Request By:
Honorable William T. Warner
Nold, Mosley, Clare, Hubbard & Townes
Fifth Floor, The Hart Block Building
730 West Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. Michael S. Bell has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody as counsel to the Jefferson County Police Department. Specifically Mr. Bell requested to inspect the statements of four individual witnesses which were referred to during Grand Jury testimony on February 8, 1982. According to Mr. Bell, the Grand Jury returned an indictment of official misconduct, which charges have since been dropped. It is his opinion that the witness statements are no longer exempt under KRS 61.878(1)(f) and should be made available for his inspection pursuant to KRS 61.884.
You denied Mr. Bell's request based on KRS 61.878(1)(g) and (h) which exempt from public inspection (except upon court order) those public records consisting of:
(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.
Your denial also relies on City of Louisville v. Courier-Journal, Ky.App., 637 S.W.2d 658 (1982).
OPINION OF THE ATTORNEY GENERAL
It is the Opinion of the Attorney General that your denial was proper under the Open Records law.
Law enforcement records compiled in the process of detecting and investigating statutory or regulatory violations are exempt from public inspection until such time as enforcement action is complete, unless otherwise exempted. KRS 61.878(1)(f). The witness statements herein presumably were made pursuant to investigation, if, as Mr. Bell indicates, they served as a basis for the Grand Jury's indictment of official misconduct. Again assuming that the charges of official misconduct have been dropped and the investigation complete, the witness statements become open to public inspection unless otherwise exempted.
The purpose of the Open Records law is to provide the public with efficient and full access to public records. However, KRS 61.878 lists several exemptions which protect certain public records from disclosure due to their nature. It is our opinion that the above-mentioned witness statements are still exempted from public inspection, even if enforcement action is complete under KRS 61.878(1)(f), pursuant to KRS 61.878(1)(g) and (h).
There is no indication in your denial or in Mr. Bell's correspondence that these statements served as complaints which spawned an investigation leading to the official misconduct charges. Assuming that they are not complaints [which would be open to inspection once enforcement action is complete pursuant to City of Louisville, supra at 659-660], the statements constitute "preliminary" documents due to the fact that they are "correspondence with private individuals" and could contain the opinions or recommendations of the officer taking the statement. This reasoning is based in part on City of Louisville, supra, which holds police internal investigative files exempt under KRS 61.878(1)(g) and (h).
Mr. Bell requests inspection of these statements under KRS 61.884, which provides a person with access to any public record which mentions him by name. Mr. Bell indicates that he was never a member of the Jefferson County Police Department. Thus we assume that he was not the subject of the official misconduct charges and internal investigation. It is presumed that he wishes to inspect the witness statements as he is mentioned by name. KRS 61.884, however, is subject to the KRS 61.878 exemptions. As such, the preliminary status of the witness statements still exempts them from inspection even by a person who is, in fact, mentioned in the statement.
It is therefore the Opinion of the Attorney General that your denial of inspection was proper. KRS 61.878(1)(g) and (h), as well as City of Louisville, supra, operate to exempt preliminary records in police internal investigative files. The witness statements herein fall into that exempted category. The statements further remain exempt even if they mentioned Mr. Bell, for the statute which allows a person access to documents relating to him is also subject to the KRS 61.878 exemptions.
As directed by statute, a copy of this opinion is being sent to the requestor who may initiate further proceedings pursuant to KRS 61.880(5).