Request By:
Joseph T. Condit, Esq.
City Solicitor, City of Covington
18 West Pike Street
Covington, Kentucky 41011
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Mike Farrell has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of the request of Michael Collins to inspect and copy various documents in the custody of the city's police department.
In his letter to the city's police chief, dated August 31, 1987, Mr. Collins requested "access to the resignation letter of Officer Allen Coffey, any disciplinary reports that are part of his record and any departmental memos about the incident that led to his resignation. " Pursuant to a letter dated September 2, 1987, the city's police chief referred Mr. Collins' letter to you for reply.
You replied, on behalf of the city, to Mr. Collins in a letter dated September 4, 1987, and stated as follows:
"This is in reply to your letter dated August 31, 1987, requesting the resignation letter of Allen Coffey and any disciplinary reports and any departmental memos about the incident that led to his resignation.
"I am enclosing a copy of Mr. Coffey's resignation letter as this resignation was acted upon at the City Commission's public meeting of September 1, 1987, and is in my opinion a matter of public record. The other records that you have requested are not public record, and to release them would be a violation of Officer Coffey's right to privacy. I suggest that if you desire copies of personnel matters relating to Officer Coffey, you contact him directly, and obtain a release signed by him."
In his letter of appeal to this office, Mr. Farrell cites OAG 78-133 in support of his contention that disciplinary records are not exempt from public inspection.
The undersigned Assistant Attorney General talked with you by telephone on September 14, 1987. You advised that the police officer in question resigned during his probationary period. He resigned without qualification. You further stated that there is no evidence that any document in his file played a part in the resignation. There are no disciplinary reports related to the resignation. Included in his file are departmental memoranda and evaluations by his superiors.
OPINION OF THE ATTORNEY GENERAL
Since you have made the letter of resignation available, the only categories of documents to be considered by this opinion are departmental memoranda and disciplinary reports/evaluation reports.
Among the public records which may be withheld from public inspection in the absence of a court order authorizing inspection are those records mentioned in KRS 61.878(1)(a), (g) and (h):
"(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
"(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;"
If the departmental memoranda involved here constitute preliminary intraoffice communications setting forth opinions, observations and recommendations of various departmental personnel and they do not represent the department's final decision or determination on any matter, then they may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). See OAG 87-10 and OAG 87-32, copies of which are enclosed.
In OAG 86-19, copy enclosed, we said that memoranda of an evaluative nature have been consistently exempt from public inspection as a protection against an unwarranted invasion of personal privacy. The privacy right protects both the subject of and the creator of the document of evaluation and opinion. While OAG 86-15, copy enclosed, dealt primarily with teacher evaluations, that opinion, at page three, did refer to an earlier opinion dealing with the evaluation of a policeman's performance. An evaluation of a policeman is a matter of opinion and standing alone does not constitute any action on the part of the police department. The public's right to know is outweighed by the policeman's right of personal privacy.
Thus, the city may, pursuant to KRS 61.878(1)(a), exclude from public inspection an evaluation of a policeman prepared by his superiors.
Mr. Farrell has cited OAG 78-133, a copy of which is enclosed, to support his contention that disciplinary records are subject to public inspection. That opinion involved a request to inspect documents pertaining to disciplinary action taken against a state police officer. We concluded that the public, after the disciplinary proceeding has been concluded, has a right to know what the officer was accused of and the charges should be made available, upon request, for public inspection. However, preliminary memoranda in which opinions were expressed could be excluded from public inspection.
In connection with the application of KRS 61.878(1)(g) and (h) to investigations of and disciplinary matters taken against police officers, we direct your attention to
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982). That case is discussed in OAG 87-32 and, as we construe the court's holding, it requires that the public, upon request, be given the opportunity to inspect the complaints which initially spawned the investigation and the public agency's final action or decision relative to the matter.
The original letter of request to the police chief asked in part for "any disciplinary reports that are part of his record" which you interpreted to mean as any disciplinary reports about the incident that led to the officer's resignation. While we cannot ascertain the scope of the original request, it is our opinion that if the disciplinary reports, in fact, involve disciplinary proceedings against the police officer, then the public is entitled to know the final action or decision of the city relative to those proceedings and is entitled to see the complaint which led to the initiation of such proceedings. If the disciplinary reports merely involve evaluations of the officer pursuant to which no action has been taken or opinions of others relative to his performance such reports may be withheld from public inspection. If there are no disciplinary reports then the request for them is moot.
As required by statute, a copy of this opinion is being sent to the appealing party, Mr. Mike Farrell, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5). If the public agency or its legal counsel or officials of the public agency interpret this opinion in part as an adverse ruling, any of them may challenge that portion of the opinion in the appropriate circuit court.