Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Department of Corrections properly denied the March 17, 1999, open records request of Judy Jones, a reporter for The Courier-Journal and Louisville Times Company (The Courier-Journal), for any complaints regarding S. T. Wright, Jr.'s job performance and any investigatory report produced regarding his work for the Department of Corrections.
By letter dated March 18, 1999, Tamela Biggs, Staff Attorney for the Department, denied Ms. Jones' request, stating in relevant part:
Enclosed is a copy of Mr. Wright's letter of retirement.
Your request for a copy of the complaint against Mr. Wright is denied as the "complaint" was made verbally and was not reduced to writing. The Department cannot produce what it does not have.
Any investigative documents in the possession of the Department are exempt from disclosure pursuant to KRS 61.878(1)(i). "Preliminary inter-office and intra-office memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports which do not represent the agencies' final action may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). OAG 87-10, OAG 87-32, OAG 87-64; OAG 88-25; OAG 91-23." (See OAG 91-154, emphasis added) Witness statements fall into the category of preliminary records [which] are exempt from disclosure. OAG 84-249; OAG 87-32.
Subsequently, R. Kenyon Meyer, counsel for The Courier-Journal, by letter dated March 23, 1999, submitted a follow-up to Ms. Jones' request. In his request, Mr. Meyer stated in part:
You also discuss a verbal complaint made regarding Mr. Wright. We request that you produce any memorandum or document which reveals the content of this complaint. Some notation regarding this complaint must exist in Mr. Wright's personnel file.
Finally, we agree that KRS 61.878 exempts from disclosure "preliminary drafts." However, we request that you produce a copy of the ultimate conclusion of the verbal complaint to which you referred.
After several discussions between the parties, Ms. Biggs, by letter dated March 30, 1999, responded to Mr. Meyer's follow-up request. In her response, Ms. Biggs stated:
After reviewing your request and the investigative file, and discussing same with General Counsel, your request for "any memorandum or document which reveals the content of the complaint" against Mr. Wright is denied pursuant to KRS 61.878(1)(i) and (j). Any allegation made against Mr. Wright was being investigated at the time he tendered his retirement letter. The Department had not made a determination as to the legitimacy of the complaint or information obtained to date and a final decision had not been made, to release "the content" of any unsubstantiated, preliminary statements or information could subject the employee to the untenable position of defending his reputation without due process. The Department respectfully refers counsel to paragraph four of our response of 18 March 1999 to Ms. Jones. (See attached)
Your request for a "copy of the ultimate conclusion" of the complaint cannot be provided, as such document does not exist. The Department cannot release what it does not have. Again, the investigation was still ongoing at the time Mr. Wright retired and the investigation was pre-empted without determining the truth or veracity of the allegations made.
In his letter of appeal, Mr. Meyer argues that the exemptions relied upon by the Department, KRS 61.878(1)(i) and (j), are inapplicable to this situation. He states that he requested only the portion of any written document which describes the content of the verbal complaint. In support of his position, Mr. Meyer states:
If the only documents that indicate the nature of the complaint against Mr. Wright are preliminary drafts or preliminary recommendations, these documents should be redacted pursuant to KRS 61.878(4) to omit information other than that and to reveal only the nature of the complaint against Mr. Wright. Kentucky law requires disclosure of such non-exempt information. (Footnote omitted.)
As authorized by KRS 61.880(2) and 41 KAR 1:030, Section 2, Ms. Biggs provided this office with a response to the issues raised in this appeal. In her response, Ms. Biggs reiterated that it was the Department's position that any investigative documents in the possession of the Department are exempt from disclosure, as no final action was taken and no final document was created incorporating any of the preliminary documentation. She enclosed a copy of a document from the investigative file for this office's in camera review. Ms. Biggs described the document as follows:
A District Assistant Supervisor was verbally informed of some allegations against Mr. Wright. The supervisor then called the Assistant Director of Probation and Parole in Frankfort to apprise her of the conversation. The conversation was viewed as a notification of a possible ethics violation rather than a "complaint." The phone call was later followed by the issuance of an intra-office memorandum.
The issue before us is whether the Department properly withheld this document. For the reasons that follow, it is the decision of this office that the Department improperly withheld disclosure of that portion of the document that reveals the content of the verbal complaint against Mr. Wright.
In 96-ORD-86, at pages 2 and 3, we observed the following regarding the release of records of complaints against public employees:
In analyzing the propriety of release of records relating to complaints against public employees and public employee discipline, the courts and this office have consistently 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; see also, City of Louisville v. Courier-Journal and Louisville 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, supra; OAGs 81-127, 81-291, 83-41, 84-315, 85-126, 85-136, 89-13, 89-73, 89-74, 91-33, 91-45, 91-62, 91-81, 91-90, 92-34, 94-ORD-27, 95-ORD-47.
The Department acknowledges that it was investigating the verbal complaint made against Mr. Wright at the time he tendered his letter of resignation and, as a result of his resignation, no final decision on the complaint was made. The Department argues that since no final agency action was taken, any records in the investigative file would remain preliminary unless they were incorporated into or made a part of final agency action and are exempt from disclosure, under authority of KRS 61.878(1)(i) and (j).
In support of this argument, the Department cites 99-ORD-55, an appeal which involved the Department of Corrections and a request for a copy of the same complaint filed against Mr. Wright at issue in this appeal. In 99-ORD-55, the Department denied the request, indicating that the complaint had been made verbally and was not reduced to writing. Based on those facts, we held that if no written record of the complaint existed, the Department could not be said to have violated the Open Records Act in denying the request. We further held that the investigative files pertaining to the verbal complaint remained preliminary unless they are incorporated into and made a part of final agency action. Since there was no document reflecting final agency action, the investigative files were exempted from disclosure, under KRS 61.878(1)(i) and (j).
However, in the instant appeal, we have the revelation by the Department of the existence of an agency document which memorializes the essence of the verbal complaint in an intra-office memorandum. This additional fact, which was not present in 99-ORD-55, makes that decision factually distinguishable and inapposite to the question before us as to whether this intra-office memorandum was properly withheld from disclosure.
The fact that the Department may have concluded that there is no need for further action on the complaint due to Mr. Wright's resignation has no bearing on whether the complaint or a record documenting the essence of the verbal complaint must be released. In 99-ORD-39, p.7, we noted:
The fact that the [agency] may have ultimately concluded that there is no basis for action against an individual employee has no bearing on whether these records [complaints] must be released. "It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct. " 94-ORD-76, p. 6. Moreover, "an individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly [, and less likely to make false accusations] . . ., if the entire process is exposed to the light of public scrutiny." 97-ORD-121, p.7.
Under the facts of this case, we conclude that the public would be entitled to inspect a copy of the document which describes the verbal complaint made against Mr. Wright and a copy of his letter of resignation. Otherwise, there would be no way for the public to evaluate a complaint made against a public employee in a matter related to his job performance and a matter about which the public has a right to know, and more importantly, no way for the public to effectively monitor public agency action, and insure that the agency is appropriately investigating and acting upon allegations of employee misconduct. 96-ORD-86; 97-ORD-121.
The fact that the Department decided to take no further action on the complaint or that its investigation was preempted by Mr. Wright's resignation, in our view, indicates that the "final action" of the agency was to take "no action" on the complaint. 94-ORD-76. In order to evaluate whether the Department's actions regarding the complaint were appropriate, the public should be able to inspect the portion of the intra-office memorandum describing the verbal complaint, which initiated the agency's investigation, notwithstanding the fact there was no final report, as the matter was dropped due to Mr. Wright's resignation. See OAG 86-22. Accordingly, we conclude the Department improperly withheld disclosure of that portion of the intra-office memorandum that reveals the content of the verbal complaint against Mr. Wright.
Since there was no final report in which any part of the investigative files could be incorporated into and made a part of final agency action, and the agency did not utilize any part of the file to initiate a civil, criminal or personnel action against Mr. Wright, the Department may properly deny access to portions of the document which reflect preliminary opinions or recommendations, pursuant to KRS 61.878(1)(i) and (j). 1 Exempt portions of the document may be redacted under authority of KRS 61.878(4). The remainder of the document which relates to and reveals the content of the verbal complaint should be made available for inspection.
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 KRS 61.878(1)(i) and (j) authorize 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.