Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Bowling Green violated the Open Records Act in its disposition of Brenda Yates' January 25 and 30, 2001, requests for copies of records relating to her August 22, 2000, complaint against Bowling Green police officer Randy Schocke. For the reasons that follow, and upon the authorities cited, we conclude that the city's response was procedurally deficient. However, having determined under authority of KRS 61.880(2)(c) that Chief Gary A. Raymer did not adopt Captain Jerry Wells internal affairs report as the basis of the final disciplinary action taken against Sgt. Schocke, we affirm the City's denial of Ms. Yates' request for the investigative file, including records in the file that were created as an integral part of the investigative process, as opposed to records in the file that were created collaterally to the investigation and later placed in the file. While we share Ms. Yates' frustration at the paucity of information contained in the complaint and notice of final disciplinary action which the City released to her, we believe that the Open Records Act, as interpreted by the courts, does not require more.
On January 25, 2001, Ms. Yates requested access to, and copies of "[t]he Bowling Green Police Department's internal investigation into [her August 29, 2000,] complaint of police brutality against Sgt. Schockee [sic] on August 6, 2000." Specifically, Ms. Yates requested the investigative report prepared by Jerry Wells and the report reflecting Chief Raymer's final decision. The city responded by sending Ms. Yates a copy of her complaint form, a copy of a form letter to her signed by Chief Raymer, and dated January 15, 2001, indicating that "One of four allegations has been proven [, and] appropriate disciplinary action has been taken for the improper disposition of evidence[]," 1 and a copy of a January 11, 2001, letter of reprimand issued to Sgt. Schocke for "actions pertaining to the handling of suspected evidence in the Brenda Yates case." It does not appear that the city's response included a cover letter citing the statutory bases for denying her access to the remaining records in the investigative file, or explaining how those statutes apply to the records withheld.
Shortly thereafter, Ms. Yates renewed her request, asking that the city "outline and describe in detail those four allegations and tell [her] what evidence caused [Chief Raymer] to make conclusions on each allegation." Ms. Yates again requested "a copy of the report that Captain Wells submitted to [Chief Raymer], including his recommendations. " The city's February 1, 2001, response was mailed to the wrong address. Learning of the error, Bowling Green City Attorney H. Eugene Harmon mailed a second response to Ms. Yates on February 15, advising her:
Pursuant to the open records laws of the Commonwealth of Kentucky, you have been provided all of the documents that the city is required to provide. Chief Ramer took the actual allegations from your written complaint form and, pursuant to the Open Records Act, the City of Bowling Green is not obligated to create documents to meet your requests for information. Instead, the City is only obligated to provide those records that are not exempt pursuant to the statute, case law and Attorney General opinions. Pursuant to those opinions and statutory law, the internal investigation is not subject to public review and the City declines to release the document to you. Last, the letter previously sent to you makes it clear that Sgt. Schocke was given a letter of reprimand for his actions pertaining to the handling of suspected evidence and for his improper disposition of evidence. That was the allegation that Chief Ramer substantiated.
Upon receipt of the City's response, Ms. Yates initiated this open records appeal.
In a supplemental response directed to the Attorney General following commencement of Ms. Yates' appeal, Mr. Harmon elaborated on the City of Bowling Green's position. He defended the city's partial denial of her request on the basis of "decisions of your office that clearly provide that in an internal affairs investigation the City of Bowling Green is obligated to provide a copy of the initial complaint and a copy of the disposition . . . unless the disposition incorporates the internal affairs investigation. . . ." Continuing, he observed:
As you are also aware, we can compel police officers to cooperate under threat of disciplinary action. However, I also have concerns that should police officers know their statements can be reviewed by the public and can be reviewed by the officer under investigation, those police officers may also be reluctant to fully cooperate and to be as forthcoming as they would be knowing their involvement would remain confidential. I believe at least two if not more of the current exceptions are applicable to these internal investigations. First, I believe that the people being interviewed have a certain right of privacy. Second, there is a clear exception for internal memoranda and preliminary memoranda. The internal affairs investigation reports are clearly preliminary and internal memoranda and in the City of Bowling Green, those reports are intended only to be reviewed by the Police Chief. These reports should be handled no differently than any other internal memoranda from a subordinate to a supervisor in governmental offices and those employees should feel free to be able to express their opinions and recommendations without the fear that those opinions and recommendations will become subject to public review.
To facilitate our review, and at our request, Mr. Harmon furnished this office with a copy of the complete investigative file.
Unable to resolve this dispute on the record before us, and under authority of KRS 61.880(2)(c), on March 21, 2001, this office requested additional information from Chief Raymer to substantiate the City's position. Specifically, we asked Chief Raymer to state whether he adopted, "in whole or in part, the findings and recommendations contained in Captain Jerry Wells' investigative report as the basis for the final disciplinary action [he] imposed on Sgt. Schocke." On April 2, Mr. Harmon responded to our inquiry on behalf of Chief Raymer, stating:
Chief Raymer does not deny that he reviewed the investigation of these allegations prepared by Captain Jerry Wells. However, he advises me that he based his final decision on the statement of Police Officer James Napper. This officer was also at the scene and witnessed the actions of Sergeant Schocke and Ms. Yates, and his statements collaborated [sic] the statements of Sergeant Schocke.
I am well aware of the opinions from your office in the past that any final report prepared by Chief Raymer that incorporated by reference, any documents he reviews subjects those other records to public review. However, Chief Raymer's findings did not incorporate by reference any documents that he reviewed.
Mr. Harmon again expressed concern about the potential chilling effect that disclosure of an internal investigation file might engender, observing:
Captain Wells, like any other public employee should feel free to write internal memoranda and to make preliminary recommendations without those documents being subject to public review. . . . [T]he Police Department has no ability to make civilians cooperate in an internal affairs investigation unless criminal activity is being investigated. Police officers can be compelled to cooperate. If these statements are going to be subject to public review, I believe that we have a duty to advise those civilians and police officers that those statements are subject to public review.
So advising civilians and police officers who cooperate in an internal affairs investigation will, in his view, hinder the effective investigation of complaints against police officers.
Our review of the record originally submitted to his office, supplemented by the internal affairs report, and Chief Raymer's responses to our written inquiries, discloses a clear violation of the procedural requirements of the Open Records Law, but substantial compliance with the substantive requirements of the law. We affirm its partial denial of Ms. Yates' request for the internal affairs report, with the exception of those records in the file that were generated in the normal course of business, such as dispatch logs and incident reports, and thus collaterally to, and not as an integral part of, the internal affairs investigation.
We begin by noting that each of the responses issued by the City of Bowling Green, including its supplemental response directed to this office, violated KRS 61.880(1). That statute provides in part:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing KRS 61.880(1), the Kentucky Court of Appeals observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). In Edmondson, the court noted that a "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act - much less . . . amount [] to substantial compliance." Id.
In the appeal before us, there is no evidence that the city issued a written partial denial of Ms. Yates' January 25 request, identifying the records withheld, citing the exceptions authorizing nondisclosure, and briefly explaining their application. Moreover, in its written response to her January 30 request, the city vaguely referenced "statute, case law and Attorney General opinions" as the basis for its denial of her request for the internal investigative report, but again failed to cite the applicable statutory exceptions, or explain their application. Even in its supplemental response, submitted to this office after Ms. Yates initiated her appeal, the city commented on the privacy rights of the people interviewed in the course of the investigation, and on the "clear exception for internal memoranda and preliminary memoranda," but did not cite the applicable statutory exceptions. These omissions constituted a violation of KRS 61.880(1). We urge the City of Bowling Green to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we find that the City of Bowling Green's disposition of Ms. Yates' requests conformed to the requirements of the Open Records Law. In a recent open records decision, the Attorney General addressed the issue of access to an internal investigation file generated by the Owensboro Police Department, and the application of KRS 61.878(1)(i) and (j) to the file. It is instructive to quote from 01-ORD-47 at considerable length:
The courts and this office have devoted considerable time and energy to interpreting KRS 61.878(1)(i) and (j). These provisions authorize the nondisclosure of:
Applying these exceptions to an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Kentucky Court of Appeals observed:
City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658, 659, 660 (1982) (emphasis added).
This position was reaffirmed one year later in a case involving public access to complaints against physicians licensed by the state licensure board. In Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1983), the Court of Appeals determined that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once final action is taken by the board. With respect to letters, correspondence, and reports compiled by the board, the Court commented:
Board of Medical Licensure at 956, 957 (emphasis added).
Nine years would pass before the courts revisited this issue in a published opinion. In University of Kentucky v. Courier-Journal & Louisville Times Company, Ky., 830 S.W.2d 373, 378 (1992), the Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." (Emphasis added.) In the intervening years, the Attorney General applied the principle in various contexts. [citations omitted.]
. . .
With specific reference to internal affairs investigative records, the Attorney General has held that the Kentucky State Police improperly withheld such records when the evidence presented confirmed that the final decision maker, KSP's Commissioner, "adopted the findings and recommendations of the investigative officer by affixing his signature to the report." 97-ORD-168, p. 7. Those investigative materials that were once preliminary in nature lost their exempt status "because the Commissioner, signal[ed] his concurrence with the investigator's findings and recommendations on the report . . . [which was] physically incorporated into his decision relative to the inquiry . . . ." Id. The Commissioner, we concluded, "adopted the report, in its entirety, when he signed off on the document and affirmed its conclusions." Id. In sum, this office held:
01-ORD-47, p. 5-9, citing 97-ORD-168, p. 7.
Resolution of 01-ORD-47 in favor of the Owensboro Police Department turned on the fact that no final disciplinary action had been taken in the matter under investigation. Thus, we concluded:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
01-ORD-47, p. 9.
In the appeal before us, final disciplinary action has been taken against Sgt. Schocke. Under the analysis established in City of Louisville, above, and its progeny, resolution of this appeal would normally turn on a simple determination of whether Chief Raymer adopted Captain Wells' internal investigation report as the basis for the discipline imposed. Because the records released to Ms. Yates contain scant information relative to the specific conduct upon which the complaint was based, the nature of the charges investigated, and the basis upon which Chief Raymer made his final decision, this office was unable to make this determination, prompting us to invoke KRS 61.880(2)(c). That provision authorizes the Attorney General to "request additional documentation from the agency for substantiation, . . . [including] a copy of the records involved . . .," and declares that "[t]he burden of proof in sustaining the action shall rest with the agency."
Pursuant to KRS 61.880(2)(c), the Attorney General requested that Chief Raymer state whether he adopted Captain Wells' investigative report as the basis of the final disciplinary action taken against Sgt. Schocke. He responded that he did not. Instead, Chief Raymer affirmed that his decision was based on a statement prepared by Officer Napper in the course of the investigation. Chief Raymer explained that Officer Napper, who was present during the incident from which the complaint arose, corroborated Sgt. Schocke's admission that he improperly disposed of evidence purportedly consisting of a marijuana cigarette. 2 It was this allegation that was deemed substantiated, resulting in the issuance of a written reprimand. Sgt. Schocke was "admonished that [his] actions pertaining to the handling of suspected evidence in the Brenda Yate's case . . . was against policy."
A review of the internal affairs report prepared by Captain Wells confirms Chief Raymer's statement. Captain Wells' written findings of fact vary from Sgt. Schocke's admission and Officer Napper's corroborating statement, and none of the disciplinary measures he recommended were ultimately adopted. Clearly then, Chief Raymer did not adopt the report as the basis for his decision to issue a written reprimand, and the investigative file retained its preliminary characterization under KRS 61.878(1)(i) and (j). We are bound to follow the holding in City of Louisville and its progeny relative to nondisclosure of investigative findings and recommendations that are not adopted as part of the Chief's final action. Accordingly, we affirm the City of Bowling Green's partial denial of Ms. Yates' requests. Because we conclude that these exemptions, and the cited authorities are controlling, we will not lengthen this decision with an analysis of the city's argument that KRS 61.878(1)(a), the personal privacy exemption, also authorizes nondisclosure, except to note that the Kentucky Supreme Court has largely repudiated the "chilling effect" argument in the context of criminal or administrative investigations. See University of Kentucky v. Courier-Journal, Ky. 830 S.W.2d 373, 377, n. 2 (1992).
Nevertheless, a review of the internal affairs report and investigative file discloses several documents that do not qualify for exclusion under KRS 61.878(1)(i) or (j) as records compiled as an integral part of the investigative process. These records, including computer print-outs reflecting police runs to Ms. Yates' homes and police runs on the date in question, as well as incident reports, do not enjoy a protected status under the Open Records Act simply because they are appended to an internal affairs report. Such records, created collaterally to the investigation, must be disclosed unless some other statutory basis exists for withholding them. The City of Bowling Green is directed to release these records to Ms. Yates unless an independent legal basis exists for denying access.
Having so concluded, we are obliged to remind the City of Bowling Green, and public agencies generally, that they are statutorily assigned the burden of proof in substantiating their actions. KRS 61.880(2)(c). A record that is devoid of citation to the relevant legal authority and a particular and detailed explanation of how that authority applies is inadequate to meet this burden. Thenceforward, when an issue such as the one before us cannot be resolved on the record, the Attorney General will require the agency to substantiate its denial. In this specific context, when an agency relies upon the protections afforded by KRS 61.878(1)(i) and (j) as its basis for denying access to internal investigative reports/files, we will expect the ultimate decision maker to affirm that he or she did not adopt the report as the basis of his final action, and to explain on what basis he or she, in fact, determined what final action was appropriate. It is not enough to simply invoke the exceptions to shield the investigative report from disclosure without offering an explanation of what was done and why.
Moreover, we believe this appeal provides the occasion for clarification of the issue of when a preliminary report forfeits its preliminary characterization. It is the City of Bowling Green's position that an internal affairs report must only be disclosed if it is "incorporated by reference" into the final action taken by the chief of police or ultimate decision-maker. We do not believe that the case law supports this position. In City of Louisville, Board of Medical Licensure, and University of Kentucky, above, the courts employed the term "adopt" rather than "incorporate" when referencing preliminary records that forfeit their preliminary characterization. 3 The term "incorporate" appears in City of Louisville only with reference to the complaints that spawn an investigation, and that are "deemed incorporated as a part of . . . final determinations" inasmuch as "whatever final actions are taken necessarily stem from them . . . ." City of Louisville at 660 (emphasis added).
These terms are not synonymous or interchangeable. The concept of incorporation by reference has a narrow legal meaning, and is defined in Black's Law Dictionary as "[t]he method of making one document of any kind become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as a part of the latter the same as if it were fully set out therein." Black's Law Dictionary, 690 (5th ed. 1979). To adopt, on the other hand, means "to accept, appropriate, choose, or select . . .," Id. at 45, or "[t]o take and follow (a course of action) by choice or assent . . . [t]o take up and make one's own." American Heritage Dictionary 12 (3rd ed. 1994). In our view, the courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation. To the extent that prior open records decisions of this office are inconsistent with this view, they are hereby modified. Where the preliminary investigative report or records are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) and (j) exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed. This did not occur in the instant appeal, and the City of Bowling Green properly withheld Capt. Wells' report.
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 proceedings.
Distributed to:
Brenda Yates1113 CovingtonBowling Green, KY 42103
Gary RaymerBowling Green Chief of Police911 Kentucky StreetBowling Green, KY 42101
H. Eugene HarmonSatterfield and HarmonP.O. Box 9970Bowling Green, KY 42102-4970
Ann GoettingDepartment of SociologyWestern Kentucky UniversityBowling Green, KY 42101
Footnotes
Footnotes
1 The full text of Chief Raymer's letter follows. "Option 1" has been circled, and the chief has affixed his signature:
Dear Ms. Yates:
Your complaint, which was received on August 22, 2000, against an employee of this department has been investigated, and it has been established that:
Option 1: SUSTAINED: One of four allegations has been proven. Appropriate disciplinary action has been taken for the improper disposition of evidence.
Option 2: NOT SUSTAINED: Cannot prove or disprove allegation. There is insufficient proof to confirm or refute the allegation.
Option 3: EXONERATED: The incident occurred but action was within established policy and procedure.
Option 4: UNFOUNDED: No factual basis to the complaint. Either the allegation is demonstrably false or there is no credible evidence to support it.
Option 5: POLICY FAILURE: The allegation is true, although the action of the officer was not inconsistent with department policy.
Option 6: CLOSED EXCEPTIONALLY: For example, an officer resigns, the complainant leaves town, officer or complainant becomes deceased, or complainant withdraws allegation.
Option 7: EXEMPLARY: Officers conduct is commendable.
This department is committed to high standards of professionalism, and personnel misconduct will not be condoned. We appreciate your bringing this matter to our attention so that these standards can be maintained. If you have any questions concerning the investigation or disposition of your complaint, please contact me.
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2 Ms. Yates disputes the presence of marijuana on the premises on the date the incident occurred, insisting that she was smoking only cigarettes.
3 Hence, City of Louisville holds that "if the Chief adopts [internal affairs] notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent"; Board of Medical Licensure holds that "once such notes ore recommendations are adopted by the [agency] as part of its actions, the preliminary characterization is lost" and "those documents defined in Subsections [(i) and (j)] which become a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records"; and University of Kentucky holds that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action."