Request By:
Mr. Kenneth W. Cox
Vice President
Human Resources Manager
Bank One, Lexington, NA
P.O. Box 575
Lexington, Kentucky 40586Mr. William D. Wharton
Executive Director
Lexington-Fayette Urban County Human Rights Commission
162 East Main Street
Lexington, Kentucky 40507-1318
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Lexington-Fayette Urban County Human Rights Commission's Response to Mr. Kenneth W. Cox's July 16, 1992, request to inspect certain documents in the Commission's custody. Mr. Cox is Vice President/Personnel Manager for Bank One, Lexington, NA, and the requested ducuments relate to a complaint of employment discrimination filed with the Commission against Bank One.
On behalf of the Commission, Mr. William Wharton, Executive Director Partially denied Mr. Cox's request in a letter dated July 16, 1992. Although Mr. Wharton released a number of documents, he relied on KRS 61.878(1)(a), (f), (g), (h), (i), and (j), now codified as KRS 61.878(1)(a), (g), (h), (i), (j), and (k) respectively, in denying Mr. Cox's request for:
1. Inter-office memoranda2. Investigator's log 3. Investigator's notes4. Intake questionnaire 5. Charging party's witness statement6. Investigative memoranda7. Final investigative report8. Document analysis sheets 9. Witnessstatements
Since the filing of this appea, Mr. Wharton has indicated his willingness to release the charging part's witness statement, and other witnessstatements. Our review of the Commission's actions is thus limited to the remaining documents.
The question presented in this appeal is whether the Commission's invocation of the cited exceptions to authorize nondisclosure of the requested documents violated the Open Records Act. For the reasons set forth below, we conclude that the documents which were not released were properly characterized as preliminary documents and that the Commission's reliance on KRS 61.878(1)(g) and (h), hereinafter referred to as KRS 61.878(1)(h) and (i), was consistent with the Act. Those exceptions permit an agency to withhold:
(h) Prelimiary drafts, notes, corrspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(i) Preliminary recommendations, and prelimiary memoranda in which opinions are expressed or policies formulated or recommended [.]
In our view, the question raised in this appeal can be likened to the question presented to the kentucky
Court of Appeals in City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (19982), a copy of which is attached. In City of Louisville , the court was asked to determine whether the internal investigative files of the Louisville Police Department were exempt from public inspection under the exemptions for prelimiary documents. The court answered in the affirmative, noting:
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 igts own role, it remains preliminary to the Chief's final decision. Of course, if the Chief sdopts its notes or recommendations as part of his final action, clearly th preliminary characterization is lost to that extent.
City of Louisville , supra at 659. See also,
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953 (1983);
Courier-Journal & Louisville Times Co. v. The University of Kentucky, Ky., 830 S.W.2d 373 (1992); OAG 80-43; OAG 83-41; OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 89-69; OAG 91-23. We believe that the cited authorities are dispositive of this appeal.
When a charge is filed with the Commission, it is assigned to an investigator, who is responsible for collecting evidence and making recommendations relative to the charge in a final investigative report. That report may or may not be adopted by the Executive Director in his letter of determination. In the action before us, the documents which the Commission withheld consist of the investigator's log notes, and memoranda, as well as the intake questionnaire, document analysis sheet, and final investigative report. Like the Internal Affairs Divison of the Louisville Police Department, the investigator for the Commssion does not have authority to issue a binding decision, but acts as a fact finder. Similarly, the documents which he generates in the course of his investigation remain preliminary unless they are adopted by the Executive Director as part of his final action. Here, the Director did not adopt the recommended finding of probable cause, but instead issued a no cause finding. Therefore, the investigator's log, notes, memoranda, intake questionnaire, document analysis sheet, and final report did not lose their internal, preliminary character, and were properly withheld by the Commission. Because KRS 61.878(1)(h) and (i) authorize the nondisclosure of the requested documents, we decline to comment on the applicability of KRS 61.878(1)(a), (g), (j), and (k). It is the opinion of this Office that the Commission's actions were entirely consistent with the Open Records Act.
Pursuant to KRS 61.880(5) and KRS 61.882, Mr. Cox and the Commission may challenge this decision by initiating an action in the appropriate circuit court.