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 Natural Resources and Environmental Protection Cabinet (Cabinet) violated the Open Records Act in denying the March 23, 2001 request of Mark R. Chellgren "to inspect and copy the letter to Forestry Director Mark Mataszewski placing him on administrative leave." For the reasons that follow, we conclude the Cabinet did not violate the Act in denying access to the letter.
By letter dated March 26, 2001, Mark H. York, responding on behalf of the Cabinet, denied Mr. Chellgren's request, advising:
At this time, the record which you have requested is excluded from the application of KRS 61.870 to 61.884 pursuant to KRS 61.878(1)(h), as a record compiled in the process of investigating statutory or regulatory violations, and KRS 61.878(1)(i), as preliminary correspondence not intended to give notice of final agency action.
After receipt of this office's "Notification to Agency of Receipt of Open Records Appeal," Barbara A. Foster, General Counsel, provided this office with a response to the issues raised in the appeal. Expanding on the Cabinet's original response, Ms. Foster advised:
In response to this appeal, I call your attention to 101 KAR 3:015, Section 8 (3) (d) and (e). Inasmuch as the letter in question must be removed from the employee's file if no misconduct is found, as required under subsection (d), and the employee must be notified of the action taken at the conclusion of the investigation, as required by subsection (e), it is clear that the letter in question is ". . . . correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " and excluded from application of KRS 61.870 to 61.884 by KRS 61.878(1)[i].
We are asked to determine whether the Cabinet properly denied access to the requested record. For the reasons that follow, we conclude the denial did not constitute a violation of the Open Records Act. Because the requested letter does not fall neatly within any of the exceptions authorizing nondisclosure relied upon by the Cabinet, we will discuss each exception separately.
KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. 95-ORD-95.
Failure to establish that the disputed records satisfy each part of the three part test has resulted in adverse rulings by the courts and this office in various factual contexts. Assuming that KRS 61.878(1)(h) applied to this case, the Cabinet failed to establish that disclosure of the record in question would harm the agency's investigation. Thus, the record is not exempt from disclosure under this exemption.
KRS 61.878(1)(l) authorizes the nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
Under KRS 18A.030 and 18A.110(7)(g), the Secretary of the Personnel Cabinet is required to promulgate administrative regulations "For annual, sick, and special leaves of absence, with or without pay, or reduced pay, after approval by the Governor as provided by KRS 18A.155(1)(d)." (Emphasis added.)
Pursuant to this statutory authority, 101 KAR 3:015, Section 8(3)(a) - (e) was promulgated. That administrative regulation provides:
(3)(a)If approved by the secretary, an appointing authority may place an employee on special leave with pay for investigative purposes pending an investigation of an allegation of employee misconduct.
(b) Leave shall not exceed sixty (60) working days.
(c) The employee shall be notified in writing by the appointing authority that he is being placed on special leave for investigative purposes, and the reasons for being placed on leave.
(d) If the investigation reveals no misconduct by the employee, records relating to the investigation shall be purged from agency and Personnel Cabinet files.
(e) The appointing authority shall notify the employee, in writing, of the completion of the investigation and the action taken. This notification shall be made to the employee, whether he has remained in state service, or has voluntarily resigned after being placed on special leave for investigative purposes.
(Emphasis added).
In its supplemental response, the Cabinet indicated the letter was issued under authority of 101 KAR 3:015, Section 8, which pertains to special leaves of absence for unclassified service. Citing 101 KAR 3:015, Section 8(3)(d) and (e), the Cabinet argued that because the letter in question must be removed from the employee's file if no misconduct is found and the employee must be given notice of final action at the conclusion of the investigation, it was clear that the letter was "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " and exempt under KRS 61.878(1)(i).
First, the letter is not correspondence with a private individual. It is correspondence with a public employee advising him that he is being place on administrative leave until the investigation is completed and final action taken. Thus, we find that the Cabinet improperly relied upon the "correspondence with a private individual" clause of KRS 61.878(1)(i) as authority for denying access to the letter.
Secondly, the fact that 101 KAR 3:015 provides that the letter and records relating to the investigation shall be purged if no misconduct by the employee is found, is not relevant to disclosure of the record under the Open Records Act. There is no language in the regulation or the statutes under which it was promulgated that either prohibits its disclosure or otherwise makes it confidential. Accordingly, we conclude that 101 KAR 3:015 does not provide a proper basis for denying access to the letter.
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.
In 97-ORD-1168, this office analyzed the applicability of these exceptions to records generated in the course of an internal investigation into allegations of misconduct against a police officer. We quoted extensively from a 1982 decision of the Kentucky Court of Appeals that dealt with an internal affairs investigation conducted by the City of Louisville. Again, we quote from that opinion:
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.
This holding, however, is limited to Internal Affairs' involvement. We do not find that the complaints per se are exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. We acknowledge that it is possible that these complaints could be afforded continuing exemption under subsection [(i)] relating to preliminary correspondence with private individuals; however, that determination would be made upon consideration of the facts on a case-by-case basis and would be dealt with under KRS 61.878[4]: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658, 659-660 (1982). In 97-ORD-168, we found that the investigative records in dispute were not exempt from disclosure under KRS 61.878(1)(i) and (j) because the final decision maker "adopted the findings and recommendations of the investigative officer by affixing his signature to the report," 97-ORD-168, p. 7. Those investigative materials in that case, that were once preliminary in nature, lost their exempt status because the final decision maker, the Commissioner of Corrections, signaled his concurrence with the investigator's findings and recommendations on the report, which was physically incorporated into his final decision relative to the complaint.
In the instant case, the record in question is a letter from the Commissioner of the Cabinet putting a public employee on notice that he is being placed on special leave with pay, pending further investigation of allegation(s) of misconduct. At the time of Mr. Chellgren's request, it was a preliminary record compiled in the process of investigating alleged employee misconduct and was exempt from disclosure under authority of KRS 61.878(1)(i) and (j). Accordingly, we conclude that the Cabinet properly denied access to the document.
While the appeal was pending, the Cabinet advised this office that final action on the investigation had been taken. Pursuant to KRS 61.880(2), we requested a copy of the record for an in camera inspection. Although we cannot disclose the contents of the document, we can describe it generally as a letter from the Secretary of the Cabinet reflecting final action on the complaint. Of relevance to this appeal, is that the contents and substance of the record in question was referred to and made a part of the letter. Thus, the letter placing the employee on special leave forfeits its preliminary character and is no longer exempt under KRS 61.878(1)(i) and (j). The notice of special leave letter, the letter reflecting final agency action, and any letter that served as the complaint initiating the investigation would now be open and subject to public inspection, unless otherwise exempt under an applicable exemption set forth in KRS 61.878(1).
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.