Request By:
Mr. Reginald L. Thomas
General Counsel
Kentucky State University
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As attorney for Ms. Debra Kay Feroze, Mr. Roland P. Merkel has appealed to the Attorney General pursuant to KRS 61.880 your denial of his client's April 27, 1991, request to inspect a document in the possession of Kentucky State University. That document is identified as the Findings and Recommendations submitted by the University's Grievance Committee to the President at the conclusion of a hearing requested by Ms. Feroze and held on April 4, 1991.
You denied Mr. Merkel's request on May 2, 1991, relying on KRS 61.878(1)(h), the exception typically invoked for preliminary documents. In your response, you observed:
Kentucky State University Staff Personnel Policy and Procedure provides that the findings of fact and recommendations of a Grievance Hearing Committee are to be submitted to the University President for review and that it is the President who renders the final decision to the grievant . . . University policy thus stipulates that the determination of a Grievance Hearing Committee is preliminary in nature only and that the final outcome of any grievance hearing is vested with the President.
(Emphasis in original.)
In his letter of appeal to this Office, Mr. Merkel argues:
The Findings and Recommendations of the Grievance Committee are not 'preliminary' investigative materials as that term is contemplated under subdivisions (1)(g) and (1)(h) of KRS 61.878. This is a final document issued by the fact finders of the grievance. These Findings and Recommendations were referred to, adopted and incorporated by President Smith in her letter to Mrs. Feroze and formed the integral basis of the University's decision. Not only is such document not a preliminary investigate [sic] material, but had it been a preliminary document it would had [sic] lost such status as KSU adopted it as its final action. Such document then becomes open for public inspection (OAG 89-69).
In a letter of response, dated May 8, 1991, you maintain that "[A] close look at the final decision of Interim President Mary L. Smith reveals that President Smith did not incorporate the recommendations and opinions of the staff grievance hearing committee but gave her own reasons in reaching her decision."
Mr. Merkel asks that we review the denial of Ms. Feroze's request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you improperly denied the request.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1)(h) authorizes nondisclosure of records containing "[P]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." The courts, and this Office, have interpreted these provisions on a number of occasions. A review of these opinions demonstrates that although such preliminary records are generally exempt under the open records law, their preliminary status is lost to the extent that they are used in an agency's response and are thus adopted as part of its final action.
City of Louisville v. The Courier-Journal & Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953 (1983); OAG 83-41; OAG 89-69.
In City of Louisville, supra, the Kentucky Court of Appeals held that subsections (g) and (h) authorized nondisclosure of a report prepared by the Internal Affairs Unit of the Louisville Police Department regarding citizen complaints against a police officer. The court reasoned:
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 recommendation as part of his final action, clearly the preliminary characterization is lost to that extent .
City of Louisville, supra, at 659. (Emphasis added.) The court reached the same result in Kentucky State Board of Medical Licensure, supra, holding:
[T]hose documents defined in subsections (g) and (h) which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records under subsection (f) [relating to records of agencies involved in administrative adjudications], unless exempted by other provisions of KRS 61.870 through KRS 61.884.
Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under subsections (g) and (h) of the Act.
Kentucky State Board of Medical Licensure, supra, at 956. (Emphasis added.)
This Office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agencies' final action may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 91-23. Any such documents that are incorporated into final agency action, however, are public records and must be released. OAG 83-41; OAG 89-69.
In OAG 89-69, we held that the Natural Resources and Environmental Protection Cabinet improperly denied a request to inspect a memorandum prepared for the Division of Air Quality by the Cabinet's Department of Law. We held that the memorandum was not a preliminary document within the meaning of KRS 61.878(1)(g) or (h). At page 3 of that opinion, we noted:
This office has reviewed both the legal memorandum and the notice of agency action appearing in the Eddins-Gale letter. It is plain to see that the Cabinet did adopt what was orginally a preliminary memorandum as part of its final action. The Eddins-Gale letter not only refers to the memorandum, but clearly implies that its recommendations are being adopted by the Cabinet for the action taken. The letter states that the memorandum had been requested, that it was now 'in hand,' what was the recommendation, and that '[t]herefore' the Cabinet would expect Ashland to comply with the memorandum's recommendations.
We have examined the letter issued to Ms. Feroze in which President Smith renders her final decision. Contrary to your assertions, it is apparent that the President adopted the Committee's report in reaching this decision. In paragraph two, she states:
The Committee has submitted its findings and has concluded that no evidence was found to substantiate a discriminatory act in violation of University fair employment rules and regulations relating to you. In addition, the report did not prove that there was violation of basic University personnel policies.
She then indicates that in accordance with personnel policy requiring her to review the Committee's recommendation and render a final decision, she will instruct the Director of Personnel to provide Ms. Feroze with an explanation of lateral transfers, and to thenceforth take a more active role in transfer requests.
Clearly, President Smith adopted the recommendations of the Committee in concluding that no violations of personnel policy had occurred, and thereafter attempted to concilate Ms. Feroze by requiring the Director to explain those policies to her. She did not order that any remedial action be taken. Nor did she offer any other explanation for her decision, or reject the findings and recommendations of the Committee. Although President Smith failed to employ any legal "terms of art" in incorporating these findings, it is clear that she adopted the Committee's report, and that the report thereafter lost its preliminary status.
We do not suggest that this holding constitutes a rule of general application for all cases involving grievance hearings. As the courts have previously noted, "controversies under the Kentucky Open [Records] Law must be decided on a 'case by case' basis." Kentucky State Board of Medical Licensure, supra, at 956; City of Louisville , supra, at 660. If the final decision maker adopts the findings and recommendations of a grievance committee, the report is nonexempt; if, on the other hand, the decision maker rejects the findings and recommendations and sets forth other grounds for his or her decision, the report remains exempt as a preliminary document pursuant to KRS 61.878(1)(g) and (h).
Assuming for the sake of argument that the Committee's report were exempt, the University would nevertheless have the option of releasing it. Although the provisions of the Open Records Act requiring disclosure are mandatory, the exceptions are discretionary. Accordingly, an agency can, as a matter of policy withhold exempt records, but no law is violated if the exemption is ignored and the records are released. OAG 80-519; OAG 82-275.
In conclusion, we find that because the Findings and Recommendations submitted by the University's Grievance Committee to the President in the case of Debra Kay Feroze were adopted by the President in her final decision, they are not exempt under KRS 61.878(1)(h).
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Debra Kay Feroze. The University has the right to challenge it by instituting proceedings for injunctive or declaratory relief with 30 days in the appropriate circuit court. KRS 61.880(5).