00-ORD-220
November 27, 2000
In re: Cory D. Hardin/Lee Adjustment Center
Open Records Decision
The issue presented in this appeal is whether the Lee Adjustment Center (LAC) violated the Open Records Act in denying Cory D. Hardin’s request for a copy of:
the incident report w/ the [logging] form for this date 08-31-00. The officer was Sgt. Brad Rose – badge #304 time of incident 1515 hrs.
Tracy Brewer, Open Records Coordinator, LAC, denied Mr. Hardin’s request, stating: “ . . . per KRS 61.878(1)(j) this record is exempt – Preliminary recommendations, preliminary memoranda in which opinions are expressed or recommended. Request Denied.”
We are asked to determine whether the LAC’s response violated the Open Records Act. For the reasons that follow, we conclude that the agency’s response constituted a procedural violation of the Act.
KRS 61.880(1) provides, in substance and in part, that if an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, which authorizes withholding of the record, together with a brief explanation of how the exception applies to the particular record withheld.
Although the response of LAC set forth the specific statutory exception upon which it relied, KRS 61.878(1)(j), and quoted language from that exception, it failed to explain how that exception applied to the record that Mr. Hardin was requesting.
It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154. Thus, the denial was procedurally and substantively deficient.
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.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Applying these exceptions to an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Kentucky Court of Appeals, in City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982), observed:
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.
Accordingly, if the requested incident report and logging form are part of an ongoing administrative action, they may be properly withheld under KRS 61.878(1)(j). If final action has been taken and the requested documents have been incorporated into or made a part of the final agency action, they should be provided to Mr. Hardin unless they are exempt from disclosure under another applicable provision of the Open Records Act.
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.
Albert B. Chandler III
Attorney General
James M. Ringo
Assistant Attorney General
#545
Distributed to:
Cory D. Hardin
Lee Adjustment Center
P.O. Box 900
Beattyville, KY 41311
Tracy Brewer
Open Records Coordinator
Lee Adjustment Center
P.O. Box 900
Beattyville, KY 41311
G. Edward Henry II
Gardner, Sellers & Gardner PLLC
Victorian Square, Suite 314
401 West Main Street
Lexington, KY 40507