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 Covington Police Department violated the Open Records Act in denying Lt. Danny L. Jackson's October 30, 2001 request for "a full and complete copy of all and any documents relating to Internal Affairs Investigation #180." In response to Lt. Jackson's October 30 request, Covington Police Chief Thomas E. Schonecker advised:
Internal investigations do not fall under the Kentucky Open Records Act. You are not entitled to copy [sic].
This appeal followed.
For the reasons that follow, we find that the Department's denial of Lt. Jackson's request was procedurally and substantively deficient. Although the internal affairs investigative report to which Lt. Jackson was denied access may be reviewed for the purpose of determining if records contained therein implicate any protected privacy interests, and if so those records may be segregated from inspection, we conclude that the report must otherwise be disclosed. Contrary to the Department's assertion that Chief Schonecker decided to dismiss Lt. Jackson's complaint against Captain Michael Kraft based "upon his personal experience with Captain Kraft," we find that Chief Schonecker's October 30, 2001 memorandum to Captain Gary Kiser, Chairman of the Professional Compliance Board, clearly establishes that he "concur[red] with the Board that there is no evidence to support Lt. Jackson's complaint against Captain Kraft," and thereby adopted the Board's findings and recommendations as his own. The protection afforded these preliminary investigative materials by KRS 61.878(1)(i) and (j) was lost when these materials are adopted as the basis of Chief Schonecker's final action.
In a supplemental response directed to this office following commencement of Lt. Jackson's appeal, Covington City Solicitor John Jay Fossett elaborated on the Department's position. He opined:
Under the authority of City of Louisville v. Courier Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 659-60 (1982), the Kentucky Court of Appeals has made it clear that internal investigation reports are exempt from public inspection. Once a final action is taken on an internal affairs investigation, the complaint which brought about the investigation is the only document which is available under the Open Records Act. Officer Jackson is aware of the complaint and has a copy of it since he is the complainant. Accordingly, the City should not be compelled to allow inspection of the internal affairs investigation.
In a separate letter, Chief Schonecker reaffirmed the Department's reliance on City of Louisville, above, asserting that "investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.8781 G and H [sic]." 1 Moreover, he asserted, "Internal Affairs Investigation #180 is not about Danny L. Jackson and I do not feel it has a direct affect on him as he has stated."
Pursuant to KRS 61.880(2)(c), this office requested a copy of the disputed internal affairs investigative file on November 28, 2001. In addition, we asked Chief Schonecker to respond to the following question:
Did you adopt, in whole or in part, the findings and recommendations contained in the internal affairs investigative report as the basis for the final disposition of the complaint against Captain Kraft?
On December 18, Mr. Fossett responded to our inquiry on Chief Schonecker's behalf, advising:
I spoke with Chief Schonecker regarding this matter and he informed me that his decision regarding dismissing Lt. Jackson's complaint against Captain Kraft was based upon his personal experience with Captain Kraft and that the internal affairs investigation simply confirmed his personal knowledge that Captain Kraft did not violate Rule 144, Rights of Individuals, of the Police Rules of Conduct. The internal investigation is simply to confirm that Chief Schonecker's belief that there was no basis to the charge against Captain Kraft, and he reached this decision independently of the internal investigation.
Mr. Fossett included in his response a copy of the memorandum reflecting Chief Schonecker's final disposition of Internal Affairs Investigation #180 which states:
After reviewing and reading all documentation in regards to Internal Affairs Investigation #180, I concur with the Professional Compliance Board that there is no evidence to support Lt. Jackson's complaint against Captain Kraft that Captain Kraft is in violation of Rule 144, Rights of Individuals, and that Captain Kraft has failed to treat Lt. Jackson fairly and equitably in regards to opportunity for employment, advancement, and job opportunities because of his handicap. I want to thank the Professional Compliance Board for their hard work and their efforts to submit a complete and thorough investigation.
As requested, Mr. Fossett also furnished this office with a copy of the disputed investigative file.
Respectfully, we disagree with the Department's analysis of the law as it applies to internal affairs investigative files. It is the opinion of this office that, consistent with the Kentucky Court of Appeals' decisions in
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982) and
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983), and the Kentucky Supreme Court's decision in
University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992), preliminary investigative materials forfeit their preliminary characterization once they are adopted by the public agency as the basis of its final action and thereafter become releasable as public records. While we do not doubt that Chief Schonecker's decision to dismiss Lt. Jackson's complaint against Captain Kraft was influenced by his personal experience with Captain Kraft, Chief Schonecker's own words, in his memorandum concluding the investigation, clearly establish that he concurred in, and adopted, the Professional Compliance Board's finding "that there is no evidence to support Lt. Jackson's complaint against Captain Kraft . . ." Because Chief Schonecker adopted the investigative file as the basis of his final action, we find that the file's preliminary characterization was lost, as was its exempt status.
The issue on appeal has been the subject of no less than five open records decisions in the past year. In each of these decisions, the law enforcement agency from which internal affairs investigative reports were sought argued that KRS 61.878(1)(i) and (j) authorized them to withhold everything in the investigative file. 2 And in each of these decisions, the Attorney General rejected the argument that unless an internal affairs investigative file is incorporated by reference into the final action taken by the chief of police or ultimate decision maker, the only documents the agency is required to disclose are the complaint that spawned the investigation and the record reflecting final action. Thus, at pages 13 and 14 of 01-ORD-83, a copy of which is attached hereto, we reasoned:
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.
01-ORD-83, p. 13-14.
In 01-ORD-83, the Attorney General affirmed the City of Bowling Green Police Department's partial denial of a request for an internal affairs investigative file because 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. There, we noted:
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).
01-ORD-83, p. 11-12.
Conversely, in 01-ORD-123 the record on appeal did not support the decision of the Kentucky State Police to deny access to an internal affairs investigative file. There, the Commissioner "signaled his concurrence with the internal affairs investigator's findings and recommendations by affixing his signature to the . . . memoranda directed to him, and attached completed investigation report reflecting the Office of Internal Affairs' final determinations and proposed disciplinary action in each case." 01-ORD-123, p. 15. Continuing, we observed:
[T]he 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 [a] single exception . . ., 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.
Id.
Similarly, in 02-ORD-18 we determined that the City of Louisville Division of Police improperly denied a requester access to those portions of the internal affairs investigative report which the Chief of Police adopted as the basis of his final action. Distinguishing the facts on appeal from the facts before us in 01-ORD-83, we concluded:
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).
02-ORD-18, p. 7.
As noted, the record in the appeal before us leaves no room for doubt. Chief Schonecker affirmatively states that, having "review[ed] and read[] all documentation in regards to Internal Affairs Investigation #180," he:
concur[s] with the Professional Compliance Board that there is no evidence to support Lt. Jackson's complaint against Captain Kraft that Captain Kraft is in violation of Rule 144, Rights of Individuals, and that Captain Kraft has failed to treat Lt. Jackson fairly and equitably in regards to opportunity for employment, advancement, and job opportunities because of his handicap.
He thereby adopts the preliminary investigative file prepared by the Board in dismissing the complaint, and the file's preliminary character is lost. As we opined in 97-ORD-168:
[A]n internal affairs report cannot 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.
97-ORD-168, p. 6, 7. As in 97-ORD-168, we find that the Covington Police Department interprets the rule of law set forth in City of Louisville, above, too broadly when it declares that it is only required to disclose the complaint that spawned the internal affairs investigation. In so holding, we are 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 328, 327 (1992).
Having said this, we nevertheless find that the Covington Police Department may review the investigative report for purposes of identifying and redacting information that implicates protected privacy interests. 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.
In closing, we note that the Covington Police Department's response to Lt. Jackson's October 30 open records request was procedurally deficient. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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.
Chief Schonecker's December 30, 2001, response was delinquent by some two months, did not cite the exceptions upon which his denial was based, and did not explain the application of the exceptions to the records withheld. To this extent, the response violated KRS 61.880(1). We urge the Department to review KRS 61.880(1) to insure that future responses conform to 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 proceedings.
Footnotes
Footnotes
1 Now KRS 61.878(1)(i) and (j).
2 KRS 61.878(1)(i) and (j) authorize public agencies to withhold:
(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.
3 Footnote 3 of 01-ORD-83 reads as follows:
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."