Request By:
[NO REQUESTBY IN ORIGINAL]
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 Northern Kentucky Drug Strike Force violated the Open Records Act in its responses to the open records requests of Jane Prendergast, a reporter with The Kentucky Enquirer , to inspect agency records relating to its investigation of complaints filed against Dan Steers, Executive Director, Northern Kentucky Drug Strike Force, alleging sexual harassment and hostile work environment.
By letter dated March 20, 2000, Howard W. McMillan, Chairman of the Strike Force, responded to Ms. Prendergast's March 16, 2000 request, advising:
Please be advised there is no written complaint filed against Mr. Steers. Also, I do not have nor am I aware of any written evaluations of his performance as Executive Director of the Drug Strike Force. I am enclosing minutes from a Board Meeting of January 26, 2000, which deal with the Executive Director's salary change. I am not aware of nor do I have any written complaints filed against any other members of the Strike Force. Also, at this point, there are no final results or dispositions as to any allegations concerning Mr. Steers.
There are no Affidavits alleging sexual harassment or hostile work environment. However, there are some documents or paperwork relative to a review of possible sexual harassment and/or hostile work environment concerns.
Those documents or paperwork are not being forwarded in that pursuant to KRS 61.878(1)(h)(j), said documents or paperwork are records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of investigating possible statutory or regulatory violations whereby premature release of the information to be used in a prospective law enforcement action or administrative adjudication would harm the agency. Said documents or paperwork also contain preliminary information and memoranda or opinions expressed and/or policies recommended relative to possible sexual harassment and/or hostile work environment concerns at the Northern Kentucky Drug Strike Force
On March 22, 2000, Ms. Prendergast renewed her request seeking to inspect "essentially all public records pertaining to the Northern Kentucky Drug Strike Force."
By letter dated March 27, 2000, Mr. McMillan responded to Ms. Prendergast's second request, stating:
Please be advised that you may have access to all public records pertaining to the Northern Kentucky Drug Strike Force that are maintained and recorded with the agency. Given the mission of the agency and the information you are requesting, I will arrange for your visit, in advance of your arrival. Because of the need to keep the unit's location as covert as possible, you will be contacted soon by a representative from the Drug Strike Force to arrange your visit. Appropriately, I ask that you not reveal the unit's location/address. Whatever records that are releasable will be made available. Please be cognizant that pursuant to KRS 61.878(1)(h)(j), all documents, paperwork, reports, etc., that are pertinent to on-going investigations/adjudications and whose premature release would harm the agency's operation, cannot yet be released. You should also be advised that personnel records of individuals assigned for duty at the Northern Kentucky Drug Strike Force are the domain of the permanent agency (county) of assignment. Accordingly, you will see personnel files that cover only that period of time as officer was a member of the unit. However, I am sure you will abide by the exclusion provided by KRS 61.878(1)(a), that "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " in referencing personal data. If you want additional personal information, you will have to make your request to the appropriate agencies, if access is warranted.
I understand your role and am willing to accommodate your request to the fullest extent possible.
In her letter of appeal dated March 30, 2000, Ms. Prendergast asks this office to review the Strike Force's denial of her requests to inspect the agency's investigative records pertaining to the allegations against the Executive Director of sexual harassment and hostile work environment. In her letter, Ms. Prendergast states that on March 29, 2000, the Strike Force issued a public statement that the investigation found no sexual harassment or hostile work environment. She argues that the investigation, thus, is no longer preliminary and the investigative records should be open for inspection.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. McMillan provided this office with a response to the issues raised in the appeal. In his response, Mr. McMillan, in relevant part, stated:
While the investigation has been completed and action taken - the Executive Director resigned - the Board believes release of the documents for public consumption would be pernicious to ongoing investigations since in the course of the investigation, it was necessary for the investigators to interview each member of the organization. Accordingly, cognizant of the covert mission of the Drug Strike Force, it remains pertinent that the identities of those assigned not be publicly disclosed, especially in mediums most likely be read, heard, or viewed by those involved in drug-related activities. Doing so could not only impinge current operations and associated litigation but; potentially, could vitiate future operations.
Succinctly, an allegation of sexual harassment and or hostile workplace was brought to the Board's attention and the allegation was promptly investigated. The Board did not determine the allegation to be true but did accept the Executive Director's resignation. Certainly, we recognize the letter and spirit of the law conveyed in statute; but, in denying the complaining party's request, the Board sees no material advantage for the public's welfare in releasing documents that could constitute a clearly unwarranted invasion of personal privacy and or serve more to place our officers and their mission in harm's way than to satisfy the tenets of the referenced statutes.
We are asked to determine whether the Strike Force's denial of the request to inspect its investigative records relating to the allegations of sexual harassment and hostile work environment violated the Open Records Act. For the reasons that follow, we conclude that the agency's denial was proper and consistent with the Act and prior decisions of this office.
Normally, the complaint that led to or spawned the investigation and the report of the investigation setting forth the final agency action and any records relied upon or incorporated into and made a part of the final report are records subject to public inspection. 98-ORD-117.
Addressing first the request for a copy of the complaint filed against the Executive Director, the agency indicated that there was no written complaint filed. This office has long recognized that a public agency cannot furnish access to a record that does not exist. 99-ORD-55. Thus, if there is no written complaint, the Strike Force cannot be said to have violated the Open Records Act in denying the request for such a record. However, if the agency had any written document that memorializes the essence of the verbal complaint, that record would be subject to inspection. 99-ORD-105.
The same would apply to any written evaluations of Mr. Steers' performance as Executive Director. The agency indicated that there are no such documents.
In his response to the letter of appeal, Mr. McMillan indicated that the Strike Force's investigation did not determine the allegations to be true, but that it did accept the resignation of the Executive Director. Apparently, as a result of the resignation, no final action was taken on the investigation, such as the issuance of a final report. The fact that the agency decided to take no further action on the complaint or that the investigation was preempted by the resignation, in our view, indicates that the "final action" of the agency was to take "no action" on the complaint. 94-ORD-76.
The Strike Force denied Ms. Prendergast's request to inspect the investigative records compiled by the agency in its investigation. This request was denied, in part, under authority of KRS 61.878(1)(j). That statute authorizes the nondisclosure of "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.
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, the Strike Force could properly deny access to investigative records which reflect preliminary opinions or recommendations, pursuant to KRS 61.878(1)(j). Accordingly, we conclude the agency properly denied the request to inspect the investigative records.
However, the public and Ms. Prendergast would be entitled to inspect the letter of resignation, if any, which preempted the Strike Force's investigation and the issuance of a final report. 99-ORD-105. It does not qualify as a preliminary draft or note, or as a preliminary recommendation or memorandum in which opinions are expressed or policies formulated. It is an open, public record documenting the decision of a public employee to voluntarily separate himself from public employment. The letter is final unto itself, and a matter of legitimate public interest. 99-ORD-39.
Because the foregoing is dispositive of this appeal, we need not address other grounds set out by the Strike Force as a basis for denial of the requested records.
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.