Request By:
John McFadden, Chief
Division of Police
Lexington-Fayette Urban
County Government
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl T. Miller, Jr., Assistant Attorney General
Mr. John P.C. Silva, City/State Editor, Lexington Herald has appealed to the attorney general under KRS 61.880 your denial of his request to inspect certain public records in your custody. The records requested are described as follows:
"(1) All records relating to internal affairs investigations of police officers in which a final disposition has been reached.
(2) For each instance, the newspaper is seeking access to records that would identify at least: The officer's name; the offense; date of the offense; complaining witness; inspector's conclusion and/or recommendation; and disposition of the case."
Mr. Edward W. Gardner, corporate counsel, responded to the request on your behalf stating that your office is unable to comply with the request because to do so would place an unreasonable burden on the office in producing voluminous records, citing KRS 61.872(5) which provides as follows:
"If the application places an unreasonable burden in the producing of voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence."
In his letter of appeal to the attorney general Mr. Silva states -- "In subsequent contacts with the Lexington Division of Police, our newspaper has confirmed that the records sought are not only segregable from other nonrequested records, but are in fact maintained in a single location confined to a single file cabinet in police headquarters."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the attorney general that the only records from the investigation files of internal affairs of a police department which may be inspected by the public are those which reveal the disciplining of an officer by the chief and the reason for the action taken. See OAG 80-43, copy enclosed, which was the subject of a decision of the court of appeals in City of Louisville v. The Courier Journal and Louisville Times Co., Ky. 637 S.W.2d 658 (1982). The opinion of the court of appeals contains the following:
"It is the opinion of this court that subsections (g)(h) quoted above protect the internal affairs reports from being made public. Internal affairs, as was stipulated, 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. Perforce although at that point the work of internal affairs is final as to its role, it remains preliminary to the chief's final decision. Of course, if the chief adopts its notes or recommendations as part of its final action, clearly the preliminary characterization is lost to that extent.
This holding, however, is limited to internal affairs involvement. We do not find that the complaints per se are exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as part of those final determinations. We acknowledge that it is possible that these complaints could be afforded continuing exemption under subsection (g) relating to preliminary correspondence with private individuals; however, that determination would be made upon consideration of the facts on a case-by-case basis and would be dealt with under KRS 61.878(3): 'If any public record contains material which is not accepted under this section, the public agency shall separate the accepted and the nonaccepted material available for examination.'
In summary, we hold that the investigative files of internal affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g)(h). This does not extend to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the chief thereon."
In the City of Louisville case from which we have just quoted the newspaper had requested to inspect records relating to a named police officer. Mr. Silva's request to you, however, was to inspect the records of all internal affairs investigations of police officers. Thus the two requests differ in magnitude and you may or may not be entitled to invoke the exemption of KRS 61.872(3) dealing with a request to inspect voluminous records which would place an unreasonable burden on your office. We think it unnecessary, however, to enter the dispute as to "voluminous records" at this time because of the limiting effect of the court's opinion in the Louisville case. Clearly the public is not entitled to have access to "all records relating to internal affairs investigations."
We believe that Mr. Silva is entitled to inspect the records of a named police officer to the extent of the final disciplinary action taken by you as chief and the complaint which prompted your action. Whether the requester is entitled to inspect all such records in your office of every police officer who has been the subject of disciplinary action depends on a factual determination by you, supported by substantial proof, of whether making the limited records available places an unreasonable burden on your office. In making your determination the pertinent factors are the number of disciplinary actions in your files and the amount of staff time which would be required to separate exempted material from the nonexempted, that is the record showing final action and the underlying complaint. The exempted material is, of course, intra office memoranda which are preliminary in nature and express the opinions and recommendations of the internal affairs investigators.
In conclusion, it is our opinion that you should make a further response to Mr. Silva, either furnishing nonexempted material as defined herein or explaining why it would be an unreasonable burden on your office to do so.
A copy of this opinion is being sent to Mr. Silva as directed by statute. Either the agency or the requester has the right to challenge the opinion in court KRS 61.880(5).