Request By:
IN RE: John Fritz/Lexington Fayette Urban County Government
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 Government's partial denial of Mr. John Fritz's October 1, 1992, request to inspect certain documents in the agency's custody. Those records are identified as:
1. Each 'LFUCG Div. of Police Divisional Complaint' [an official form] and all attachments, if any, filed by citizens from January 1, 1990 to [October 1, 1992].
2. Each letter (from Chief Walsh to each citizen who filed a complaint using the 'LFUCG Div. of Police Divisional Complaint' form) informing the citizen of the final disposition of the case, from January 1, 1990 to [October 1, 1992].
3. Each letter, described in paragraph 2 hereinabove, on file in the office of the Commissioner of Public Safety (now Mr. J. Famularo) from January 1, 1990 to [October 1, 1992].
4. The investigative file concerning my complaint against Officer S. L. Davis as referenced in Chief Walsh's letter to [Mr. Fritz] dated 9-18-92.
5. S. L. Davis' response to [Mr. Fritz's] complaint and all statements made by him with regard to [Mr. Fritz's] complaint referenced in paragraph 4 hereinabove.
6. Robert E. Howard, Jr.'s response to [Mr. Fritz's] complaint and all statements made by him with regard to [Mr. Fritz's] complaint referenced in paragraph 4 hereinabove.
On behalf of the Lexington-Fayette Urban County Government, Ms. Theresa L. Holmes, Corporate Counsel, responded to Mr. Fritz's application. In a letter dated October 5, 1992, Ms. Holmes advised Mr. Fritz that he was entitled to review all formal complaints sworn to by complainants on Division of Police Form 111, including letters from Chief Walsh to the complainants informing them of the final disposition of their complaints, if the complaints were closed. However, she denied his request for the addresses and phone numbers of the complainants. Relying on KRS 61.878(1)(a), Ms. Holmes argued that such information is personal and is therefore exempt from inspection.
Ms. Holmes also declined to release the letters from Chief Walsh to complainants which were also on file in the Office of the Commissioner of Public Safety, observing:
[R]equiring the government to pull investigative files in two separate offices for copies of the same letter, as your request for copies of Chief Walsh's letters in Commissioner Famularo's files would require, is unduly burdensome.
Relying on KRS 61.872(6), she refused to provide him access to the Commissioner's files. In addition, Ms. Holmes denied Mr. Fritz's request for access to the investigative file compiled in the process of investigating his complaint. It was her position that the file consists of preliminary documents exempt from public inspection pursuant to KRS 61.878(1)(h) and (i), citing City of Louisville v. Courier Journal & Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982).
In his letter of appeal to this Office, Mr. Fritz argues that addresses and phone numbers of complainants are not protected by the privacy exemption. In support of his argument, he notes that the police department routinely releases the addresses of citizens who file criminal complaints as well as the addresses of individuals who are arrested. Continuing, he observes that in their police log features, both the Lexington Herald-Leader and the Kentucky Kernel publish the names of citizens who have filed criminal complaints.
Moreover, since the vast majority of citizen phone numbers are published numbers, they can not properly be treated as information of a personal nature. He therefore believes that the names, addresses, and phone numbers of complainants do not become "personal information" simply because the complaint is a Division of Police Form 111 filed against an officer of the government.
With respect to Ms. Holmes' denial of his request for the file generated in the course of the investigation into his complaint against Officer S. L. Davis, Mr. Fritz maintains that Chief Walsh's letter to him dated September 18, 1992, a copy of which is attached to his appeal, disposed of the case. He argues that the letter "adopted by reference thereto the following material which is expressly stated to be the basis of the Chief's final action on [his] complaint: (a) [his] statement, (b) the sought after statement of Officer S. L. Davis, and (c) 'other information.'" (Emphasis in original.) Mr. Fritz submits that any information adopted by the Chief of Police as the basis of his final disposition of the case must be disclosed under the rule announced in City of Louisville, supra, and Kentucky State Board of Medical Licensure v. Courier-Journal & Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983). He cites these cases in further support of his position that the names of witnesses which appear in the complaints are also subject to disclosure. He does not, however, object to Ms. Holmes' invocation of KRS 61.872(6) to authorize her refusal to release Chief Walsh's letters to complainants on file in the Office of the Commissioner of Public Safety.
We are asked to determine if the Lexington-Fayette Urban County Government properly denied Mr. Fritz access to the home addresses and phone numbers of complainants and witnesses which appear on Division of Police Form 111's filed between January 1, 1990, and October 1, 1992, pursuant to KRS 61.878(1)(a). In addition, we must determine if the Urban County Government properly relied on KRS 61.878(1)(h) and (i) in denying him access to the investigative file prepared by Internal Affairs relative to his complaint against Officer S. L. Davis, including his complaint, his statement, and the statement of Officer S. L. Davis. For the reasons set forth below, we conclude that the Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(a) in denying Mr. Fritz's request for the home addresses and phone numbers of complainants and witnesses, and in relying on KRS 61.878(1)(h) and (i) in denying his request for the entire investigative file relating to his complaint. However, it is the opinion of this Office that the Urban County Government must release those documents expressly adopted by Chief Walsh in his letter to Mr. Fritz notifying him of his final action in this matter, specifically, his statement and the statement of Officer S. L. Davis.
This Office, and the courts of the Commonwealth, have consistently held that complaints which initially spawned an investigation may not be excluded from inspection because the public has a right to know what complaints have been made and the final action taken. City of Louisville, supra; Kentucky State Board of Medical Licensure, supra, OAG 83-332; OAG 85-77; OAG 85-144; OAG 86-46; OAG 87-32; OAG 91-160. Although Ms. Holmes demonstrated her willingness to allow Mr. Fritz access to the complainants' and witnesses' identities, we have just as consistently held that such information may also be withheld from public inspection, except upon court order, pursuant to KRS 61.878(1)(a). OAG 84-315; OAG 85-126; OAG 85-136; OAG 86-60; OAG 89-52; OAG 90-12; OAG 91-160.
It is instructive to quote, at length, an earlier opinion in which this question was raised. In OAG 84-315, we reasoned:
[A]lthough in City of Louisville and Kentucky State Board of Medical Licensure, supra, the Court of Appeals stated that complaints spawning an investigation are open once final action is taken, neither opinion discussed the release of the complainant's name. This question apparently was not considered by the Court.
Second, the standard applied to the KRS 61.878(1)(a)privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. Additionally, the complainant's identity is protected by the Department's policy of keeping complainant's names confidential. This policy is illustrative of the chilling effect which could occur if this information was open to public inspection.
It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant's name would effectively chill any reporting of violations to the [public agency] . . . . Release of the complaint with the complainant's name deleted would effectively protect the complainant while allowing the party againt whom the complaint is made access to information concerning the alleged violation which resulted in agency action. Pursuant to KRS 61.878(4), it is therefore our opinion that the citizen's complaint should be released (since final action has taken place) but the name of the complainant should be deleted pursuant to KRS 61.878(1)(a).
Under the rule announced by this Office in previous opinions, Ms. Holmes could have refused to disclose the complainants' and witnesses' names. Although she elected to release this information, she is certainly not prohibited from withholding the home addresses and phone numbers of these individuals.
This Office has consistently recognized that an individual has a substantial privacy interest in his home address and telephone number. OAG 76-717; OAG 80-432; OAG 82-234; OAG 82-506; OAG 84-51; OAG 90-19. We can identify no substantial public interest which would be served by the disclosure of this information. In balancing the privacy rights of the individuals against the public's right to know whether its agencies are properly executing their statutory functions, Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992), we believe that the right of privacy prevails in this case. Disclosure of the complaints with the addresses and phone numbers of the complainants and witnesses redacted could be relevant in determining whether the Division of Police faithfully performed its duty in investigating and disposing of complaints against its officers.
Turning to the second question raised by Mr. Fritz in this open records appeal, we find that the Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(h) and (i) in denying him access to the file compiled by the Division of Police in investigating his complaint, with the exception of his statement and the statement of Officer S. L. Davis. KRS 61.878(1)(h) and (i) authorize the nondisclosure of:
(h) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(i) Preliminary 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 preliminary records, including investigative files, are generally exempt under the Open Records Law, unless they are adopted as part of an agency's final action, and their preliminary status is lost. City of Louisville, supra; Board of Medical Licensure, supra, OAG 83-41; OAG 89-69; OAG 90-90.
In City of Louisville, supra, the Kentucky Court of Appeals held that subsections (h) and (i) 1 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 recommendations 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 [h] and [i] 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 [g] 2 [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 [h] and [i] 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)(h) and (i). OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 92-23. 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)(h) or (i). 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 originally 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 Chief Walsh's letter to Mr. Fritz in which the Chief renders his final decision. It appears that he relied on Mr. Fritz's and Officer Davis' statements in reaching his decision to close the case. In paragraph two, he states:
After reviewing your [Mr. Fritz's] statement, the statement of Officer S. L. Davis, as well as other information, I have determined that the case be administratively closed.
Although the Chief did not employ any legal "terms of art" in incorporating these statements, it is clear that he relied on them. The statements thereafter lost their preliminary status.
We do not believe this reasoning can be extended to the rest of the investigative file. Although Chief Walsh states that he reviewed "other information," it is not clear if any or all of that information was contained in the file. Simply stated, the Chief did not adopt the entire investigative file as part of his final action, and the documents in that file, other than Mr. Fritz's and Office Davis' statements, were properly characterized as preliminary documents.
Mr. Fritz and the Lexington-Fayette Urban County Government may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes