Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Kentucky State Police's denial of Lexington Herald-Leader reporter Valarie Honeycutt's undated request to inspect "all documents concerning the Kentucky State Police internal investigation into the Eric Keith Tapp case out of the Hazard post." On August 5, 1997, Diane H. Smith, official custodian of records for the State Police, denied Ms. Honeycutt's request, advising her that there is no Internal Affairs investigation concerning this case. Ms. Smith explained that there is a "use of force" inquiry, but that record is exempt pursuant to KRS 61.878(1)(i) "because it contains preliminary inter-office memoranda that express the opinion of the investigators. " The question presented in this appeal is whether the Kentucky State Police properly relied on KRS 61.878(1)(i) in denying Ms. Honeycutt's request. For the reasons which follow, we conclude that the State Police improperly denied the request.
Responding to the Herald-Leader's appeal, the State Police explained:
Those internal administrative inquiries categorized as "Use of Force" are maintained in the Internal Affairs Section as they are the result of an internal investigation or inquiry of possible violations of an administrative rule or regulation. "Use of Force" inquiries stem not from a formal complaint per se, (as do those internal investigations categorized otherwise), but from the occurrence itself.
. . .
A "Use of Force" internal inquiry is not subject to disclosure under the Open Records Act. . . . The specific purpose of a "Use of Force" internal investigation is to determine whether the use of force, (physical or otherwise), was justified under existing law, policy and procedure. This internal affairs investigation is merely categorized differently from those Internal Affairs investigations stemming from a formal complaint. However, the mode of investigation and reporting are identical. The "Use of Force" internal investigation is automatically initiated upon the occurrence. An investigation is then conducted consisting of taking witness statements, review of evidence, etc. Once the investigation is complete, a report is prepared detailing the investigation and including the investigator's opinions and recommendations. This report, along with any other accompanying documents such as witness statements or other evidentiary items, is forwarded, through the chain of command, to the Commissioner for his review. Upon the Commissioner's direction, a document is then prepared by the Commander of Internal Affairs stating whether the final determination is that the use of force was justified or unjustified.
Relying on KRS 61.878(1)(i) and (j), misidentified by both the State Police and the Herald-Leader as KRS 61.878(1)(h) and (i), the State Police argue that the report is a preliminary memorandum in which the investigator's opinions are expressed, and is exempt from public inspection. Based on the Court of Appeal's and Supreme Court's interpretation of these exceptions they maintain that, "only the underlying complaint, of which there is none, and the report indicating final action are open to public inspection. " Final action, they assert, is reflected in the May 15, 1997, memorandum prepared by the Commander of Internal Affairs at the Commissioner's direction, which they now acknowledge their obligation to release. This single page document, addressed to "File," from the Commander, on the subject "Use of Force-Justified," identifies the trooper involved, his employment status, the date of the incident, and the name of the individual involved. It has been furnished to the Herald-Leader.
The courts and this office have devoted considerable time and energy to interpreting KRS 61.878(1)(i) and (j). These provisions authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Applying these exceptions to an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Kentucky Court of Appeals observed:
It is the opinion of this Court that subsections [(i)] and [(j)] quoted above protect the Internal Affairs reports from being made public. 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 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.
This holding, however, is limited to Internal Affairs' involvement. We do not find that the complaints per se are exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. We acknowledge that it is possible that these complaints could be afforded continuing exemption under subsection [(i)] relating to preliminary correspondence with private individuals; however, that determination would be made upon consideration of the facts on a case-by-case basis and would be dealt with under KRS 61.878[(4)]: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)[(i)]. This does not extend to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon.
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659, 660 (1982) (emphasis added).
This position was reaffirmed one year later in a case involving public access to complaints against physicians licensed by the state licensure board. In Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1983), the Court of Appeals determined that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once final action is taken by the board. With respect to letters, correspondence, and reports compiled by the board, the Court commented:
If these documents were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status. Id. at 659. The trial court found that:
Board of Medical Licensure at 956, 957 (emphasis added).
Nine years would pass before the courts revisited this issue in a published opinion. In University of Kentucky v. Courier-Journal & Louisville Times Company, Ky., 830 S.W.2d 373, 378 (1992), the Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." (Emphasis added.) In the intervening years, the Attorney General applied the principle in various contexts. See, e.g., OAG 83-405 (final orders of Unemployment Insurance commission open to public inspection as evidence of final agency action) ; OAG 84-98 (decision of fiscal court on industrial revenue bond issue open to public inspection if it represents final action) ; OAG 89-69 (legal memorandum adopted as part of Natural Resources and Environmental Protection Cabinet's final action is open for inspection) ; and OAG 88-25 (complaint and final action relating to investigation of school system employee misconduct must be released, as well as investigative materials incorporated therein). These opinions were premised on the notion that:
93-ORD-103, p. 11.
The Kentucky State Police correctly state the rule of law set forth in the court decisions and Attorney General's opinions noted above, but interpret the rule too broadly. KRS 61.871 provides "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." Thus, the Open Records Act "exhibits a general bias favoring disclosure." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 327 (1992). Clearly then, the exceptions to public inspection codified at KRS 61.878(1)(a) through (j) should be given no broader application than is necessary to effectuate their purposes.
The Kentucky State Police maintain that a use of force inquiry is identical, in all material respects, to an internal affairs investigation, but that because it is categorized differently, and is "initiated upon the occurrence" rather than upon a complaint, it is excluded from public inspection except for the memorandum drafted by the Commander of Internal Affairs at the Commissioner's direction. We do not agree.
The cases and opinions cited above establish that an internal affairs report can not be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports. The purpose for which KRS 61.878(1)(i) and (j) were enacted, namely to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken. This rule extends to use of force inquiries.
It is the opinion of this office that the Kentucky State Police improperly withheld the use of force inquiry into the Eric Keith Tapp case, consisting of the four page internal affairs memorandum dated April 29, 1997, the April 29, 1997, memorandum prepared by the state trooper about whom the inquiry was made, the seven uniform citations prepared by the trooper relative to Mr. Tapp's arrest, and the May 15, 1997, memorandum which has already been released. Because the occurrence triggers the inquiry, the report itself represents the initiating document. Because the final decision maker, here the Commissioner, signals his concurrence with the investigator's findings and recommendations on the report, that report is physically incorporated into his final decision relative to the inquiry, and forfeits its preliminary characterization. Clearly, the Commissioner adopted the report, in its entirety, when he signed off on the document and affirmed its conclusions. The State Police cannot avoid the mandate of the Open Records Act by directing the creation of a separate record which is devoid of any facts pertaining to the incident and the recommendations upon which the Commissioner relied in reaching his decision. It is not this document which reflects final action. Rather, it is the memorandum to which the Commissioner affixed his signature, reflecting his concurrence.
Assuming for the sake of argument that after reviewing the memorandum the Commissioner had disagreed with the recommendations made, he would have presumably prepared a separate memorandum noting his disagreement and stating the reasons for his ultimate conclusion that the use of force was unjustified. If this had been the case, the Commissioner's memorandum would have represented final agency action, and would have been subject to disclosure. Because the Commissioner adopted the findings and recommendations of the investigating officer by affixing his signature to the report, the investigative materials that were once preliminary in nature lost their exempt status.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.