Request By:
Sergeant Steve Willis
Administrative Section
Ashland Police Department
P.O. Box 1864
Ashland, Kentucky 41101
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Patrolman Walter J. Preston has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records which apparently are in your custody. He describes the materials in question as all the papers pertaining to a complaint filed against him by River Cities Liquors, Inc.
A person associated with River Cities Liquors, Inc. filed a signed and sworn-to complaint against Walter J. Preston. The matter was investigated by Lt. Opell. You denied Mr. Preston's request to inspect the records in question apparently relying upon KRS 61.878(1)(f) pertaining to the exclusion from public inspection in the absence of a court order of records of law enforcement agencies or agencies involved in an administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations.
During the course of a telephone conversation between you and the undersigned Assistant Attorney General on April 24, 1985, you stated that the matter was investigated by an officer who prepared a report, with his recommendations, which was placed in the chain of command process. The report and the investigating officer's recommendations were ultimately received by the chief of police who made the final decision in the matter. The chief of police evidently concluded that the charges and accusations were unfounded and the matter is considered to be over and completed.
OPINION OF THE ATTORNEY GENERAL
It would appear that your reliance upon KRS 61.878(1)(f) to support your denial of the request to inspect public records is unfounded. That statutory section states in part that "Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action." The action with which you are concerned is completed and the police chief concluded that the charges and accusations have no merit.
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;"
The investigative report prepared by Lt. Opell, which contained his recommendations and which did not represent the final action or decision of the public agency relative to the matter being investigated would constitute a preliminary memorandum under the provisions quoted above. As a preliminary memorandum it would normally be excluded from the coverage of the Open Records Law.
A case which has a direct bearing on the situation with which you are concerned is City of Louisville v. The Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982). Under the holding of that case, once final action has been taken by a public agency, the final report and any documents incorporated into and made a part of the final report are open to public inspection. The complaint is considered to have been incorporated into the final report or final determination due to its role as initially causing the investigation upon which the final report or determination was rendered. At page 660 of its opinion in the City of Louisville case, supra, the court said in part:
"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 thereupon."
Thus under the factual situation involved in this particular matter, it is our opinion that Mr. Preston is entitled to inspect the following documents:
1. The final report of the police chief concerning the disposition of the complaint which resulted in the investigation;
2. The complaint which led to the investigation and the chief's final report;
3. The investigatory report arising out of the complaint only if the report was incorporated into the final report.
In connection with the question presented here, see OAG 83-425, OAG 82-547 and OAG 83-366, copies of which are enclosed.
We also direct your attention to KRS 61.880(2) providing in part that a copy of the written response denying inspection of a public record shall be forwarded immediately by the agency to the Attorney General. That was not done in this case.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect public records was improper to the extent that the denial extended to the complaint which led to the department's investigation and to the extent that it included (if it did) the chief's final report relative to the disposition of the matter. Your denial of the request to inspect the investigative report of the police officer which contained that officer's observations and recommendations was proper so long as that specific report was not incorporated into the chief's final report of the matter.
As required by statute, a copy of this opinion is being sent to the requesting party and either party has the right to challenge it in court pursuant to KRS 61.880(5).