02-ORD-097 | KOGC

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 properly denied WHAS-11 reporter Mark Hebert's March 4, 2002 request for records relating to the United States Department of Justice's Office of the Inspector General's audit of the Accelerated Hiring, Education, and Deployment (AHEAD) grant and the Universal Hiring Program (UHP) grant awarded by the Office of Community Oriented Policing Services to the Louisville Police Department. For the reasons that follow, we find that the City improperly denied Mr. Hebert's request for the completed audit on the basis that it does not yet exist. Further, we find that the City's denial of Mr. Hebert's request for post-audit documentation is not supported by the exemptions codified at KRS 61.878(1)(i) and (j). Accordingly, we find that the City violated the Open Records Act in denying his request.

In a letter directed to Mayor David Armstrong, Mr. Hebert requested access to:

. The completed audit of the AHEAD grant and UHP grant awarded the Louisville Police Department by the U.S. Department of Justice;

. All correspondence from the Office of Community Oriented Policing Services, U.S. Department of Justice, or the Inspector General's Office to the City of Louisville or the L.P.D. regarding the above-mentioned audit or potential repercussions to the City of Louisville or L.P.D.;

. All responses or correspondence from the City of Louisville or L.P.D. to any federal government agency regarding the audit.

On March 11, 2002, Assistant Director of Law Kris M. Carlton denied Mr. Hebert's request. Relying on KRS 61.878(1)(i) and (j), she explained that Steve Ward, an employee in the City's Department of Finance and Budget, informed her that the audit was not considered to be complete by the U.S. Department of Justice, and that the City therefore could not honor this portion of his request because a completed audit "does not yet exist." Ms. Carlton also denied Mr. Hebert's request for correspondence relating to the audit, invoking KRS 61.878(1)(i) and (j) and characterizing the correspondence as "preliminary opinions or memoranda, not related to any final agency action . . . ."

On appeal, Mr. Hebert asserts that "the requested audit is COMPLETED as described in the U.S. [Department of Justice's] own Executive Summary which is posted on its website" 1 and therefore subject to inspection under the Open Records Act. It is his position that:

The only chapter that's still open in this book is negotiations between the U.S. Department of Justice and City of Louisville regarding the amount of misspent money the City will have to refund to federal taxpayers.

This, in his view, "has nothing to do with the final audit. "

In supplemental correspondence directed to this office following commencement of Mr. Hebert's appeal, Ms. Carlton identified the issue on appeal as "whether the requested audit is considered to be 'final,' or whether it still retains its preliminary status, and is therefore eligible for exemption from disclosure in accordance with KRS 61.878(1)(i) and (j) . . . ." She observed:

The City will concede that Mr. Hebert correctly stated that the U.S. Department of Justice Inspector General's Webpage has noted that the audit in question is considered to be final. However, the audit is a two-part process, and "final" refers only to the Inspector General's role in this audit.

Ms. Carlton explained that once the OIG completes its audit of the grants awarded by the Department's Office of Community Oriented Policing Services, the COPS office works with the agency on resolution of the deficiencies identified in the audit.

Although she cited no legal authority in support, Ms. Carlton indicated that the OIG classifies deficiencies as follows:

. Unresolved - Disagreement with OIG regarding OIG's conclusions and/or disagreement with OIG's recommended course of action.

. Resolved - Agreement with OIG regarding OIG's recommended course of action or OIG's agreement with an alternative course of action. However, implementation of actions has not yet been completed.

. Closed - Agreement that a compliance violation did not occur, or agreement that actions taken adequately addressed the recommendation.

She further indicated that in an April 2001 letter to Col. Greg Smith, Chief of the Louisville Division of Police, Cynthia Glover, an employee in the COPS office, notified Col. Smith that:

OIG issued the audit report with all six recommendations [made] as resolved[;] the recommendations must now be closed . . . All questioned costs identified in the report may be remedied by offset, returning funds to the DOJ or by providing supporting documentation.

Ms. Carlton was advised by Steve Ward that "the City complied with this requirement by providing the necessary supporting documentation to the COPS office," but learned from Ms. Glover, earlier this year, that the documentation had been received but not reviewed and "that this was a slow process." 2 On behalf of the City of Louisville, she maintained that "[b]ecause the audit has not been deemed 'complete' by the COPS office, with regard to the OIG's report, the City's denial of Mr. Hebert's request as relating to a preliminary record that is not related to a final agency action is in accordance with the provisions of KRS 61.878(1)(i) and (j)." Respectfully, we disagree.

KRS 61.878(1)(i) and (j) exclude from the mandatory disclosure provisions of the Open Records Act:

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.

The rationale underlying these exemptions is succinctly set forth at page 7 of 93-ORD-125. There, the Attorney General observed:

KRS 61.878(1)(i) and (j) have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies.

This rationale "is equally compelling regardless of whether the communications are within an agency or between agencies." Id. Thus, a preliminary draft "does not lose that character by having been submitted for review and comments of a state agency." OAG 89-34, p. 2.

In OAG 88-24, the Attorney General affirmed the City of Owensboro's denial of an open records request for a draft audit of the Owensboro Sewer Commission which was conducted by the Environmental Protection Agency, characterizing the audit as "a preliminary document containing opinions and observations." OAG 88-24, p. 5. We applied the same legal theory in OAG 88-60, affirming the Natural Resources and Environmental Protection Cabinet's denial of a request for a remedial investigation/feasibility study of the Maxey Flats Superfund site, which was then only in draft form, on the basis of KRS 61.878(1)(i) and (j). One year later, we affirmed this principle, holding that an Environmental Protection Agency draft report, transmitted to Kentucky's Division of Air Quality for written comments and discussion, was exempt from public inspection as "a preliminary draft within the meaning of KRS 61.878(1)[(i)]." OAG 89-34, p. 2.

In 1993, we revisited the issue declaring that the Transit Authority of River City properly withheld a draft report prepared by Coopers & Lybrand for TARC, and related to a billing dispute between TARC and Yellow Enterprises, pursuant to KRS 61.878(1)(i) and (j). The disputed record bore a stamped notation designating it a "Draft for Discussion Purposes Only - Subject to Revision," and contained numerous disclaimers relative to its finality. At page 8 of 93-ORD-125, we noted that the report:

is subject to revision and discussion. Although the notation which appears on the document designating it a "Draft" is not dispositive, we believe that the document's contents reflect its preliminary character.

In 94-ORD-38 we held that a draft report prepared by the Justice Cabinet, but never issued, could properly be withheld under KRS 61.878(1)(i) and (j). Finally in 98-ORD-140, we affirmed the City of Covington's denial of a request for a draft report on the Covington Housing Department prepared by the U.S. Department of Housing and Urban Development and submitted to the city for written response. 3

Conversely, the Attorney General has consistently held that final audit reports are public documents and are therefore subject to public inspection unless there is a possibility of prospective law enforcement action or administrative adjudication. See, e.g., OAG 76-633; OAG 82-340; OAG 83-326; OAG 84-225; OAG 91-72; 93-ORD-125. Audits that fall into the latter category are only exempted from public inspection under KRS 61.878(1)(h) until the enforcement action or administrative adjudication is concluded or a decision is made to take no action. 4 The Attorney General has never affirmed the position that the finality of an audit report is contingent on post-audit compliance measures.

The record on appeal does not support the City of Louisville's position that the OIG's audit report, and correspondence pertaining thereto, are preliminary records excluded from inspection by operation of KRS 61.878(1)(i) and (j). Pursuant to KRS 61.880(2)(c), this office obtained a copy of the City's OIG audit file, including a copy of the audit itself. The final set of documents in the file contains a letter notifying the Louisville Division of Police that the OIG's draft audit was completed on November 30, 2000, and solicits the Division's comments within 45 days, noting that once comments are received, they will be analyzed and the report revised if necessary with the Division's comments appended prior to issuance of the final report. The letter admonishes the Division that the report is a draft and is not for public dissemination. The "Draft Audit Report" itself also contains a notice of restricted use which reads:

This draft report is being provided to obtain advance review and comments from those with responsibility for the subjects it discusses. It has not been fully reviewed within DOJ and is, therefore, subject to revision.

Recipients of this draft must not, under any circumstances, show or release its contents for purposes other than official review and comment. It must be safeguarded to prevent improper disclosure of the information it contains.

The audit file reflects that the Division of Police submitted written comments on January 12, 2001, and in February 2001, the 29 page Audit Report was issued with each of the seven recommendations made by the OIG deemed "Resolved" 5 in the OIG's "Analysis and Summary of Actions Necessary to Close Report." The Audit Report does not contain any restriction on public dissemination or the notice of restricted use that appears in the earlier draft report. The Executive Summary of the audit report that is located at page 1 of the report, and that identifies the seven deficiencies found as well as the $ 1,421,539 in dollar-related findings, was subsequently posted on the OIG's website.

In defense of its denial of Mr. Hebert's request, the City maintains that the audit report will not be closed until "all agreed-upon actions are completed." We do not find this argument persuasive. As part of its monitoring and compliance function, the COPS office cannot reasonably close the audit until all remedial measures have been fully implemented. However, as noted above, the finality of the audit report itself is not contingent on post-audit compliance measures. The audit report is not a draft that is subject to revision or change within the meaning of KRS 61.878(1)(i), but is instead a final document to which the public must be afforded access. The open records decisions relating to draft audit reports, cited above, are therefore not controlling. We are guided by the line of open records decisions recognizing the public's right of access to final audit reports. Based on this line of decisions, we conclude that the OIG's audit report must be disclosed.

We apply the same reasoning to "all agreed-upon actions" and correspondence relating thereto. Such correspondence is not in the nature of pre-decisional expression of opinion or formulation of policy that qualifies for exclusion under KRS 61.878(1)(j), but is instead a record or accounting of the City's compliance measures. No "chilling effect" will be cast upon the City's ability to freely and frankly exchange ideas and opinions by disclosure of these records. Because it reflects the City's implementation of post-decisional "agreed-upon action," we find that the public is entitled to inspect the correspondence exchanged by the COPS office, U.S. Department of Justice, or OIG and the City of Louisville or the Louisville Division of Police.

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.

Mark Hebert520 W. Chestnut StreetLouisville, KY 40202

David L. ArmstrongMayorCity Hall601 W. Jefferson StreetLouisville, KY 40202

Kris M. CarltonCity of LouisvilleDepartment of LawCity Hall, Rm. 200601 W. Jefferson StreetLouisville, KY 40202

Footnotes

Footnotes

1 The Executive Summary of the OIG's audit of the Office of Community Oriented Policing Services Grants to the Louisville, Kentucky, Police Department, GR-40-01-002 (February 2001), posted on the U.S. Department of Justice website, indicates that the Louisville Police Department was awarded $ 3,825,000 to hire 51 additional police officers. The audit disclosed "material noncompliance with COPS' grant requirements." As a result of the seven deficiencies described in the Executive Summary, the OIG "identified $ 1,421,539 in dollar-related findings." Footnote 1 of the Executive Summary states that the seven deficiencies "are discussed in greater detail in the Findings and Recommendations section of the report."