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 the Department of Corrections violated the Open Records Act in partially denying Courier-Journal reporter Mark Schaver's April 30, July 27, and August 5, 1998, requests for records pertaining to the Department's investigation of "ADAPT Inc., a private drug-testing company, and Jim Hager, the then-branch manager of the Louisville Probation and Parole Office and a former investor in ADAPT." In his April 30 letter, Mr. Schaver requested "a copy of a report by Larry Ball . . . that discusses the relationship between James Hager . . . and ADAPT Inc." In his July 27 letter, Mr. Schaver requested copies of James Hager's, Leonard Gardenour's, Rodney Sanford's, and Don Stearns's personnel files, including "documents discussing any disciplinary actions involving" these current or former employees of the Louisville office of Probation and Parole. In his July 5 letter, Mr. Schaver requested copies of documents reflecting final agency action taken in response to the letter from Jefferson Circuit Court Judge Ken Corey which was prompted by complaints made by Leonard Gardenour, and which in turn prompted the Department's investigation. The Department responded by releasing a heavily redacted copy of Mr. Ball's investigative report and an August 22, 1998 letter to Mr. Sanford suspending him from duty for a period of five days. The Department denied the existence of any document reflecting final action in this matter.
For the reasons that follow, we find that the Department of Corrections erred in failing to disclose disciplinary records, including written reprimands, from the personnel files of the current and former employees of the Louisville office of Probation and Parole who were identified in Mr. Schaver's July 27 request, and the April 18, 1997, document prepared by Deputy Commissioner Vertner L. Taylor summarizing the results of the investigation and advising that remedial action will be implemented, that portion of Mr. Ball's investigative report entitled "Allegations and Findings" which was referred to in Mr Taylor's summary and clearly formed the basis of that summary.
Disciplinary records of named employees The Department defends its position relative to the "withholding of disciplinary records which are anything less than a formal notice of disciplinary action, " arguing that:
Under KRS 18A.095, only an action that is a "penalization" is appealable to the Personnel Board. The Board has stated in the past that a written reprimand is preliminary to disciplinary action and constitutes private, corrective instruction from a supervisor to an employee. An agency, like a parent, must have the ability to help an individual rehabilitate his behavior Releasing a reprimand implicates reputation without due process to dispute the statement.
The Department asserts that only if the reprimand is later used to take formal disciplinary action, will it become "public and subject to release."
This office has never recognized a distinction between formal notice of disciplinary action and written reprimands. Instead, we have uniformly recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. " OAG 88-25, p. 3; also OAG 78-133; OAG 87-64; OAG 88-25; OAG 91-41; OAG 91-198; OAG 92-34; 93-ORD-103; 95-ORD-47; 97-ORD-121;
City of Louisville v. Courier-Journal Times Co., Ky.App., 637 S.W.2d 658 (1983);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953 (1983);
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992). Elaborating on this view, in OAG 91-41 this office observed:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment, and access to records pertaining thereto has been denied based on KRS 61.878(1)(a), this Office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee.
This is so even though disclosure "may cause inconvenience or embarrassment to public officials or others." KRS 61.871. As the Kentucky Supreme Court noted at page 328 of Board of Examiners , "In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." If charges are made which are serious enough to warrant a reprimand, the public has a right to know and there is no authority for refusing to disclose them.
In OAG 91-41, we specifically dealt with a document characterized as a "private reprimand. " There we concluded that although a public employee who is reprimanded "may have a cognizable personal privacy interest in records pertaining to a privately issued reprimand, " that interest "is outweighed by the public's interest in being informed about the conduct of public employees when that conduct is job related." OAG 91-41, p. 5. Numerous other open records decisions dealing with public employee reprimands support this view. See, for example, OAG 91-102; 93-ORD-103; 97-ORD-121. Accordingly, we do not share the Department's view that because a written reprimand has a technical meaning and effect in the context of state personnel law, it is somehow excluded from the mandatory disclosure provisions of the Open Records Act. We hold that the Department erred in failing to disclose all disciplinary records relating to the named employees, including written reprimands, for the period of their public employment.
Larry Ball's investigative report
In partially denying Mr. Schaver's request for the investigative report, the Department relied on KRS 61.878(1)(i) and (j) explaining that, "portions of the report have been redacted as the information was either preliminary, not incorporated into any final documentation or not intended to give notice of final action by an agency, and the record contained the opinions of those being interviewed." In a subsequent letter the Department indicated that because Mr. Schaver's original request was so specific, "only those portions of the report dealing with Mr. Hager's 'connection' to ADAPT were released." The Department reaffirmed its earlier argument as to "preliminary information and opinions [which] were redacted pursuant to KRS 61.878."
In a follow-up letter to this office, the Department elaborated on its position. Noting that in 97-ORD-107, this office affirmed its denial of a request for Mr. Ball's investigative report, and quoting at length from that decision, the Department maintained that:
The Ball report was compiled at Corrections' request. Rather than have a Corrections' employee conduct the investigation, a decision was made to bring in an independent, impartial Justice Cabinet employee. The investigation was undertaken to ascertain if the allegations of misconduct were true or the result of dissension within the Louisville Probation and Parole office staff. The report was not adopted or made part of any "final" action by Corrections
. . .
According to Mr. Vertner Taylor, Deputy Commissioner, Community Services & Facilities, the Ball report is still being reviewed. In light of the current criminal investigation, changes in policies and procedures shall be re-examined, further investigations into client files and further cooperation in the prosecution of the criminal case may be required. While discussions may have occurred with staff of the Louisville office, there has not been a "final action" which would allow the release of the report.
The Department analogizes Mr. Ball's investigative report to an internal affairs report, arguing that "the outcome rests on finality and what is incorporated in a final report."
We hold that the Department of Corrections erred in failing to release the April 18, 1997, document prepared by Deputy Commissioner Vertner L. Taylor which summarizes the findings of the investigation, including remedial actions to be implemented as a result of the investigation, and upon which the signatures of Commissioner Doug Sapp and Secretary Daniel Cherry appear, as well as the "Allegations and Findings" portion of Mr. Ball's report upon which Mr. Taylor's summary was clearly based. While we have previously rejected, and continue to reject, the broad standard for disclosure that Mr. Schaver articulates, we find that he is entitled to review these records for the reasons that follow.
KRS 61.878(1)(i) and (j) authorize 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.
In 97-ORD-168, this office analyzed the applicability of these exceptions to records generated in the course of an internal investigation into allegations of misconduct against a police officer. We quoted extensively from a 1982 decision of the Kentucky Court of Appeals which dealt with an internal affairs investigation conducted by the City of Louisville. Again, we quote from that opinion:
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."
City of Louisville v. Courier-Journal and Louisville Times Company , above. In 97-ORD-168, we found that the investigative records in dispute were not exempt from disclosure under KRS 61.878(1)(i) and (j) because the final decision maker "adopted the findings and recommendations of the investigative officer by affixing his signature to the report." 97-ORD-168, p. 7. Those investigative materials that were once preliminary in nature lost their exempt status "because the final decision maker, here the Commissioner, signal[ed] his concurrence with the investigator's findings and recommendations on the report . . . [which was] physically incorporated into his final decision relative to the inquiry. . . ." Id. The Commissioner, we concluded, "adopted the report, in its entirety, when he signed off on the document and affirmed its conclusions." Id. In sum, this office held:
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.
97-ORD-168, p. 3.
Conversely, in 98-ORD-123 we affirmed an agency's denial of a request for an internal affairs report on the basis of KRS 61.878(1)(i) and (j) because the personnel order reflecting final disciplinary action, which the agency released, did not incorporate, physically or by reference, the findings and recommendations of the investigating officer. At page 12 of 98-ORD-123, we observed:
Although [the personnel order] contains scant information relative to the specific conduct giving rise to the disciplinary action, it is not by this standard that we assess the propriety of the agency's invocation of KRS 61.878(1)(i) and (j). For purposes of absolute clarity, we reject . . . [the] argument that 97-ORD-168 stands for the principle that "by failing to make findings of fact in a Notice of Final Action, the police have, in effect, adopted the preliminary investigation in the Internal Affairs report." This was neither the express nor implied holding in that decision. The Attorney General is not at liberty to so radically depart from the clearly expressed interpretation of the Open Records Act as set forth in City of Louisville and its progeny.
Factually, the appeal before us lies somewhere between the two extremes found in 97-ORD-168 and 98-ORD-123.
The Department of Corrections maintains that no final action has been taken in this matter, but produces a one page document captioned "Staff Summary Sheet," prepared by Deputy Commissioner Taylor on April 18, 1997. That document contains a narrative summary of the complaint giving rise to the investigation, the findings of the investigation, and recommendations relative to remedial measures to be implemented by central office and Louisville district office administrative staff. The signatures of both Commissioner Sapp and Secretary Cherry, and the dates on which they reviewed, and presumably approved, the document, appear at the top of the page.
In a decision directed to the Department of Corrections earlier this year, we were faced with similar facts No written record reflecting final action was generated, no letters of reprimand were issued to employees, and no sanctions were imposed. 98-ORD-27, p. 7. There, as here, final action could be reasonably inferred from the remedial measures taken as a result of the investigation. Id. In the appeal before us, however, these remedial measures have been reduced to writing, and that writing must be deemed final agency action, at least as to the specific allegations giving rise to the investigation. The Secretary of the Cabinet and Commissioner of the Department have signaled their concurrence by signing off on the document without comment. Compare, 97-ORD-168 (holding that if he disagreed with the recommendations made, the ultimate decision maker could have "prepared a separate memorandum noting his disagreement and this document would represent final agency action" ). Accordingly, we find that Deputy Commissioner Taylor's memorandum, with attachments, must be released to Mr. Schaver.
Moreover, it is immediately apparent that Deputy Commissioner Taylor adopted that portion of Mr. Ball's report entitled "Allegations and Findings" as the basis for the staff summary sheet he prepared. The remedial measures which Deputy Commissioner Taylor indicates will be implemented mirror the remedial measures which Mr. Ball recommends in this portion of his report, and the salient facts which appear in Taylor's narrative summary are also drawn from this portion of the Ball report. There can be little doubt that Mr. Ball's "Allegations and Findings" must be deemed incorporated as part of the Department's final determination, representing the evidence upon which it relied in making those determinations, and the remedial measures recommended and ultimately approved.
Nevertheless, we once again reject the argument that the Department of Corrections adopted the entire investigative report through its inaction relative to the imposition of disciplinary action. As noted, final action was taken in April, 1997, on the specific allegations which gave rise to the investigation. In the course of the investigation, additional facts came to light and additional allegations were made concerning the Louisville Probation and Parole office. Having conducted a cursory examination of the report, we note our concurrence with the Department in its characterization of the report as a forum in which.
Officers vented to every real or perceived "wrong" which had ever occurred in the office Personal grievances were aired. Opinions regarding the private and professional activities and integrity of co-workers were given. Opinions regarding what should or should not have been done to other employees were voiced.
As such, the report was quite clearly "riddled with opinion and conjecture" on issues unrelated to the subject of the investigation. From this mass of information, Mr. Ball identified the allegations related to the complaint which initiated the investigation, and set forth the relevant findings in his "Allegations and Findings." This portion of the report must, as we have noted, be disclosed. The remainder retains its preliminary character as a document in which opinions are expressed and recommendations made but not adopted into final action.
We recognize that in June, 1997, this office affirmed the Department of Corrections' denial of a request for the Ball report submitted by John J. Bleidt on behalf of his client, an employee in the Louisville office of Probation and Parole. 97-ORD-107. Mr. Bleidt's request was submitted on April 21 and the Department's denial issued on April 2 . The Deputy Commissioner's staff summary sheet was prepared on A pril 18 , and reviewed and approved by Commissioner Sapp and Secretary Cherry on April 18 and April 20 , respectively. Hence, at the time Mr. Bleidt tendered his request, final action had not been taken in this matter, and our review of the Department's actions was confined to these dates. We did not factor subsequent agency action into our analysis.
These subsequent actions are, however, directly relevant to our analysis in the present appeal. The Department of Corrections, having concluded its investigation into the allegations made by an employee of the Louisville office and brought to its attention by Judge Corey, and having taken final action on the results of that investigation by preparing a written summary of the salient facts and implementing remedial measures, with the concurrence of the Department's Commissioner and the Cabinet's Secretary, is now obligated to produce those records identified above. Vague and indefinite references to "current criminal investigations, changes in policies and procedures . . ., and further investigations into client files" do not provide an adequate legal basis to indefinitely postpone access to these records
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.