Request By:
Terry Sellars, Esq.
Commissioner of Law and Public Safety
Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Keith A. Williams has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect a specific public document which apparently is in your custody. He describes the document in question as the written statement of a Lexington police officer made in response to his complaint against that officer. He maintains that the statement has already been read to him over the telephone by another police officer.
In your letter to Mr. Williams dated May 13, 1985, you advised that his request was being denied pursuant to KRS 61.878(1)(g) and (h) as the Urban County Government's Division of Police Internal Affairs file relating to the complaint against the police officer contains preliminary drafts, notes, correspondence with private individuals, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. You further advised Mr. Williams that after final action has been taken you would disclose the nature of that action to him.
Opinion of the Attorney General
Among the public records excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884) and subject to inspection only upon an order of a court of competent jurisdiction are those dealt with in KRS 61.878(1)(g) and (h):
"(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; "
A case which is relevant to the situation presented by this appeal is City of Louisville v. The Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982). At pages 659 - 660 of its opinion the court said in part as follows:
"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."
* * *
"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."
The specific document requested is a written statement of a police officer which was obtained by the police department relative to its investigation of a complaint filed by a citizen against a police officer. The investigative file of the police department constitutes a preliminary document and not the final decision or action of the police department. It is our understanding that the file and its contents will ultimately be sent up the chain of command for a final decision.
In connection with the appeal under consideration, see OAG 85-77, OAG 84-249 and OAG 84-118, copies of which are enclosed.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect the statement of a police officer made in connection with a complaint filed against the police officer by the requesting party was proper under the Open Records Law as the officer's statement is a preliminary record in the internal investigative files of the police department and excluded, from those records subject to public inspection, by KRS 61.878(1)(g) and (h) unless it is incorporated into any notice of final action by the police department.
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in circuit court pursuant to KRS 61.880(5).