Request By:
Honorable Will Schroder
City Solicitor
City of Newport
Newport, Kentucky 41017
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Gary S. Webb has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records of the police department of the city of Newport. The records are described as:
"any and all records, statements, tape recordings, reports, memorandae, photographs, summaries and any abstracts of the above that relate to a recently concluded investigation of the Newport Police Department regarding allegations of drug use and/or sales and other infractions."
You responded to the request by letter dated Novemver 5, 1982 stating that you were denying the request on the grounds of attorney-client privilege, and on the basis of the exceptions to the open meeting law in KRS 61.878(1)(a), (f), (g), (h).
While making a general denial of the request you did furnish Mr. Webb a copy of your memorandum of October 25, 1982 addressed to the mayor and city commissioners of the City of Newport concerning your internal affairs investigation of the police department.
We have considered Mr. Webb's original request, your response, your memorandum to the mayor and commissioners and Mr. Webb's letter of appeal to the attorney general in which he cites case law and other authority. After so doing we have arrived at the following opinion.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the attorney general that your denial of the described records was in accordance with the open records law, KRS 61.870 - 61.884, under the exemption from mandatory public disclosure provided by KRS 61.878(1)(g), and (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:
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(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 polices formulated or recommeded."
We dealt with substantially the same question involved in this appeal in OAG 80-43 except in that case the Courier Journal and Louisville Times Company had requested internal affairs documents pertaining to one named police officer rather than, as in this case, the records pertaining to an investigation of an entire police department. We held that the statements of witnesses supporting complaints against policemen, the statements of other officers present at the time of the incident, the statements of any other witnesses, the investigator's report and recommendation to the chief of police were exempt from mandatory public disclosure under KRS 61.878(1)(g) and (h), quoted above. Our opinion was contested in the Jefferson Circuit Court and appealed to the Court of Appeals of Kentucky. The Court of Appeals substantially agreed with our conclusion.
City of Louisville v. Courier Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). The opinion of the court included the following:
"It is the opinion of this court that subsections (g) and (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 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.
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In summary, we hold that the investigative files of internal affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g) and (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."
The papers which Mr. Webb has furnished us and which we have mentioned above make no reference to any specific complaint and your report to the city officials makes no specific recommendation of disciplinary action against any officer. Under the decision of the Court of Appeals we have cited we believe, therefore, none of the requested records are mandatorily required to be made public.
As directed by statute a copy of this opinion is being sent to the requester, Mr. Webb, who has the right to challenge it in court. KRS 61.880(5).