Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Louisville violated the Open Records Act in denying Jay Reeves' open records request for a copy of a memorandum dated December 1, 1998 written by Douglas Hamilton, Chief of Police, to William E. Summers IV, Deputy Mayor.
Responding on behalf of the City, Stephanie Harris, Assistant Director of Law, denied access to the requested memorandum. In her response, Ms. Harris explained:
The memo described in your request is exempt from the open records act pursuant to KRS 61.878(1)(i) and (j). The document is a preliminary, non-final internal inter-office memorandum containing opinions and recommendations. On the basis of these exemptions, we deny your request.
In his letter of appeal, Mr. Reeves argued the report was a statement of facts discovered during a police investigation of another public agency and, while it expressed opinions, it did not recommend or formulate policies and is conclusive in nature.
After receipt of Mr. Reeves' letter, Ms. Harris provided this office with a response to the issues raised in his appeal. Elaborating on her initial response, Ms. Harris stated:
The document in question is an internal memorandum summarizing an internal review by the Louisville Division of Police of the Louisville Division of Fire and Rescue. The Division of Police reviewed the handling of two requests for emergency medical services by a patient. Former Police Chief, Douglas Hamilton summarized his opinion what transpired during two events involving the patient. Former Deputy Mayor William Summers IV reviewed the memorandum. That memorandum does not reflect any final agency action. Therefore, it is the City's contention that document is a preliminary, interoffice memorandum and is exempt pursuant to KRS 61.878(1)(i) and (j).
We are asked to determine whether the City's denial was a violation of the Open Records Act. For the reasons that follow, we conclude the denial was proper and consistent with the Act and prior decisions of this office.
KRS 61.878(1)(i) and (j), 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.
(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). 98-ORD-27. 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.
In its responses, the City indicated that the requested memorandum was a summary of an internal review by the Louisville Division of Police of the Louisville Division of Fire and Rescue. The City explained that the document was preliminary in nature, in that it was a summarization of the former police chief's opinion as to what had transpired during two events involving the patient and was neither incorporated into nor made a part of final agency action. Under these facts, the memorandum maintains its preliminary character. Accordingly, we conclude that the City could properly withhold disclosure of the document under authority of KRS 61.878(1)(i) and (j).
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.