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 actions of the Kentucky Board of Psychology in response to several open records requests by Theresa A. Hahn relating to the Board's investigation of her compliant against three psychologists. Specifically, by letter dated July 15, 1999, Ms. Hahn requested:
to inspect and copy all records of, or relating to, the interviews of Dr. Stanley Murrell, Dr. Joseph Aponte, and Dr. David Winsch during an investigation by your agency of their professional conduct. Audio recordings and handwritten notes were made of those interviews, which were conducted by investigators Drs. Thomas Widiger and Robert Sively. I would appreciate, specifically, copies of those materials and any other records related to the interviews.
By letter dated July 21, 1999, Jane F. Brake, Ph. D., Chair, Board of Psychology, responded to Ms. Hahn's request, stating:
Please be advised that the Board does not have in its possession any audio recordings or handwritten notes made of the interviews. Furthermore, all records of, or relating to, the interviews of the named credential holders above are contained in the investigative report in regard to them. A copy of the investigative report was requested by you by letter received by fax on June 15, 1997, and was previously provided to you by cover letter dated June 17, 1997, from the State Board of Psychology. A copy of each of those two documents is enclosed for your review.
By letters dated July 23, 1999, Ms. Hahn responded to Dr. Brake asking for clarification of her response. Ms. Hahn stated that Drs. Sively and Widiger made audio tapes and handwritten notes during interviews of all parties for the Board.
She argued that since those records were created during an official investigation by the Commonwealth, they effectively came into the Board's possession upon their creation by Drs. Sively and Widiger. She further argued that the records are no longer preliminary because a final decision on the matter had been rendered by the Board and the appellate courts. In her second letter to Dr. Brake, Ms. Hahn acknowledged receipt of the final investigative report, but reiterated that she was requesting to review the entire investigative file, not just the final investigative report.
In her August 2, 1999 letter of appeal, Ms. Hahn states that, as of that date, she had not received a response to her letters of July 23, 1999.
Subsequent to receipt of Ms. Hahn's letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mark Brengelman, Assistant Attorney General, on behalf of the Board, provided this office with a response to the issues raised in the appeal. In his response, Mr. Brengelman stated that on August 3, 1999, Dr. Brake had responded to Ms. Hahn's July 23, 1999 request, advising her:
With regard to your specific questions in your July 23, 1999, letter about the "audio recordings and hand-written notes" made by the investigators, Drs. Robert Sivley and Thomas Widiger, please be advised that no such things are in the possession of the Board. Drs. Sivley and Widiger are private individuals who contracted to provide investigative services to the Board. No such things were provided to the Board or relied upon by the Board in its final actions against the psychologists then under investigation. Thus, they do not come under the provisions of the open records laws. What was relied upon by the Board was the final investigative reports, copies of which were provided you in 1997 at your request under the open records law. . . .
The question presented in this appeal is whether the Board properly denied Ms. Hahn's open records requests to inspect the entire investigative file. For the reasons that follow, we conclude the Board's denial was consistent with the requirements of the Open Records Act and prior decisions of this office.
In 98-ORD-90, this office recognized that a record that is not in the custody of the public agency from which it is sought is generally not a "public record" for purposes of the Open Records Act. On this issue, the Attorney General had earlier observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872[(6)].
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277).
In 95-ORD-125, we concluded that records which are neither possessed nor used by a public agency are not public records within the scope of KRS 61.870(2). There, the public agency had contracted with a private corporation to manage assets in a pension fund, and make investment transactions on its behalf. These transactions were documented by confirmation tickets. Although the agency received a monthly accounting statement reflecting transactions and holdings in the fund, the corporation retained the confirmation tickets. Because the confirmation tickets never came into the possession of the agency, and were not used by it to monitor the fund's activities, we held that they were not public records.
Thus, Kentucky's Open Records Law applies only to records which are in existence, and in the possession or control of a public agency. It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say, however, that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. See, e.g., 95-ORD-126.
In the instant appeal, the Board indicates that Drs. Sivley and Widiger were private individuals who contracted to provide investigative services to the Board. As a result of their investigation, they provided the Board with a final investigative report. The Board stated in its responses that the audio recordings and hand-written notes made by the investigators were neither in the possession of the Board nor relied upon by the Board in its final actions against the psychologists then under investigation.
The records at issue here are analogous to the records involved in 95-ORD-156. In that decision, we held that the City of Louisville properly denied a request for the interview transcripts, tapes and completed interview questionnaires generated by Coopers & Lybrand, which had been retained by the City to do a study of the Revenue Commission. Regarding these records, we stated, at pages 3 and 4:
Inasmuch as they are neither "prepared, owned, used, in the possession of [nor] retained" by the City of Louisville, they cannot be characterized as public records for purposes of the Open Records Act. KRS 61.870(2). Although the Coopers & Lybrand study of the Revenue Commission is, if adopted by the City in final agency action, a public record, the work papers which were used in preparing the study, like the confirmation tickets which were used in preparing the monthly accounting statement in 95-ORD-125, are not. And, as in that appeal, although the City might have requested copies of the work papers, it elected not to do so, relying instead on the study itself. Again, we decline [the requester's] invitation to substitute our judgment for the public agency's in deciding what records should be created or retained. It is the Coopers and Lybrand study which [the requester] is entitled to inspect, if adopted, under the open records provisions, just as it was the monthly accounting statements which the requester was entitled to inspect under the facts presented in 95-ORD-125.
Because the records Ms. Hahn seeks were not prepared, owned, used, in the possession of or retained by the Board, they are not governed by the Open Records Act. It is the decision that the Board properly denied the request to inspect the audio recordings and handwritten notes and other investigative records contained in the investigative file. Ms. Hahn was provided with a copy of the final investigative report.
Assuming for the sake of argument that the work papers at issue in this appeal were characterized as public records, as defined in KRS 61.870, our conclusion, relative to the Board's obligation to release them, would not be altered. It is our opinion that such records, if they are in fact public records, are not open records, but are instead exempt per KRS 61.878(1)(i) and (j). Those exemptions authorize the 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.
As we noted in OAG 78-816:
Work papers . . . are not public records . . . since only the 'completed report' can be a public document or record. Moreover, even when the complete report is made, such work papers would be exempted from the right of public inspection under KRS 61.878(1)[(i) and (j)], relating to preliminary drafts, notes, recommendations, memoranda, etc. Such preliminary drafts, notes, etc., are simply part of the tools which a public officer or employee uses in carrying out his statutory functions. [Citation omitted.] The public has a right to inspect a complete public action, namely, the completed report. [Footnote omitted.] The work papers are merely the informal and trial and error approach to the problem in the inchoate period leading up to the formulation of the completed report.
OAG 78-816, modifying OAG 76-204. As noted above, Ms. Hahn was provided with a copy of the final investigative report. Because we believe the records at issue in this appeal are not "public records" for purposes of the Open Records Act, we need not decide whether they are exempt under KRS 61.878(1)(i) and (j). For the reasons set forth above, it is the decision of this office that the Board properly denied the request to inspect the audio recordings and handwritten notes and other investigative records contained in the investigative file.
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.