Request By:
Hon. Frank X. Quickert, Jr.
Director of Law
City of Louisville
Room 200, City Hall
Louisville, Kentucky 40202-2772
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General, (502) 564-7600
By letter of August 7, 1989, Jon L. Fleischaker, of Wyatt, Tarrant & Combs, on behalf of the Louisville Courier-Journal and Times Company, requested an opinion pursuant to KRS 61.880(2), concerning your denial of a request by two of the paper's staff writers to inspect certain records pertaining to evaluation of the performance of the Louisville police chief.
KRS 61.880(2) provides, in part, that the Attorney General shall, upon request of one whose request to inspect public records has been denied, "issue an opinion stating whether an agency . . . acted consistent with provisions of KRS 61.870 to 61.884."
FINDINGS IN BRIEF
The City of Louisville failed to act consistent with Open Records provisions in making a blanket denial of a request to inspect a "performance appraisal" and related documents regarding the Louisville Police Chief, by (1) failing to provide a brief explanation of how statutory exceptions (to the general rule that inspection of public records is permitted) applied to records withheld from inspection, (2) by denying inspection of a record on the ground it was a "preliminary draft" when it was not of such character, and (3) by denying inspection of records on the ground they constituted "preliminary recommendations, " when there was no indication they were other than final unto themselves, and no subsequent product was generated that the records could be considered preliminary to.
FACTUAL BACKGROUND
By letter dated July 25, 1989, to Louisville Mayor Jerry Abramson, Courier-Journal staff writers Cary Willis and Rick McDonough stated, in part:
We are requesting a copy of the latest performance appraisal of Police Chief Richard Dotson by the Police Administration Advisory Committee.
We also would like copies of any addenda, letters, or other documents you received from the committee pertaining to the appraisal.
You responded by letter of July 27, 1989, denying the request in its entirety. Your letter stated, in part: "Your request is denied pursuant to KRS 61.878(g) [sic] and (h)." No explanation was provided regarding how such provisions applied to the records withheld from inspection.
As understood from a telephone conversation with Louisville Public Safety Director Thomas Kuster, an appraisal of the performance of the Chief of the Louisville Police Department was prepared by the City of Louisville's Police Administration Advisory Committee. It is our further understanding that the Mayor of the City of Louisville did not prepare his own appraisal of the performance of the Chief.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must indicate the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, and give a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
The city of Louisville is clearly a public agency whose records are subject to Open Records provisions of the statutes.
Although the City's response was timely, no brief explanation was provided regarding how provisions cited as a basis for denial of inspection applied to records withheld from inspection. Such an explanation is required by KRS 61.880(2). In failing to provide such explanation, the City failed to act consistent with KRS 61.870 to 61.884.
Regarding the substantive basis relied upon by the City in denying inspection of the particular records sought, we provide the following analysis:
The request sought a copy of the latest performance appraisal of the Louisville police chief by the Police Administration Advisory Committee, and any addenda, letters, or other documents related thereto.
In denying inspection of such documents, you cited KRS 61.878(g) and (h) (actually 61.878 (1) (g) and (h)). Those provisions permit a public agency to deny inspection of records that constitute:
(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 determining whether particular records have been properly exempted under one of the exceptions in KRS 61.878, we are guided by KRS 61.882(4), which, in pertinent part, sets forth:
. . . [T]he basic policy of KRS 61.870 to 61.884 that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
The records here involved are a performance evaluation of the Louisville Police Chief as prepared by the City of Louisville's Police Administration Advisory Committee, and any addenda thereto.
Despite a Louisville City Ordinance that provides for the Committee to assist the Director of Public Safety in reviewing the performance of the Chief of Police, and ". . . report its findings to the Director of Public Safety, who is to ". . . appraise the performance of the Chief of Police," (Ordinance No. 117, Series 1982, Section 4(a) and (c)), it is understood that the Committee actually prepares its own performance appraisal of the Louisville Police Chief, the Director of Public Safety does not prepare one.
There is no indication that the performance appraisal sought by reporters Willis and McDonough is anything other than a final work of the Committee. That is, the appraisal sought by the reporters is not a preliminary draft of such appraisal. The appraisal is, therefore, not a "preliminary draft" as such phrase is used in KRS 61.878(1)(g), supra. Accordingly, citation of such exception as a basis for denying inspection of public records was not consistent with KRS 61.870 to 61.884.
This leaves the question of whether inspection of the appraisal, and addenda, etc., were properly denied pursuant to KRS 61.878(1)(h), either as "preliminary recommendations, " or as a "preliminary memorandum in which opinions are expressed or policies formulated or recommended. " As discussed below, we believe they were not.
Ordinance 117, supra, Section 4(d), provides:
(d) Based on the information provided, within thirty days, the Mayor will concur with the performance appraisal as submitted or will issue his own appraisal of the performance of the Chief of Police. If the Mayor does not substantially concur with the performance appraisal as submitted, he will make public that appraisal and his own appraisal.
[Emphasis added.]
Although not critical to our findings, we believe this language envisions a performance appraisal of the Louisville Police Chief being made available to the public.
Under the facts here, as we understand them, the Mayor did not make his own appraisal of the performance of the Louisville Police Chief, nor did the Director of Public Safety. There was therefore, nothing for the performance appraisal prepared by the Police Administration Advisory Committee to be considered as preliminary recommendations or a preliminary memorandum to. Accordingly, the appraisal could not be properly characterized as "preliminary recommendations, " or as a "preliminary memorandum, " within the meaning of KRS 61.878(1)(h). Denial of inspection of the performance appraisal thus was not proper, and was inconsistent with KRS 61.870 to 61.874.
In
City of Louisville v. Courier-Journal, Etc., Ky. App., 637 S.W.2d 658 (1982), at 659, the Court observed, regarding investigative reports of the Internal Affairs Unit of the Louisville Police Department, that:
. . . Internal Affairs . . . 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.
[Emphasis added.]
The Internal Affairs Reports in City of Louisville were preliminary recommendations to the final decision of the Chief of Police in a disciplinary matter. We believe the "final decision" in City of Louisville may be equated with an appraisal of the performance of the police chief prepared either by the Director of Public Safety, or the Mayor. Once the time for these officials to prepare appraisals passed (without an appraisal having been prepared and released to the public), any preliminary character within the meaning of KRS 61.878(1)(h), the Committee's appraisal might have had, expired.
The people have a vital interest in the performance of the top leadership of police departments. Such interest is reflected in the City's Ordinance 117, supra, which, as we noted, we believe calls for public issuance of an appraisal of the performance of the Police Chief. Their right (and the right of the press) to inspect an appraisal of the performance of the Police Chief, may not be denied upon the whim of non-decision. In denying inspection of a record upon the ground it constituted preliminary recommendations, or a preliminary memoranda, when it was not preliminary to a substantive decision (here a performance appraisal of the Louisville Police Chief), and thus was not preliminary to anything, the City of Louisville failed to act consistent with KRS 61.870 to 61.884.
The City of Louisville should promptly arrange for inspection of the appraisal in question by the Courier-Journal or its representatives.
Inspection of "addenda, letters, and other documents" pertaining to the appraisal must be permitted if they are adopted by the appraisal. If they have not been, inspection of such records must be permitted unless inspection may be properly denied pursuant to exceptions set forth in KRS 61.878.
The City of Louisville may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.
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