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 Louisville Division of Police violated the Open Records Act in partially denying Courier-Journal reporter Shannon Tangonan's October 11, 2001 request for "copies of all documents relating to the Office of Professional Standards' investigation of the May 18 accident involving Officer Reuben Highsmith and police officers' subsequent actions." For the reasons that follow, and upon the authorities cited, we find that the Division's reliance on KRS 61.878(1)(i) and (j) as the basis for denying Ms. Tangonan access to all but the initiating document and final disciplinary action relating to this incident was misplaced. A review of the record on appeal, coupled with an in camera inspection of the disputed records, demonstrates that Chief Greg Smith adopted portions of the OPS investigative file as the basis of his findings of fact and conclusions in this matter. Pursuant to KRS 61.878(4) , the Division must determine what portions of the investigative report Chief Smith adopted and make this "nonexcepted material available for examination."
In her October 11 request, Ms. Tangonan specifically identified five categories of documents to which she desired access:
1. All documents relating to the initiation of the investigation.
2. Transcripts of all interviews and notes.
3. The internal affairs investigative summary.
4. All documents relating to results of the investigation, including, but not limited to, discipline imposed.
5. Any correspondence and e-mail between Chief Greg Smith and Public Safety Director Milton Dohoney about the matter, including the Chief's recommendation to the public safety director on dispositions in the case, as well as recommendations made by other commanding officers.
The Division issued a response on October 12, partially denying Ms. Tangonan's request. Although the Division agreed to disclose all documents initiating and finally disposing of the investigation, including documents reflecting the final disciplinary actions imposed, Public Information Specialist Alicia M. Smiley otherwise denied Ms. Tangonan's request on the basis of KRS 61.878(1)(i) and (j). Ms. Smiley explained that the records withheld consisted of "non-final preliminary drafts, reports, and memoranda." She advised Ms. Tangonan that her request had been forwarded to OPS, and that Ms. Tangonan would be contacted when the records became "available." No responsive records were subsequently disclosed, and on November 6 The Courier-Journal initiated this appeal through its attorney Jon L. Fleischaker. On November 14, the Division provided Ms. Tangonan with copies of Chief Smith's May 31 memorandum to OPS initiating the investigation, along with copies of the "Notice of Personnel Action" for Major Donald Burbrink, Officer Reuben V. Highsmith, and Officer Brian K. Hellinger. On December 7, the Division provided Ms. Tangonan with copies of the October 8 supporting memoranda from Chief Smith to Director of Public Safety Milton Dohoney referred to in the "Notice of Personnel Action" as "attached."
On appeal, The Courier challenges the Division's partial denial of Ms. Tangonan's request, arguing that the relevant legal authority,
City of Louisville v. The Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982), did not address specific records in internal affairs' investigative files, including the transcripts of interviews and investigative summaries at issue here. Mr. Fleischaker asserts:
Public agencies cannot make blanket determinations that every record in an internal affairs file other than the complaint and final determination are "preliminary." In fact, transcripts of witness interviews and investigative summaries are not exempt under KRS 61.878(1)(i) and (j) since they are not "preliminary drafts" or "notes" and do not contain "preliminary recommendations" or are not "preliminary memoranda in which opinions are expressed or policies formulated or recommended. "
It is The Courier' s position that these records "are simply transcripts of interviews of witnesses and memoranda describing the factual accounts of witnesses." In supplemental correspondence, The Courier questions the Division's unexplained delay in releasing the uncontested documents for a period of one to two months, maintaining that "these records were willfully withheld in violation of the law ...."
In a response directed to this office following commencement of Mr. Fleischaker's appeal, the Division argued that in City of Louisville, above, the Court of Appeals determined that internal affairs investigative files, which contain witness transcripts and investigative summaries, are exempt pursuant to KRS 61.878(1)(i) and (j) "unless adopted otherwise by the final decision-maker," and that this case "defines the law in Kentucky ...." Refuting The Courier' s position that investigative summaries and witness statements are purely factual, City of Louisville Assistant Director of Law Stephanie Harris observed:
An investigative summary is a report based on the evaluation of the evidence and is merely the opinion and or recommendation of the investigator. With regards to the witness transcripts these records are the opinions and/or perception of the witnesses' account of a particular incident. The investigative summary and the witness transcripts are not merely factual documents. The facts contained within the documents along with the recommendations, evaluations, perceptions and opinions are intertwined within the deliberative process and therefore are exempt pursuant to KRS 61.878(1)(i) and (j) unless otherwise adopted in the final decision.
Responding to this office's November 28 letter to Chief Smith in which we ask, pursuant to KRS 61.880(2)(c), whether he adopted, in whole or in part, the investigative summaries and/or report prepared by OPS as the basis for the final disciplinary action imposed, Ms. Harris advised:
We do not believe it can accurately be said that Chief Smith "adopted" the investigative file. We certainly do not deny that the Chief reviewed summaries prepared by investigators. But Chief Smith did not "adopt" as far as we understand the term, (and consistent with the January 18, 2001 Jefferson Circuit Court opinion attached as Exhibit E, pp. 4-6) any summary or report in reaching his conclusions about the matter. Thus the answer to your question is "no."
Finally, Ms. Harris defended the Division's delay in releasing the uncontested records. Although the records were available at the Civil Service Board "within days of their service upon the officers involved," she explained, "the Press Office did not know that "and forwarded Ms. Tangonan's request to OPS where the records were not immediately available. In sum, Ms. Harris asserted, the delay was neither a willful withholding nor an attempt to conceal, but the result of human error. We examine each of these issues below.
Transcripts of witness interviews and investigative summary
It is the opinion of this office that although transcripts of witness interviews and investigative summaries were not specifically addressed in City of Louisville, above, they nevertheless qualify for exclusion under KRS 61.878(1)(i) and (j). The proper mode of analysis for resolving the issue of access to these records is found in City of Louisville, above, requiring a determination of whether the chief adopted the notes and recommendations contained therein as part of his final action. Our review of the records disclosed, along with our in camera inspection of the records withheld, does not support the Division's assertion that Chief Smith did not adopt all or any portion of the notes and recommendations found in the investigative file. Chief Smith's October 8 memoranda to Milton Dohoney clearly establishes that he adopted portions of the investigative file in his factual findings and conclusions. Pursuant to KRS 61.878(4), we believe it is incumbent on the Division, working with Chief Smith, to determine which portions of the investigative file he adopted as the basis of his findings and conclusions, and the resulting disciplinary action, and to disclose those portions of the file. Upon adoption, those portions of the file forfeited their preliminary characterization.
We reject The Courier-Journal' s argument that transcripts of witness statement and investigative summaries do not enjoy protection under KRS 61.878(1)(i) and (j), and the Court of Appeals' decision in City of Louisville, above, because the Court did not dissect the internal affairs investigative file at issue in the case and specifically identify these records as:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
We believe that the Court intended its reasoning to apply to investigative files of an internal affairs unit, including witness transcripts and investigative summaries, unless adopted by the Chief as the basis of final action. These records reflect the opinions of witnesses relative to what they observed, and the opinion of the investigator who prepared the summary relative to what observations and comments to include and exclude. We are not prepared to read into City of Louisville, above, a distinction between records within the investigative file that the Court of Appeals did not make in that decision.
In our view, the proper standard for determining when a record within an investigative file forfeits its preliminary character is found at page 659 of City of Louisville, above.
Accord,
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App. 663 S.W.2d 953, 956, 957 (1983) holding that "once such notes or 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 became 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 v. Courier-Journal, Ky., 830 S.W.2d 373, 378 (1992) ratifying 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.
In 01-ORD-83, this office distinguished the concept of incorporation of a record in an investigative file into final action from adoption of that record into final action. We observed:
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, page 14. Given its statement that Chief Smith did not adopt in part or in whole the OPS investigative report, it appears to us that the City of Louisville Division of Police's interpretation of the concept of "adoption" is closer to the concept of "incorporation. "
In 01-ORD-83, we concluded that the Chief of the City of Bowling Green Police Department did not adopt all or any part of the internal affairs investigative report as the basis of his final action, the city having established that his written findings of fact were based on the statement of an officer present at the scene whose account of the incident was different than that of the internal affairs investigator, and that the disciplinary measures recommended by the investigator were not imposed by the Chief. This is not the case in the appeal before us. The Division of Police correctly characterizes the witness statements as varied and contradictory. It is therefore apparent that the Chief credited the statements of some witnesses over the statements of others leading him to adopt findings of fact consistent with those statements and to conclude that "the investigation reveals" no deliberate attempt by Major Burbrink or Officer Hellinger to obstruct legal or departmental requirements. Although the Division equivocates on whether he adopted his findings and conclusions based on some of the witness statements or the investigative summary, we believe that the record demonstrates, and Chief Smith's own words confirm, that he did. Accordingly, we find that the Division of Police improperly withheld the entire investigative summary and all transcripts of witness statements on the basis of KRS 61.878(1)(i) and (j).
The disputed record is copious, and the difficulty of extracting and disclosing the nonexempt portions of the record apparent. Nevertheless, KRS 61.878(4) imposes this duty on the Division of Police, and we believe that as a corollary of our decision it must do so.
Willful withholding of uncontested records
In numerous decisions through the years, the Attorney General has made clear his position on timely access to public records. By far, the most extensive analysis of this issue is found in a decision directed to the City of Louisville, 93-ORD-134, a copy of which is attached. We refer the parties to the discussion found at pages 9 through 12. Notwithstanding the explanations offered by the Division of Police, we believe a delay in releasing records of one to two months duration is inconsistent with the requirement of timely access.
Nevertheless, we are not prepared, or even empowered, to make a determination that this withholding was willful. Rather, it is for the courts to make this determination pursuant to KRS 61.882(5) or 61.991(2)(a). We confine our review to a determination of whether the Division of Police "violated provisions of KRS 61.870 to 61.884."
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.