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 Kentucky State Police properly relied on KRS 61.878(1)(i) and (j) in partially denying Jeffery W. Helton's April 5, 2001, request for records pertaining to Trooper Doug Asher, Jr., Post 10, Harlan, Kentucky. For the reasons that follow, we find that KSP's reliance on the cited exemptions was misplaced. Although the internal affairs investigative reports to which Mr. Helton was denied access may be reviewed for the purpose of determining if they implicate any protected privacy interest, and if so, those materials may be segregated from public inspection, we conclude that with the exception of that portion of case number 1A-97-032 relating to the charge ultimately deemed unsubstantiated, the reports must be disclosed. Our review leads us to conclude that then Commissioner Gary Rose adopted the findings and recommendations contained therein as the basis of the final disciplinary actions taken against Trooper Asher. The record before us contains no conclusive proof to the contrary.
On April 5, 2001, Mr. Helton requested the following records pertaining to Trooper Asher "for the time period beginning with his initial employment with the Kentucky State Police, to date:"
1) Any warrants, arrest records or investigation records concerning this officer which do not contain opinions of the officer (see OAG 82-413).
2) Any and all complaints, civil and criminal, written or oral, involving the officer, including the final determination of the agency on each such complaint (see OAG 83-41).
3) Any internal affairs reports which indicate action taken against the officer (see OAG 83-366 and OAG 85-77).
4) Any disciplinary reports, including therewith any disciplinary proceedings against the officer and final action or decision.
5) For any civil or criminal complaint, include the jurisdiction and case number.
In response, KSP furnished Mr. Helton with copies of the complaints that spawned three separate internal affairs investigations into Trooper Asher's conduct, and the memoranda documenting final disciplinary action against him in each case. With reference to the remaining records implicated by his request, KSP's official custodian of records, Diane H. Smith, advised Mr. Helton:
The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to particular provision. KRS 61.878(1)(k) exempts records made confidential by separate statute. An internal affairs investigation contains preliminary drafts and notes, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. These documents are exempt from the Open Records Law pursuant to KRS 61.878(1)(h)(l) [sic]. Therefore, your request for the entire internal affairs investigation is denied. We also rely on OAG 86-22, OAG 86-78, OAG 83-425, OAG 84-118 and OAG 83-39.
Shortly thereafter, Mr. Helton renewed his request, asserting his entitlement to the final internal affairs investigative reports, and inquiring into the existence of any civil complaints filed against Trooper Asher as well as any video or audiotapes relating to the incidents that prompted disciplinary action. Ms. Smith responded that KSP had "forwarded all the information that is subject to release in the internal affairs cases under the Kentucky Open Records Law," and that KSP had no knowledge of any civil actions against Trooper Asher. This appeal followed.
In a supplemental response submitted to this office following commencement of Mr. Helton's appeal, James M. Herrick, Legal Counsel, elaborated on KSP's position. 1 He reiterated that:
With respect to warrants or arrest records for Trooper Asher, and civil or criminal complaints against Trooper Asher, the KSP is not aware of the existence of any. With regard to the internal affairs investigations, the KSP provided the initial written complaints and final decisions on these cases, but denied inspection of documents containing preliminary drafts and notes, preliminary recommendations, and preliminary memoranda in which opinions were expressed or policies formulated or recommended, pursuant to KRS 61.878(1)(i)-(j). The agency relied upon OAG 86-22, OAG 86-78, OAG 83-425, OAG 84-118, and OAG 83-39 in support of this denial.
Mr. Herrick reaffirmed KSP's position that "witness statements obtained as part of an internal affairs investigation are exempt, " and further advised that none of the files contained audiotapes or videotapes, noting that if videotapes existed they "would be confidential and exempt from disclosure under KRS 189A.100(2)(e)." 2 It was his position that all nonexempt records located in these internal affairs investigative reports had been disclosed to Mr. Helton.
Unable to resolve this dispute on the record before us, and under authority of KRS 61.880(2)(c), 3 on May 31, 2001, this office requested additional information from KSP to substantiate its position. Specifically, we asked KSP to explain, in general terms, the process for investigating complaints against state troopers from commencement to conclusion, and to indicate who the ultimate decision-maker is relative to final disciplinary action. In addition, we asked KSP to state whether the ultimate decision-maker relied, in whole or in part, on the findings and/or recommendations contained in the internal affairs investigative reports as the basis for the final disciplinary actions imposed on Trooper Asher, and if not, to advise on what basis the final decision-maker determined appropriate discipline. Finally, we asked that KSP furnish us with copies of the complete investigative reports.
On June 15, 2001, Elizabeth D. Baker, Legal Counsel, responded to our inquiry by furnishing us with a description of the internal affairs investigative process. Having described the process from commencement through investigation, she observed:
Investigations may be concluded by a finding that the complaint is unfounded, by a finding that the complaint is not substantiated or by a finding that one more of the allegations of the complaint has been substantiated or substantiated in part. If the complaint is substantiated, a recommendation is made regarding disciplinary action. This recommendation is made by the officer's commander and is required to be supported by specific and articulable fact.
When the Internal Affairs investigation is completed, if the violation is a Class B or C under the KSP standards of conduct, the officer's commander submits the investigation, with recommended disciplinary action, through the following channels for review: the commander's branch commander and division director, Internal Affairs, Professional Standards Branch Commander, Administrative Division Director, Legal Office, and Commissioner for final disposition. For investigations of Class A violations with recommended disciplinary action or any investigations where there is a recommendation of no disciplinary action, the investigation is forwarded through channels by Internal Affairs to the Professional Standards Branch Commander, Administrative Division Director, appropriate branch commander and division director, Legal Office and Commissioner for final disposition.
The ultimate decision-maker as to final action is the Commissioner of the Kentucky State Police. After the Commissioner's decision, a notice of final action is routed by Internal Affairs through the same channels used for initial complaints. Investigation reports are filed in the Internal Affairs Section. At the conclusion of an investigation, the complainant is informed as to whether disciplinary action was imposed as a result of the complaint but is not apprised of any details of the investigation.
With reference to our question concerning the ultimate decision-maker' s reliance on the findings and/or recommendations contained in the internal affairs investigative report as the basis for the final disciplinary action imposed on Trooper Asher, Ms. Baker advised:
It cannot be determined whether, or to what extent, the Commissioner relied on the findings or recommendations contained in these investigative reports, as the Commissioner did not sign the investigative reports or adopt them as the basis of his ultimate decisions.
In response to our final inquiry, Ms. Baker concluded:
It is not known upon what basis the Commissioner determined what final disciplinary action was appropriate. He did not document the bases for his final determinations, as he was not required to do so. The preferment of written charges by the Commissioner under KRS 16.140 only applies when the officer is entitled to a trial board hearing, which is not the case with suspensions of 20 days or less.
The Commissioner always exercises his full discretion to accept, reject or disregard findings and recommendations contained in preliminary documents, and/or to use any extraneous information as the basis for his decision. He never merely adopts a preliminary recommendation but always makes a complete review of the case and a fully independent decision.
Whether that ultimate decision is the same as the preliminary recommendation in an investigative report does not indicate whether that recommendation, or any other material in the investigative report, influenced the Commissioner's final determination. In any event, preliminary documents and recommendations are always treated as such by the Commissioner and can never be said to reflect in themselves his final decision. 4
Because KSP cannot ascertain with a degree of certainty whether Commissioner Rose adopted the internal affairs reports as the basis of his final decision, the former Commissioner having left KSP, we employ our standard mode of analysis in reviewing the agency's actions. Specifically, we conduct an independent examination of the disputed records and the records disclosed as we are statutorily obliged to do. And while we agree with KSP that preliminary findings and recommendations cannot be said to reflect, in themselves, the Commissioner's final decision, we believe that when the final decision mirrors those findings and recommendations, albeit in an abbreviated form, it must logically be inferred that they were adopted as the basis of that decision, particularly when there is no persuasive proof in the record to overcome this inference. In our view, 97-ORD-168 is dispositive of this issue.
In 97-ORD-168, this office was asked to review KSP's denial of an open records request relating to its "internal investigation into the Eric Keith Tapp case out of the Hazard post." KSP responded that there was no internal affairs investigation into this case, but instead a "use of force" inquiry, records relating to which were exempt from public inspection pursuant to KRS 61.878(1)(i) and (j). KSP explained:
A "Use of Force" internal inquiry is not subject to disclosure under the Open Records Act . . . . The specific purpose of a "Use of Force" internal investigation is to determine whether the use of force, (physical or otherwise), was justified under existing law, policy and procedure. This internal affairs investigation is merely categorized differently from those Internal Affairs investigations stemming from a formal complaint. However, the mode of investigation and reporting are identical. The "Use of Force" internal investigation is automatically initiated upon the occurrence. An investigation is then conducted consisting of taking witness statements, review of evidence, etc. Once the investigation is complete, a report is prepared detailing the investigation and including the investigator's opinions and recommendations. This report, along with any other accompanying documents such as witness statements or other evidentiary items, is forwarded, through the chain of command, to the Commissioner for his review. Upon the Commissioner's direction, a document is then prepared by the Commander of Internal Affairs stating whether the final determination is that the use of force was justified or unjustified.
Relying on KRS 61.878(1)(i) and (j), as they believed the courts to have interpreted them in existing case law, KSP asserted that only the complaint and report indicating final action must be made available for public inspection in a "'Use of Force' internal investigation. " The Attorney General rejected this position, concluding that records relating to such investigations "do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports." 97-ORD-168, p. 6.
It is instructive to quote from that decision at 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:
97-ORD-168, p. 3-5.
Acknowledging that KSP correctly stated the rule of law set forth in these court decisions, the Attorney General nevertheless concluded that the agency "interprets the rule too broadly." 97-ORD-168, p. 6. Guided by the rule of strict construction of the exemptions codified at KRS 61.871, and the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure, "
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992), we opined:
The Kentucky State Police maintain that a use of force inquiry is identical, in all material respects, to an internal affairs investigation, but that because it is categorized differently, and is "initiated upon the occurrence" rather than upon a complaint, it is excluded from public inspection except for the memorandum drafted by the Commander of Internal Affairs at the Commissioner's direction. We do not agree.
The cases and opinions cited above establish that an internal affairs report can not be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports. The purpose for which KRS 61.878(1)(i) and (j) were enacted, namely to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken. This rule extends to use of force inquiries.
97-ORD-168, p. 6, 7.
In 97-ORD-168, this office held that the investigative records generated by KSP in its use of force inquiry must be disclosed. At page 7 of that decision, we concluded:
Because the final decision maker, here the Commissioner, signals his concurrence with the investigator's findings and recommendations on the report, that report is physically incorporated into his final decision relative to the inquiry, and forfeits its preliminary characterization. Clearly, the Commissioner adopted the report, in its entirety, when he signed off on the document and affirmed its conclusions. The State Police cannot avoid the mandate of the Open Records Act by directing the creation of a separate record which is devoid of any facts pertaining to the incident and the recommendations upon which the Commissioner relied in reaching his decision. It is not this document which reflects final action. Rather, it is the memorandum to which the Commissioner affixed his signature, reflecting his concurrence.
Having adopted the findings and recommendations of the investigating officer by affixing his signature to the report, we concluded that the investigative materials that were once preliminary in nature lost their exempt status. We noted, for the sake of argument, that if, after reviewing the investigative report, the Commissioner had disagreed with its findings and recommendations:
he would have presumably prepared a separate memorandum noting his disagreement and stating the reasons for his ultimate conclusion that the use of force was unjustified. If this had been the case, the Commissioner's memorandum would have represented final agency action, and would have been subject to disclosure.
97-ORD-168, p. 7.
This is precisely what occurred in 01-ORD-83, an open records appeal involving the City of Bowling Green Police Department's partial denial of a request for an internal affairs investigative report. There, the chief of police stated that he did not rely on the findings and recommendations contained in the report, but instead on a statement made by an officer who was present when the incident complained of occurred. At page 11 and 12 of that decision, we reasoned:
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. 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).
Accordingly, we affirmed the Bowling Green Police Department's partial denial of the open records request.
We took the occasion presented in 01-ORD-83 to provide clarification on the issue of when a preliminary report forfeits its preliminary characterization. Contrary to the agency's view 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, the Attorney General opined:
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. [Footnote omitted.] 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.
01-ORD-83, p. 13, 14. Because this did not occur in 01-ORD-83, we held that the Bowling Green Police Department properly withheld the internal affairs investigative report.
The facts of the appeal before us are more closely akin to the facts in 97-ORD-168 than the facts in 01-ORD-83. Here, as in 97-ORD-168, the Commissioner signaled his concurrence with the internal affairs investigator's findings and recommendation by affixing his signature to the February 11, 1997, September 3, 1997, and January 26, 1998, memoranda directed to him, and attached completed investigation report reflecting the Office of Internal Affairs' final determinations and proposed disciplinary action in each case. Here, as in 97-ORD-168, the record is devoid of proof to the contrary. Commissioner Rose did not prepare a separate memorandum noting his disagreement, and stating the reasons for his ultimate conclusion that the allegations were unsubstantiated, or that the proposed disciplinary action was inappropriate, and KSP cannot affirmatively state that he did not adopt the investigator's evidentiary conclusions as the basis of the final action. In such cases, we must conduct an independent review to determine on a case by case basis if the record supports the conclusion that the investigative report was so adopted. With the single exception noted below, our review confirms that in each case he adopted the investigative report by signing off on the attached memorandum, affirming the evidentiary conclusions contained in the report, and mirroring those conclusions in abbreviated statements of fact justifying the imposition of disciplinary action in his memoranda to Trooper Asher. In so doing, it appears he adopted the report as his own, and the findings and recommendations contained therein lost their preliminary characterization to that extent.
We note that in one instance, involving case number 1A-97-032, Commissioner Rose ultimately adopted the recommendation of an eight day suspension (substantiating two of the charges with suspensions of 4 days and 4 days) made by Branch Commander Major Don Pendleton, rather than the recommendation of an eight day suspension made by Captain Larry Lewis, Commander, Post 11 (substantiating three charges with suspensions of 3 days, 3 days, and 2 days). Because Commissioner Rose did not concur with the evidentiary conclusions and recommendations made by the investigator relative to the third charge, but instead adopted the recommendation of Major Pendleton, we find that the portion of the report pertaining to this unsubstantiated allegation may properly be withheld.
We are cognizant that a similar issue was presented to the Attorney General in an appeal that culminated in 98-ORD-106, and was resolved in favor of KSP. There, KSP attempted to distinguish 97-ORD-168 arguing that that decision "dealt not with an internal affairs investigation, but with a use of force inquiry, the report of which was the initiating document, and which was incorporated into the final decision. " 98-ORD-106, p. 2. Because KSP itself acknowledged, in 97-ORD-168, that there is no appreciable difference between a use of force inquiry and an internal affairs investigation, and because this office has since made clear that a record that forfeits its preliminary characterization need not be incorporated physically or by reference into final action, but need only be adopted as the basis of that action, we find that 98-ORD-106 is distinguishable.
Accordingly, we find that KSP's reliance on KRS 61.878(1)(i) and (j) as the basis for denying Mr. Helton access to the disputed internal affairs investigative reports was misplaced. Although KSP may review these reports for purposes of identifying and redacting information that implicates protected privacy interests, 5 we believe that in light of the statement of legislative policy codified at KRS 61.871, and as construed in Board of Examiners, above, the Open Records Act mandates disclosure of the remainder of those reports.
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.
Jeffery W. HeltonAsher BuildingP.O. Drawer 1070Pineville, KY 40977
James M. HerrickLegal CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Elizabeth BakerOffice of Legal CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Diane SmithKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 In addition to the arguments advanced on behalf of KSP, Mr. Herrick included two letters of complaint submitted by Jane Breeding, and involving a single incident, which were overlooked in its initial response to Mr. Helton's request, but mailed to him along with a copy of the supplemental response.
2 We fail to see the relevance 189A.100(2)(e), a confidentiality provision that applies to videotaped recordings of field sobriety tests administered at the scene of an arrest, a police station, jail, or other suitable facility.
3 KRS 61.880(2)(c) provides, in part, that in his quasi-adjudicative role in open records disputes, the Attorney General "may request additional documentation from the agency for substantiation . . . [and] may also request a copy of the records involved but they shall not be disclosed."
4 In a letter dated July 17, 2001, Ms. Baker advised that KSP legal office had reviewed the documents in the file, and concluded that " it [did] not appear that the investigation reports from Internal Affairs were adopted by the Commissioner in these three cases."
5 In analyzing the concept of a protected privacy interest, the Attorney General recently observed:
In Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), the Sixth Circuit Court of Appeals held that liability existed under 42 USC Section 1983 for disclosure of public records placing undercover police officers and their families at substantial risk of serious bodily harm. The court thus recognized a constitutional right to nondisclosure of certain types of private information that implicate a fundamental liberty interest. Similarly, in Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), the Sixth Circuit held that the plaintiff raised a cognizable privacy claim under Section 1983 when a public official disclosed the intimate details of plaintiff's sexual assault. The court placed "public officials in this circuit . . . on notice that such a privacy right exists . . ." Bloch at 687.
01-ORD-29, p. 11. Clearly, portions of the investigative file that implicate privacy concerns of this magnitude, or the disclosure of which would otherwise constitute a clearly unwarranted invasion of personal privacy may be redacted. Nevertheless, the Attorney General has observed that this position "should not be construed as an invitation to liberally censor . . . materials, . . . but as a limited exception to the general rule of openness for the public good." Id.