Request By:
Mr. Robert E. Spillman, Chairman
Allegations Steering Committee
Kentucky Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
James D. Ishmael, Jr., Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records which apparently are in your custody. He described the records in question as follows:
". . . [A]ny and all records, documents, notes or information which are in your possession or which are in the possession of the Allegations Steering Committee pertaining to any complaints, reports or allegations, whether orally or in writing, made by any individuals, groups or organizations, to yourself individually, to the Allegations Steering Committee or to the Kentucky Department of Education, regarding Super-intendent Eddie L. Brown or regarding the McCreary County School System which precipitated an investigation of said superintendent and the McCreary County School System by the Kentucky Department of Education."
In your letter to Mr. Ishmael, dated August 15, 1985, you denied his request to inspect the documents in question. You said that all documents compiled between the initial, preliminary complaints and the correspondence of your department already sent to the McCreary County Board are investigatory documents, memoranda, notes and preliminary recommendations of your in-house Allegations Steering Committee which are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h).
As to the citizen complaints in your possession you state that they constitute preliminary correspondence with private persons and are exempt from inspection under KRS 61.878(1)(g). Also you state that the release of the names of the complainants would constitute a clearly unwarranted invasion of personal privacy [KRS 61.878(1)(a)]. Finally, you maintain that the citizen complaints cannot be released at the present time under KRS 61.878(1)(f) since investigatory and enforcement action relative to the Board's claims of compliance have not been completed.
In his letter of appeal to this Office, Mr. Ishmael states in part that you did not respond to his request within three days. The record supports his allegation and KRS 61.880(1) requires the public agency to respond in writing to the person making the request within three days after the receipt of the request (Saturdays, Sundays and legal holidays excepted) .
OPINION OF THE ATTORNEY GENERAL
KRS 61.878 which sets forth those public records excluded from the application of the Open Records Law and subject to inspection only upon an order of a court of competent jurisdiction provides in subsections (1)(g) and (h) as follows:
"(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;"
You describe the documents compiled between the receipt of the initial complaints and your letter dated April 3, 1985 with the attached copy of the report of the investigation as investigatory documents, memoranda, notes and preliminary recommendations of an in-house committee.
In OAG 85-77, copy enclosed, at page two, we said in part that an investigative report prepared by an officer which contained his recommendations and which did not represent the final decision or action of the public agency relative to the matter being investigated, would constitute a preliminary memorandum under the provisions of KRS 61.878(1)(g) and (h). As a preliminary document it would normally be excluded from public inspection. In OAG 85-92, copy enclosed, at page two, we said that a compliance officer's worknotes, compiled in the course of an investigation of a worksite, containing preliminary drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, constitute preliminary material under KRS 61.878 (1)(g). Furthermore, work papers and intraoffice memoranda are exempt from public inspection under KRS 61.878(1)(h). See also OAG 85-107, copy enclosed.
You have excluded the citizen complaints from public inspection on the basis of the provisions of KRS 61.878(1) (a)(f) and (g). KRS 61.878(1)(a) contains an exemption from public inspection because of an unwarranted invasion of personal privacy. KRS 61.878(1)(f) sets forth an exemption from public inspection until after enforcement action is completed or a decision is made to take no such action.
You should be aware, however, of the Court of Appeals' decision in City of Louisville v. The Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). The court said in part that once final action is taken or a final decision is made, any complaint which spawned the investigation becomes incorporated into the final action and is at that time open to public inspection. Although the issue of the complainant's identity was not considered by the court, this Office said in OAG 84-315, copy enclosed, at page four, that the claimant's identity is exempt from public inspection pursuant to KRS 61.878(1)(a) in the absence of a court order requiring the release of such information. Pursuant to KRS 61.878(3) a public agency is required to separate the excepted material from the nonexcepted material and make the nonexcepted material available for public inspection.
While the report of the investigation you sent to the McCreary County School Board with your letter of April 3, 1985 appears to be a final report of the agency's investigation of the matter, the applicability of KRS 61.878(1)(f) needs to be resolved. While the complaints which spawned the investigation will ultimately be available for public inspection, such inspection may be delayed until the public agency completes its enforcement action or makes a decision to take no such action. KRS 61.878(1)(f) may be relied upon by a public agency to prohibit the release of material to be used in a prospective law enforcement action or in an administrative adjudication. See OAG 85-93, copy enclosed.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect documents described as investigatory documents, memoranda, notes and preliminary recommendations of a public agency was proper as such materials are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h). Your denial of the request to examine the complaints which spawned the public agency's investigation was proper only until such time as the public agency completes its enforcement action or makes a decision to take no such action, at which time the complaints minus the complainants' names must be made available for public inspection.
As required by statute, a copy of this opinion is being sent to the requesting party, James. D. Ishmael, Jr., Esq., and either party has the right to challenge it in circuit court pursuant to KRS 61.880(5).