Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex violated the Open Records Act in masking portions of intraoffice memoranda generated in the course of an internal investigation before releasing the memoranda to Gary Wright, senior captain at the Complex, and in withholding in its entirety a letter written by an employee at the Complex. For the reasons which follow, we find that with the exception of four sentences deleted from the memorandum prepared by Ken Dressman and Gerald Howard, the Complex properly masked those portions of the memoranda pursuant to KRS 61.878(1)(a), (i), and (j), and properly withheld the employee's letter, in its entirety, pursuant to KRS 61.878(1)(l), incorporating KRS 197.025 into the Open Records Act.
On January 5, 1998, Mr. Wright requested copies of records identified as follows:
1. The investigation (and all relative documents) conducted by Ken Dressman and Jerry Howard and all relative documents involving inmate Greg "Bucky" Hammond, # 94506, and the allegation that his wife was impregnated at the Luther Luckett Correctional Complex sometime in 1995.
2. Any reports and related documents relative to the pregnancy [sic] and investigation of Inmate Greg Hammond from Deputy Commissioner Tom Campbell or Commissioner Doug Sapp to Warden Berry and/or reports relative to same issues from Warden Berry to Deputy Commissioner Tom Campbell or Commissioner Doug Sapp.
3. The Greg Hammond investigation and relative documents and evidence conducted by former Internal Affairs Officer Lieutenant Phillip Draper, now Captain Phillip Draper, and former Captain Ralph Dailey, now Unit Administrator II.
4. The letter alleged to have been written by Nancy Schrepf to Warden Berry accusing Senior Captain Gary Wright of asking her for a date. The letter allegedly was mailed or sent from Warden Berry to Deputy Commissioner Tom Campbell.
5. Any documentation from Warden Berry which was either sent to Central Office or retained in his office recommending Senior Captain Wright's transfer from LLCC or any other damaging, punitive or negative actions against Senior Captain Wright.
6. Criteria/Regulations governing who is eligible for merit pay raises (Distinguished Service Awards).
In a letter dated January 7, 1998, open records coordinator Cindy Hall notified Mr. Wright that in view of the large number of documents implicated by his request, the need to retrieve them from various offices, and the desire to review them before release, she would issue her final response in two weeks.
On January 22, Ms. Hall released several documents to Mr. Wright. She advised him that portions of the documents identified in requests number 1, 2, and 3 were excluded from inspection pursuant to KRS 61.878(1)(i) and (j) because they contained preliminary recommendations in which opinions were expressed and which were not incorporated into final agency action, pursuant to KRS 61.878(1)(a) because they contained information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and pursuant to KRS 61.878(1)(l) and KS 197.025 (1) because disclosure was deemed to constitute a threat to the security of the correctional staff and the institution. Ms. Hall relied on the latter exception in denying Mr. Wright access to the document identified in request 4 in its entirety, noting:
Due to the nature of the letter and events leading up to and subsequent to the letter, Departmental Administrative Staff are concerned that disclosure of same would provoke actions and or reactions which would interrupt and have an adverse affect on staff, their duties, and the operations of the department/institution.
With respect to his fifth request, Ms. Hall advised Mr. Wright that neither the original nor any copies of records relating to Senior Captain Wright's transfer from the Complex which were sent to central office or housed in Warden Berry's office exist. Ms. Hall explained that the only extant record satisfying this request was the original which was in Mr. Wright's possession. Ms. Hall apparently furnished Mr. Wright with those records identified in his sixth request. Dissatisfied with Ms. Hall's response, Mr. Wright initiated this open records appeal.
In a follow-up letter to this office, Department of Corrections staff attorney Tamela Biggs elaborated on Ms. Hall's response. Reiterating a number of the same points Ms. Hall made, Ms. Biggs cited additional authority for partially denying Mr. Wright access to documents pertaining to the investigation. With respect to a memorandum dated July 18, 1995, from Richard Gray, Internal Affairs, to Warden Berry, Ms. Biggs explained that pursuant to KRS 61.878(1)(a) portions of the record were deleted which referred to correspondence between Mr. Hammond and his wife which Mr. Gray intercepted and read and which revealed intimate details of her medical condition. Pursuant to the same exception, information pertaining to the infant's birth were deleted from Mr. Dressman and Mr. Howard's November 22, 1996, memorandum.
Other portions of Mr. Gray's memorandum were masked pursuant to KRS 61.878(1)(j), as construed in
City of Louisville v. Courier-Journal & Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982), because as an internal affairs investigator Mr. Gray acted as a fact finder and had no authority to impose discipline or take final action. Mr. Gray's work was, Ms. Biggs maintained, "preliminary to the decision made by the Warden."
With the single exception noted above, we affirm Luther Luckett Correctional Complex's partial denial of Mr. Wright's request. Our analysis of each of the arguments advanced by the Complex are summarized below. Before proceeding to our analysis, we make some general observations. KRS 61.878(4) provides:
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 construing this provision, the Attorney General has observed:
All public agencies ? have an affirmative duty to separate exempt material which is commingled with nonexempt material in a public record, and make the nonexempt material available for inspection. An obvious corollary of this proposition is that no request to inspect or copy a public record can be denied on the grounds that exempt material is commingled with nonexempt material.
95-ORD-113, p. 5. Luther Luckett Correctional Complex's decision to redact portions of the requested records was entirely consistent with the cited provision.
Nevertheless, the exceptions codified at KRS 61.878(1)(a) through (l):
are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. An official does not have to be concerned with whether a record should be released or not, but only concerned with whether he may justifiably withhold a record from public inspection.
OAG 79-275, p. 3. Thus, in OAG 79-275, the Attorney General recommended that public officials adopt a policy of openness, only considering the exceptions "when for some reason they desire to withhold the inspection of a record." Id. at 3. The line of cases commencing with
City of Louisville v. The Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982) notwithstanding, Luther Luckett Correctional Complex actually disclosed more than the law, as construed in theses cases, requires. This being the case, we do not agree with Mr. Wright that the Complex should be faulted for redacting those portions of the records containing recommendations and opinions never formally adopted, information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of privacy, and statements the disclosure of which would constitute a threat to the security of the institution.
KRS 61.878(1)(i) and (j)
The facts giving rise to this appeal are similar to the facts which gave rise to the courts decision in City of Louisville , above. There, the Courier-Journal requested access to records relating to a complaint against a police officer, "including records relating to investigations of complaints." Id. at 658. The city denied the request in its entirety based on KRS 61.878(1)(i) and (j), then codified as KRS 61.878 (1)(g) and (h), which exclude from the application of the Open Records Act:
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.
After analyzing the city's position, the court concluded that these exceptions protected the investigative report prepared by internal affairs from being made public. The court reasoned:
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.
Id. at 659, 660.
On the basis of this opinion, it is firmly established that once an investigation is concluded, the document or documents representing final agency action must be disclosed along with the complaint which initiated the investigation. In addition, any notes or recommendation adopted by the agency as part of its final action forfeit their preliminary characterization, and must be disclosed. See also,
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953, 956 (1983) (holding that "documents defined in Subsections [(i)] and [(j)] which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records. ? Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under Subsections [(i)] and [(j)] of the Act");
University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373, 378 (1992) (holding 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").
The Attorney General adopted this position in a series of opinions reaching back to the mid eighties. For example, in OAG 88-85 we considered the underlying purpose of KRS 61.878(1)(i) and (j), observing:
One of the purposes of KRS 61.878(1)[(i) and (j)] appears to us to be to allow the free flow of discussion among governmental officials which is preliminary to the final decision. Consequently recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
OAG 88-85, p. 4. Numerous open records decisions of the Attorney General support this view. See also OAG 90-97; OAG 92-5; 94-ORD-27; 96-ORD-141.
In the appeal before us, Luther Luckett Correctional Complex was asked to produce specifically identified records relating to an investigation into an inmate's alleged activities with his wife while participating in couples counseling at the Complex. The investigation was apparently prompted by an anonymous letter addressed to the Commissioner of the Department of Corrections in 1996. Although certain policies were revised and a department relocated as a result of the investigation, no written record reflecting "final action" was generated by the agency. No letters of reprimand were issued to employees, and no sanctions imposed on the inmate. Accordingly, the Complex produced the anonymous letter along with all of the memoranda created in the course of the investigation, but did not produce a record of final action taken. The Complex did, however, redact portions of the memoranda pursuant to KRS 61.878(1)(i) and (j), asserting that the excluded material represented the opinions and recommendations of the investigators which was not incorporated into final agency action.
Final action must, in our view, be inferred from the remedial measures taken as a result of the investigation. As noted, these measures consisted of the revision of policies relating to couples counseling and the relocation of the psychology department. Based on the authorities cited above, we find that Luther Luckett Correctional Complex properly responded to Mr. Wright's open records request by releasing the anonymous letter since it was the functional equivalent of the complaint which spawned the investigation. Because no record reflecting final agency action in these matter was produced, the Complex was unable to release such a record. Nevertheless, the Complex released internal investigative memoranda produced by Richard Gray, Phillip Draper and Ralph Dailey, Ken Dressman and Gerald Howard, and Tom Campbell which, arguably, could have been withheld under KRS 61.878(1)(i) and (j) since they were never incorporated into final action.
Our review of these memoranda confirms that the material which was redacted under authority of these exceptions was composed of opinions expressed by employees interviewed at the Complex, as well as the authors of the memoranda, on matters related to, and in some instances entirely unrelated to, the subject of the investigation. The Complex also redacted some of the recommendations made by these individuals which were tangential to the investigation or not incorporated into final agency action. For these reasons, we conclude that the redacted material falls squarely within the exception codified at KRS 61.878(1)(j) insofar as it consists of "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended" which were not incorporated into final action.
We find, however, that the Complex erred in withholding four sentences which appear in the Dressman/Howard memorandum to Doug Sapp dated November 22, 1996. In paragraphs one and three on page eight of that memorandum, Mr. Dressman and Mr. Howard recommend that the Psychological Services program be moved from the Administration Building, and that security policies be revised for Psychological Services. These sentences were improperly redacted since the recommendations made were ultimately implemented as final agency action. Luther Luckett Correctional Complex should immediately arrange for Mr. Wright to inspect page eight of this memorandum with these sentences unredacted.
KRS 61.878(1)(a)
We affirm Luther Luckett Correctional Complex's decision to redact portions of Richard Gray's memorandum to Warden Berry dated July 18, 1995, and the Dressman/Howard memorandum on the basis of KRS 61.878(1)(a). That exception authorizes the nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In determining whether a public agency has properly invoked the privacy exception, the courts have observed:
Our analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Citation omitted.] As the Supreme Court noted, the circumstances of a given case will affect the balance.
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994) citing
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). Continuing, the Zink court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the legislature clearly intended to grant any member of the public as much right to [sic] access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink at 828, 829. In those cases where there is a significant privacy interest in the information sought, and disclosure of the information will "reveal [] little or nothing about an agency's own conduct," the privacy interest will prevail. Zink at 829.
The information at issue in this appeal pertains to inmate Hammond's wife's pregnancy and the birth of her child. Much of the information was obtained from letters written by Mrs. Hammond to her husband in confidence, and clearly "touches upon the most intimate and personal features of private lives." Board of Examiners at 328. In view of the circumstances under which the information was communicated, and the sensitive nature of the information, we find that the material redacted under authority of KRS 61.878(1)(a) contained "details in which an individual has at least some expectation of privacy." Zink at 828. While Mr. Hammond may have forfeited his privacy to a certain extent when he "enter[ed] on the public way, [broke] a law, or inflict[ed] a tort," we do not believe that Mrs. Hammond or the child forfeited their rights of privacy by virtue of his misdeeds. Zink at 828 citing OAG 76-511.
With respect to the second part of the privacy analysis, we find that no public interest would be served by disclosure of details pertaining to Mrs. Hammond's pregnancy and the birth of the child. Disclosure of this information "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." Zink at 829. The public's interest here is confined to the alleged improprieties at Luther Luckett and Luther Luckett's response to and handling of those improprieties. Inasmuch as "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity," we conclude that Luther Luckett Correctional Complex properly redacted those portions of the records pertaining to Mrs. Hammond's pregnancy and the birth of the child. Board of Examiners at 328.
KRS 61.878(1)(l) and KRS 197.025(1)
Luther Luckett Correctional Complex denied Mr. Wright access to one record in its entirety based on KRS 61.878(1)(l) and KRS 197.025(1). That record was a letter written by Nancy Schrepf, an employee at Luther Luckett, concerning an incident which allegedly occurred in 1997. In denying the request, the Complex argued that "release of [the letter] could be misconstrued or utilized in such a manner that management and security staff could be undermined or discredited: therefore, the security exception of KRS 197.025 is . . . being invoked to exclude this information."
KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
This provision operates in tandem with KRS 197.025(1) to exclude from the application of the Open Records Act records the disclosure of which would represent a threat to institutional security. KRS 197.025(1) thus provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the department [of corrections], shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
This provision, which at first glance might be assumed to prohibit inmate access to records of a correctional facility only, is in fact broadly worded to include all persons, including facility staff. It vests the commissioner or his designee with far-reaching discretion to deny a records request under the circumstances described.
In denying Mr. Wright's request for the letter written by Nancy Schrepf, the Complex expressed concern for the continued efficacy of the management and security staff in the discharge of their official duties if information contained in the letter was circulated and misconstrued. As we noted at page 3 of 97-ORD-25, "This office is not in a position to second guess the Department or to conclude that it abused its discretion on the basis of the facts as presented in this appeal." Our review of the letter, coupled with the explanation offered by the Complex, support the need to withhold the record pursuant to KRS 197.025(1).
Nonexistent records
We note, with some concern, the apparent failure of Luther Luckett Correctional Complex to adequately document its essential transactions and to effectively manage its public records. Specifically, we refer to the nonexistence of a record reflecting final agency action in the matter of the Hammond investigation, and the inability to locate records relating to Captain Wright's transfer from the Complex. While we do not find that the Complex violated the Open Records Act in failing to produce nonexistent records, we believe that this appeal raises serious records management issues. We have therefore referred the matter to the Department for Libraries and Archives for review under Chapter 171 of the Kentucky Revised Statutes.
Authority for our decision to refer these issues to the Department is derived from KRS 61.8715. That statute provides:
The General Assembly finds an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are require to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.
In construing this provision, the Attorney General has observed:
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10.
Pursuant to KRS 171.640, it is incumbent on state and local agencies to:
cause to be made and preserved records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities. Such documentation shall be created, managed, and preserved in accordance with standards, rules and regulations prescribed by the department under the provisions of KRS 171.410 to 171.740.
This office has expressly held that the failure to create a record or establish an adequate records management system does not constitute a violation of the Open Records Act. Thus, in 95-ORD-48, we observed:
We decline the invitation to invade the prerogative of public agencies in determining, "in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives," what records they must create. KRS 171.640. We ? affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude ? the Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act.
95-ORD-48, p. 4.
As noted, the law assumes that records will be created and managed in accordance with guidelines established by the Department for Libraries and Archives under Chapter 171. Although the Attorney General is not empowered to address the issue of records creation, the Department clearly is. We have therefore referred this matter to the Department for a determination whether additional inquiries are warranted under Chapter 171.
Conclusion
It is the opinion of this office that with the single exception noted above, Luther Luckett Correctional Complex properly redacted portions of the records identified in Mr. Wright's request, and properly withheld the letter written by Nancy Schrepf in its entirety. The issue of disclosure of records pertaining to Mr. Hammond's transfer from the Complex is not ripe for review by this office since Mr. Wright did not ask for these records in his January 5, 1998, request. Nevertheless, we note that these records were released to Mr. Wright on February 17, 1998, thereby mooting the issue for purposes of future appeals. With regard to the records management issues which this appeal raises, we have referred the matter to the Department for Libraries and Archives for appropriate action.
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.