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 is before the Attorney General on appeal from the responses of the Department of Corrections and the Justice Cabinet to multiple open records requests made by Sam Adams.
By letter dated February 26, 1999, Mr. Adams made a request to the Division of Probation and Parole for a copy of a complaint filed against S. T. Wright, supervisor of the Whitesburg office of the Department, and copies of any disciplinary letters or actions involving Mr. Wright during his tenure in the Department. Mr. Adams also requested a copy of the order returning inmate Frank Darrell Perry to prison and any supporting materials for the order.
By letter dated March 1, 1999, Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, responded to Mr. Adams's request, advising him:
Your request regarding Mr. S. T. Wright was forwarded to me for review and response. Your request for "copies of any disciplinary letters or actions" is denied, as Mr. Wright's file does not contain any such documentation; therefore, the Department cannot produce what it does not have.
Your request for a "copy of a complaint filed against S. T. Wright" is denied as the "complaint" was made verbally and was not reduced to writing. Again, the Department cannot produce what it does not have.
The Department has been actively investigating the allegations made against Mr. Wright. The documents obtained to date shall not, however, be released pursuant to KRS 61.878(1)(h) as these continue to be preliminary documents. The Attorney General's Office has "consistently held that preliminary inter-office and intra-office 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)(g) and (h) [now codified as KRS 61.878(1)(i) and (j)]. OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 91-23." (See OAG 91-154, emphasis added) As Mr. Wright has tendered his letter of retirement, the Department's investigation has been preempted and shall not be pursued any further. Enclosed is a copy of Mr. Wright's retirement letter.
A review of Frank D. Perry's file did not disclose "the order returning [him] to prison;" however, enclosed is a copy of the Notice of Preliminary Hearing which sets forth the reason Mr. Perry's parole was revoked. Mr. Perry voluntarily waived his right to the preliminary hearing and admitted guilt to the alleged violations. He was then returned to the Department's custody.
On March 3, 1999, Mr. Adams made another request asking the Department of Corrections for copies of "any materials generated during the investigation of S. T. Wright."
On March 8, 1999, Ms. Biggs, responding on behalf of the Department, denied the request. Relying upon KRS 61.878(1)(i)and (j), she explained:
"Preliminary inter-office and intra-office 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)(g) and (h) [now codified as KRS 61.878(1)(i) and (j)]. OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 91-23." (See OAG 91-154, emphasis added.) Any investigative materials obtained during the course of the investigation remain preliminary documents. The individuals conducting the investigation had no independent authority to make a binding decision on behalf of the Department. If the investigation had continued, any information and documentation obtained by those conducting the investigation would have been submitted for review to the appropriate individual(s) who would determine the final action to be taken. Therefore, while the fact gathering may have ceased due to Mr. Wright's retirement, said information retains its preliminary, "investigative" character.
Again on March 3, 1999, Mr. Adams submitted another request to the Department for a "copy of a special report to the Kentucky State Parole Board by parole officer Terrence Ison. The report is regarding the circumstances surrounding a parole violation by Frank Darrell Perry and the role of Mr. Ison's supervisor, Mr. S. T. Wright in the reporting of that violation." Mr. Adams also asked for a "copy of the parole certificate for Frank Darrell Perry."
On March 3, 1999, Karen DeFew Cronen, Offender Information Services, responded on behalf of the Department. Mr. Adams was provided with a copy of the parole certificate he requested. However, his request for the special report was denied. Relying upon KRS 61.878(1)(l) and KRS 439.510, Ms. Cronen explained:
In accordance with KRS 439.510, all information obtained in the discharge of official duty by any probation or parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. Therefore, Special Supervision Reports that are prepared in the official duty of a probation and parole office is exempt from inspection under KRS 61.878(1)[l].
And also on March 3, 1999, Mr. Adams requested a copy of the "final report on an investigation of Alfred Link, formerly a Probation and Parole officer in Harlan County," from the Division of Probation and Parole, Department of Corrections.
On March 10, 1999, the Division denied the request. Responding on behalf of the Division, Ms. Biggs explained:
Your request regarding the referenced parole officer [Alfred Link] was forwarded to me for review and response. Your request for "a copy of the final report of an investigation" is denied, as a final report was not made; therefore, the Department cannot produce what it does not have.
On March 5, 1999, Mr. Adams submitted another open records request asking the Secretary of the Justice Cabinet to order the release of all the documents which had been denied in the previous requests set out above.
On March 8, 1999, Barbara Jones, General Counsel, Justice Cabinet, responded on behalf of the Cabinet. In her response, she stated:
Secretary Murphy has referred your request to me. I am unable to grant your request for the release of the documents from the Department of Corrections. The special report to the Parole Board is not subject to the open records law. Corrections has correctly cited the law and I would not recommend that Secretary Murphy override the decision of the department because it would impede the agency's ability to carry out its work.
I have just received a copy of Ms. Biggs' response to your request for "any material generated during the investigation" dated March 9, 1999. I am in agreement with her denial and the reasons stated. Again I would not recommend to Secretary Murphy to override that decision as it is based on the law as it has been interpreted by case law and by the Attorney General's Office.
In his letter of appeal, Mr. Adams stated that he believed the denials of his requests were not proper under the Open Records Act and requested this office to determine whether the responses to his requests were consistent with the Act.
As authorized by KRS 61.880(2) and 41 KAR 1:030, Section 2, Ms. Biggs and Ms. Jones, each provided this office with supplemental responses addressing the issues raised in this appeal. In her supplemental response, Ms. Biggs reiterated that the complaint against S. T. Wright had been made verbally over the phone and had not been reduced to writing, thus it had no written complaint; that documents produced during the investigation of S. T. Wright remain preliminary investigative records and are exempt from disclosure under KRS 61.878(1)(i), because the investigation had been preempted by Mr. Wright's retirement, and the documents obtained up to that date did not give notice of any final agency action and included opinions and/or recommendations of employees. She explained that at the time Mr. Wright's retirement letter was accepted, the investigation was ongoing and a final decision had not been made on the complaint against him.
Addressing Mr. Adams's request for a special report to the parole board, Ms. Biggs stated that any and all reports prepared by a probation and parole officer during the course of his official duties was exempt pursuant to KRS 61.878(1)(l) and KRS 439.510.
Finally, responding to Mr. Adams's argument that the Department failed to respond within the three-day time limit as required by KRS 61.880(1), Ms. Biggs explained that the General Assembly's recent amendment to KRS 197.025(7) provides that the Department is to respond to an open records request within five days, excluding weekends and legal holidays.
Ms. Jones, in her supplemental response, indicated that the Cabinet did not consider Mr. Adams's request to have Secretary Murphy override the decision of the Department as an open records request as there is no appeal process within an agency under the Open Records Act and, in the alternative, stated that her original response clearly cited the basis for not recommending to Secretary Murphy to direct delivery of the requested records.
We are asked to determine whether the responses of the Justice Cabinet and the Department of Corrections were consistent with the Open Records Act. For the reasons which follow, we conclude that each response was proper and in accord with the Act and prior decisions of this office.
Addressing first, the request for a copy of the complaint filed against Mr. Wright, the Department indicated that there were no such record, as the complaint had been made verbally and was not reduced to writing, and thus it could not produce what it did not have. This office has long recognized that a public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 96-ORD-134; 97-ORD-17. Thus, we find that, if the requested records do not exist, the Department cannot be said to have violated the Open Records Act in denying Mr. Adams's request.
The same would apply to Mr. Adams's request for a copy of any disciplinary letters or actions involving Mr. Wright. The Department indicated that there were no such documents in Mr. Wright's file.
We consider next Mr. Adams's request for any materials generated during the investigation of Mr. Wright and the agency's final report on the action. The Department denied this request under authority of KRS 61.878(1)(i) and (j). In its supplemental response, the Department corrected a miscite of these exceptions in its original response. 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.
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). 98-ORD-106; 96-ORD-134.
In 94-ORD-135, this office 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.
As noted above, there was no written initiating complaint and no final agency action was taken, as the investigation was preempted by Mr. Wright's retirement before the investigation was completed. The investigative files remain preliminary unless they are incorporated into and made part of the agency's final action and are exempt from disclosure. KRS 61.878(1)(i) and (j).
In its responses, the Department stated that the individuals conducting the investigation had no independent authority to make a binding decision on behalf of the Department. If the investigation had continued, any information and documentation obtained by those conducting the investigation would have been submitted for review to the appropriate individual(s) who would determine the final action to be taken. Such documentation would have become open only if adopted or incorporated into final agency action of these individuals. The Department indicated documents obtained in the investigation included opinions and recommendations of employees and contained information of which no final determination as to its legitimacy had been made.
No final action was taken by someone with authority to make a binding decision on behalf of the Department, adopting or incorporating any of these investigative documents into final agency action, as the investigation was preempted by Mr. Wrights's retirement. Thus, we conclude that the Department's denial of the request to inspect records in its investigative file, which remain preliminary, was consistent with the Open Records Act. 1 Mr. Adams was provided a copy of Mr. Wright's letter of retirement.
We further conclude that the Department, under authority of KRS 61.878(1)(l) and KRS 439.510, properly denied access to the special report to the parole board by parole officer Terrence Ison. KRS 439.510 makes confidential:
All information obtained in the discharge of official duty by any probation or parole official . . . such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet . . . unless otherwise ordered by such court, board or cabinet.
Since the special report was prepared by a probation and parole officer in the discharge of his official duties, these records, pursuant to KRS 439.510, would be exempt from disclosure and may be properly denied under KRS 61.878(1)(l). Accordingly, it is the decision of this office that the Department's denial of this request was correct and in accord with provisions of the Open Records Act.
Addressing next, Mr. Adams's request for a copy of the final report of the investigation of Alfred Link, a former probation and parole officer, the Department indicated that no final report had been made, thus, it could not produce what it did not have. The Department, in its supplemental response, further explained that it was conducting an investigation of Mr. Link, however, its investigation was preempted by Mr. Link's retirement and no report was done. A copy of Mr. Link's retirement letter, included with the supplemental response, was provided to Mr. Adams.
It is our decision that the Department's response to the request for investigative records involving Mr. Link was consistent with the Open Records Act, for the same reasons, set forth above, in the request for similar records involving Mr. Wright. Moreover, we find, from the records before us, that the Department timely responded to this request within five business days after the receipt of the request. This was in accord with the recent amendment to KRS 197.025(7), effective July 15, 1998, which provides:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
Finally, we address Mr. Adams's request for the Justice Cabinet to order release of the special report to the parole board and any materials generated during the investigation of S. T. Wright previously denied by the Department of Corrections. We conclude that the Cabinet's response to this request was proper and consistent with the Open Records Act. Ms. Jones correctly stated that there is no appeal process within an agency under the Open Records Act and, in the alternative, stated that her original response clearly cited the basis for not recommending to Secretary Murphy to direct delivery of the requested records. Moreover, Ms. Jones's original and supplemental responses, indicate she reviewed the responses of Ms. Biggs and Ms. Cronen, and incorporated them by reference, adopting the basis for their respective responses and the reasons stated therein, as her response to the request. Under these facts, we conclude that the responses of the Cabinet were in accord with the Open Records Act.
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.
Footnotes
Footnotes
1 Mr. Adams argues 98-ORD-160 presents authority that the retirement of Mr. Wright (and Mr. Link) are remedial measures that could be inferred to be final action taken as a direct result of the investigations. In that appeal, the relevant document in question was captioned "Staff Summary Sheet," was prepared by the Deputy Commissioner, and contained 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 district office staff. We concluded that the remedial measures, which had been reduced to writing, must be deemed final agency action, at least to the specific allegations giving rise to the investigation, as the Secretary of the Cabinet and the Commissioner of the Department signaled their concurrence by signing off on the document without comment. No such document exists in the present appeal, thus, 98-ORD-160 is factually distinguishable from and inapposite to the instant case.