Request By:
Mr. Morgan T. Elkins
Commissioner
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Jim Malone has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the custody of the Kentucky State Police.
In his letter to you dated November 4, 1986, Mr. Malone requested that he be furnished with a copy of an internal affairs investigation into an alleged beating of a man by the Kentucky State Police in Bell County on or about November 11, 1980. Mr. Malone stated that according to information he has received the report involving the incident in question has been completed. He maintained that pursuant to OAG 83-366 reports indicating final agency action and containing the underlying complaint are open to public inspection.
In your letter to Mr. Malone, dated November 7, 1986, you denied his request to inspect the documents in question. You stated in part that the records he requested to inspect consist of preliminary recommendations and preliminary memoranda in which opinions are expressed. Such material may be excluded from public inspection pursuant to the provisions of KRS 61.878(1)(h).
Mr. Malone's appeal to this office maintains that since the report of the incident has been concluded, the report should be open for public inspection.
The undersigned Assistant Attorney General talked by telephone with Larry E. Fentress, Esq., the Legal Officer of the Kentucky State Police, on November 26, 1986. Mr. Fentress advised that the internal affairs investigation of the alleged beating incident was initiated by a verbal allegation rather than by a written complaint. The internal affairs investigation constitutes a preliminary report which may be excluded from public inspection. In addition, there is no final written report or decision of the public agency as it was decided to do nothing further relative to the investigation after the report pertaining to the internal affairs investigation had been completed and submitted.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order requiring inspection are those records described in KRS 61.878(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;"
In connection with the application of KRS 61.878(1)(g) and (h), the Court said in part in
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659 (1982) 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."
At page 660 of its opinion in the City of Louisville case, supra, the Court summarized as follows:
"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."
In OAG 86-22, copy enclosed, we concluded that the public agency's denial of the request to inspect and copy records pertaining to a professional standards internal affairs investigation of a former state trooper, consisting in part of preliminary drafts and notes, preliminary memoranda and reports containing the opinions, recommendations and observations of the investigating officers, was proper under the Open Records Act as such reports and documents may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h). We noted that while the complaint which initially spawned the investigation and the report of the final action taken are subject to public inspection, there was no final action taken in that particular investigation. See also OAG 86-5 and OAG 86-26, copies enclosed, dealing with the permissible exclusion from public inspection of those documents coming within the provisions of KRS 61.878(1)(g) and (h).
We have reexamined OAG 83-366, cited by Mr. Malone in his letter to you in support of his contention that he is entitled to inspect the records in question. That opinion concludes in part that police internal affairs reports may be exempted from public inspection as preliminary memoranda. Only those reports indicating the final action taken by the public agency and the initial complaint which spawned the investigation are required to be made available for public inspection. The opinion is therefore consistent with the court's holding in
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982) and the other opinions of this office previously cited in this opinion.
Thus it is the opinion of this office that your denial of the request to inspect and copy the report pertaining to an internal affairs investigation conducted by the State Police was proper under the Open Records Act as such a document may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h). While, normally, the complaint which spawned the investigation and the report setting forth the final action taken by the public agency relative to the investigation are public records, in this particular situation an oral allegation rather than a written complaint initiated the investigation and there was no final written report or decision of the public agency pertaining to the investigation.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Jim Malone, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).