Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky State Police's (KSP) response to WHAS-TV reporter Mark Hebert's open records request to inspect "the disciplinary actions involving Trooper Doug Asher, Jr. since April 11, 1997. Please include the original complaints, recommendations, final actions, and basis for those documents."
In response to Mr. Hebert's request, the KSP provided the initial complaints and final dispositions for two internal affairs investigations involving the trooper. In denying the request for the entire internal affairs investigative file, Diane H. Smith, Official Custodian of Records, KSP, stated:
The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to particular provision. KRS 61.878(1)(k) exempts records made confidential by separate statute. An internal affairs investigation contains preliminary drafts and notes, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. These documents are exempt from the Open Records Law pursuant to KRS 61.878(1)(h)(l). Therefore, your request for the entire internal affairs investigation(s) is denied. We also rely on OAG 86-22, OAG 86-78, OAG 83-425 and OAG 84-118.
In his letter of appeal, Mr. Hebert states the KSP provided him with everything he requested except for the letter or recommendation which explains the reasons for disciplinary actions. Referencing 97-ORD-168, he argues that simply providing the final action does not fulfill Open Records requirements, when there is no explanation of the underlying reasons for those final actions.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the KSP and enclosed a copy of Mr. Hebert's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Louis F. Mathias, Legal Counsel, KSP, provided this office with a response to the issues raised in the appeal. In his response, Mr. Mathias states, in relevant part:
The records request which Mr. Herbert refers to was responded to by this department on March 9, 1998. In the request, citing Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, Ky., 941 S.W.2d 469 (1997), Mr. Hebert asked for disciplinary actions involving an officer, to include "the original complaints, recommended actions, final actions, and basis for those actions." In response to the request Mr. Herbert was provided with a copy of the disciplinary complaints and final actions, but was denied internal affairs reports.
Mr. Hebert's appeal letter appears to argue that 97-ORD-168 modifies prior decisions of the Attorney General, and amends City of Louisville v. The Courier Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982). The latter decision provides that Mr. Hebert may have the initial complaint and final action in the disciplinary cases, but is not entitled to the internal affairs file. 97-ORD-168 is not to the contrary. That opinion dealt not with an internal affairs investigation, but with a use of force inquiry, the report of which was the initiating document, and which was incorporated into the final decision. In this instance Mr. Hebert has been given the initial complaints, which sets forth the complained of conduct, and the final disposition, which was the discipline imposed. There was no incorporation, and the investigative files of internal affairs which Mr. Hebert now asks for are exempt.
Under authority of KRS 61.880(2) and 40 KAR 1:030, Section 3, and in order to facilitate our review of the agency's response, we requested from the KSP copies of the two internal affairs investigative files for an in camera review.
We are asked to determine whether the KSP's response was consistent with the Open Records Act For the reasons which follow, it is the decision of this office that the KSP properly withheld from disclosure the two internal affairs investigative files, as neither was incorporated into nor made part of the final agency action. However, we conclude that the KSP improperly failed to make available the "Memorandum of Disciplinary Action" from each file, dated September 3, 1997 and January 26, 1998, respectively, from the Commissioner of the KSP to the trooper notifying him of the intent of the agency to take disciplinary action against him and the specific reasons relied upon by the Commissioner for taking such action.
In support of its denial, KSP cited, in part, KRS 61.878(1)(i) and (j), which authorize the nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In
City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982), the Court of Appeals held that sections of the Open Records Act [now recodified as KRS 61.878(1)(i) and (j)], protect police internal affairs from public disclosure. In reaching this result, the Court of Appeals stated:
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.
. . .
In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)[i] and [j]. This does not extend to 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.
In addition, 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 agency's final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). In 94-ORD-135, we stated:
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
Our in camera review of the two internal affairs investigative files revealed one document in each file, which we conclude is the record of final agency action. These documents are a Memorandum of Disciplinary Action from each file, dated September 3, 1997 and January 26, 1998, respectively, from the Commissioner of the KSP to the trooper. Each memorandum notifies the trooper of the intent of the agency to take disciplinary action against him and the specific reasons relied upon by the Commissioner for taking such action. Thus, these documents evidence the decision of the Commissioner and the final agency action that is to be taken as a result of the internal affairs investigations. They should be made available for Mr. Hebert's inspection.
Neither of the Memorandums reference nor incorporate any internal preliminary recommendations, interview notes, interoffice memoranda, or opinions of investigators from the internal affairs investigative files. Thus, we conclude the KSP properly withheld the investigative files of Internal Affairs as exempt from disclosure under authority of KRS 61.878(1)(i) and (j) from disclosure. Because the foregoing is dispositive of this appeal, we need not address other grounds set out as a basis for denial of the requested records.
The facts in this case are distinguishable from those in 97-ORD-168, which involved a use of force inquiry. There we found that because the occurrence triggers the use of force inquiry, the internal affairs report itself represents the initiating document and that report was physically attached and incorporated into the Commissioner's final decision. In the instant appeal, none of the internal affairs investigative files were made part of or incorporated into the Commissioner's final report. Thus, 97-ORD-168 is inapposite to this appeal
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.