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 response of the Daviess County Sheriff's Department to Judy and Philip Goff's open records request for copies of all documents related to the Department's internal investigation of a complaint filed by the Goffs against one of the Department's Deputies.
On December 23, 1998, the Goffs filed a complaint with the Department against Deputy Gary Mattingly concerning events that occurred at the Goff's residence in Ohio County on December 8 and 9, 1998.
On January 5, 1999, Captain David L. Osborne, Chief Deputy, responded to the Goffs' complaint on behalf of the Department, explaining that Deputy Mattingly was acting in his official capacity at their home and was conducting an investigation of burglary in the 1<st> degree which had occurred in Daviess County. He further advised them, in summary, that the Department had investigated their complaint and found that nothing related to Deputy Mattingly's conduct or the events which occurred at the Goff's home revealed a violation of Department policy, the Kentucky statutes, or violated the civil rights of any persons.
On January 25, 1999, the Goffs made the first of three open records requests to the Department for copies of all records related to the Department's internal investigation of the complaint filed by them.
On February 1, 1999, Keith Cain, Daviess County Sheriff, responded to the Goffs' request, stating, in part:
Our agency's internal investigation reports are not subject to the "Open Records" [statutes], of which you refer. Consequently, I cannot provide you with these records.
As Capt. David Osborne's letter of January 5, 1999 to you indicated, this department conducted an investigation of your complaint concerning the conduct of Deputy Mattingly [on December 8 and 9, 1998]. The investigation and a review of all information available to this office indicates the officer followed appropriate departmental policies and procedures and acted within performance guidelines.
On February 5 and 23, 1999, the Goffs submitted open records requests for copies of all records related to the Department's internal investigation of their complaint.
On February 25, 1999, Sheriff Cain responded to the Goffs' last requests, again advising them that the Department's internal investigative reports were not subject to the Open Records Act, and denied the requests.
After receipt of the letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, we contacted the Sheriff's Department by telephone to get more documentation relative to the issues raised in the appeal. Captain Osborne advised the undersigned that his January 5, 1999 letter to the Goffs constituted the Department's final action or report on the complaint against Deputy Mattingly. Captain Osborne indicated that none of the records in the investigative file had been incorporated into or made a part of the Department's final action. To facilitate our review of this appeal, we requested that the Department provide us copies of its investigative file on the matter for an in camera review.
We are asked to determine whether the responses of the Department were consistent with the Open Records Act. For the reasons that follow, we conclude that, although the Department's responses were procedurally deficient, they were substantively consistent with the Act and prior opinions of the courts and this office.
KRS 61.878(1)(i) and (j), 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 Department's investigative records which were provided this office indicate they are preliminary in nature, contain investigative notes, witness statements, and observations and were neither incorporated into nor made a part of the final agency action. We conclude that the Department could properly withhold disclosure of these preliminary investigative records, under authority of KRS 61.878(1)(i) and (j).
Mr. and Ms. Goff were entitled to copies of the initiating complaint (which was the one they submitted to the Department on December 23, 1998) and a copy of the Department's final action on the complaint (Captain Osborne's January 5, 1999 letter to them). The investigative files remain preliminary unless they are incorporated into and made a part of the final agency action. Accordingly, we conclude that the Department's responses were substantively consistent with the Open Records Act. If Mr. and Ms. Goff want copies of these two documents, they should be so provided.
However, we find that the responses were procedurally deficient in failing to comply with KRS 61.880(1), which requires that a response denying, in whole or in part, access to records identified in the request must include citation to the specific exception authorizing the withholding of the record, and a brief explanation of how the exception applies to the records withheld. The Department's responses were procedurally flawed in failing to cite KRS 61.880(1)(i) and (j) as the basis for their denial and a brief explanation of how the exception applied to the records withheld. 1
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