hear citizens' complaints against police officers, and some states have a general law requiring cities to have such a commission. Kentucky has no such law and the General Assembly has granted the City of Louisville home rule. KRS 83.410.]
Since the Interal Affairs Division is a public agency, the documents which it has generated are public records within the meaning of the Kentucky Open Records Law. However, we believe that subject documents may be withheld from public inspection under KRS 61.878(1)(g)(h) which read as follows:
"The following public records are excluded from the application of KRS 61.870-61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
* * *
(g) preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(h) preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
When a complaint is made against a police officer a verbatim record is made by a stenographer under the direction of an investigator of the complaint, the statement of witnesses supporting the complaint, the statement of other officers present at the time of the incident and the statement of any other witness having knowledge of the facts. The investigator submits a report and recommendation to the Chief of Police along with the transcript of the statements. The Chief alone decides what action, if any, is to be taken. The investigator is only an agent of the Chief. The report he makes to the Chief is of the same nature as the notes the Chief could make for himself. If the Chief takes some affirmative action disciplining the officer, the action taken and the cause of the action would be a public record. This office has often stated that the public has a right to know the name, position, work station, salary, and reason for personnel action against a public employee. OAG 78-133. The privacy rights of the public employee extend only to matters which are not related to the performance of his work. The Open Records Law, however, exempts intra-office memoranda dealing with complaints, proposals and recommendations which are preliminary in nature from mandatory public inspection.
In summary, it is the opinion of this office that the documents relating to complaints against Officer Robert Whitaker, of the Louisville Police Department, which we have described herein, are preliminary in nature and may be withheld from public inspection under the Kentucky Open Records Law.