Request By:
Mr. Kevin Winstead
Assistant Director of Law
City of Louisville
Department of Law
City Hall, Room 200
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Jon L. Fleischaker has appealed to the Attorney General pursuant to KRS 61.880 your denial of the request by Clarence L. Matthews, reporter for the Courier-Journal, to examine and copy any "citizen complaints" received by the Department of Safety of the City of Louisville for three Division of Fire employees, Larry B. Mialback, Michael J. Gramig and Roger A. Henderson.
Clarence L. Matthews requested the opportunity to examine and copy these "citizen complaints" by letter dated June 26, 1990. In your letter of partial denial, you stated as follows:
Your request for review of citizen complaints is granted only insofar as it pertains to such complaints which led to final disciplinary action. Any complaints that did not lead to final disciplinary action are exempt from disclosure under KRS 61.878(g) and (h) because they are preliminary in nature. Only final disciplinary actions, along with the complaints that led to such action, are not exempt under KRS 61.878; any other materials are preliminary recommendations or memoranda or are part of the preliminary process leading up to the final action. In addition, KRS 61.878(a) exempts from disclosure those records that are personal in nature where disclosure would be a clearly unwarranted invasion of personal privacy. This privacy exemption applies to complaints where no final disciplinary action has been taken on that complaint.
Jon L. Fleischaker, an attorney with Wyatt, Tarrant & Combs, filed an appeal of this denial on behalf of Clarence L. Matthews and the Courier-Journal by letter dated June 11, 1990. Jon L. Fleischaker argues that "citizen complaints" are not exempt from disclosure, relying in part upon the authority of Kentucky State Board of Medical Licensure v. The Courier-Journal & Louisville Times Company, Ky.App., 663 S.W.2d 953 (1983) and City of Louisville v. The Courier-Journal & Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982). Jon L. Fleischaker has requested this Office to issue an opinion that the City of Louisville has not acted consistent with the provisions of KRS 61.870-61.884 and that the records are being wilfully withheld pursuant to KRS 61.882(5).
The undersigned Assistant Attorney General talked with you concerning this appeal by telephone on July 18 and 24, 1990. You indicated that there is only one document that might be construed as a "citizen complaint" involving the three Division of Fire employees. You also sent a response to the Open Records Appeal by telefax which was received by this Office on July 24, 1990. At my request, you sent me a copy of specific documents including the one page document for which you denied inspection pursuant to KRS 61.880(2) which was received by this Office on July 25, 1990.
OPINION OF THE ATTORNEY GENERAL
"Citizen complaints" are open to public inspection after a public agency completes its enforcement action or makes a decision to take no such action, at which time the complaints minus the complainants' names must be made available for public inspection. OAG 85-126 and OAG 85-136. [Copies enclosed. ] It is well settled that written complaints by citizens which spawn an investigation by a public agency are not exempt from disclosure once final action is taken by that agency. Kentucky State Board of Medical Licensure v. The Courier-Journal & Louisville Times Company, Ky.App., 663 S.W.2d 953 (1983); City of Louisville v. The Courier-Journal & Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982).
Inspection of the one page document for which you have denied inspection reveals that it is not a "citizen complaint" as implied in your letter of denial to Clarence L. Matthews. This document is an intra-office memorandum from an employee of the Division of Fire to another employee of the Division of Fire in which oral allegations by a citizen against a Division of Fire employee is reported and includes an expression of an opinion as to the implication of the citizen's oral allegations. This preliminary intra-office memorandum apparently resulted in a subsequent investigation after which a recommendation was made concerning this citizen's oral allegations. No disciplinary action has been taken against this employee.
The issue raised in this Open Records Appeals is controlled by a previous opinion of this Office in which it was stated as follows:
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 therefore] is excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
[OAG 86-78, p. 4.] [Bracketed language added and copy of opinion enclosed. ]
It is the opinion of this Office that the document for which you have denied inspection is exempt from public inspection pursuant to KRS 61.878(1)(g) and (h). However, your letter of partial denial failed to include a sufficient "explanation of how the exception applies to the record withheld" as required by KRS 61.880(1) and failed to explain that the document for which you were denying inspection was not a "citizen complaint." Future letters of denial should comply with the requirements of KRS 61.880.
Your response to this Open Records Appeal by Jon L. Fleischaker states there has been no final decision involving the investigation of the verbal allegations of the citizen against the Division of Fire employee. However, your letter of partial denial did not rely upon KRS 61.878(1)(f) as justification for denying inspection of the document in question. Furthermore, Clarence L. Matthews did not request to inspect copies of recommendations or final reports involving a decision not to take any action. Therefore, this Office declines to decide whether a final decision has been made or whether reports or recommendations on this matter are open to public inspection. However, should this issue arise in the future, you may wish to consider OAG 86-80. [Copy enclosed. ]
Your response to this Open Records Appeal also addresses the "privacy exception" to public records provided by KRS 61.878(1)(a). It is the opinion of this Office that the privacy exception of KRS 61.878(1)(a) is not applicable to this situation for the reasons set forth in OAG 88-25. [Copy enclosed. ] The privacy of any complainant can be protected by deleting the complainants' name from documents which are made available. See OAG 85-126 and 85-136. [Copies enclosed. ] A decision to take disciplinary action or not to take disciplinary action against a public employee for actions related to that employee's job performance is a matter about which the public has a right to know and does not constitute "a clearly unwarranted invasion of personal privacy" of that public employee.
This Office refrains from opining on whether the records were wilfully withheld pursuant to KRS 61.882(5). This is a determination that may be made by an appropriate circuit court in the event of an appeal. Clarence L. Matthews or the Courier-Journal may institute proceedings within thirty (30) days for injunctive or declaratory relief in the circuit court of the district where the public records sought for inspection are maintained pursuant to KRS 61.880(5).