Request By:
Gregory N. Schabell
226 Main Street
P.O. Box 6910
Florence, KY 41022-6910Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601James M. Herrick
Legal Counsel
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) properly relied on KRS 61.878(1)(i) and (j) in partially denying Gregory N. Schabell's July 8, 2002, request for a copy of the KSP's investigative report concerning his client Brian Lantner and Sergeant William A. Payne, KSP, an incident which occurred while Mr. Lantner was a cadet at the Kentucky State Police Academy. For the reasons that follow, we find that KSP's reliance on the cited exemptions was proper and did not constitute a violation of the Open Records Act.
By letter dated February 12, 2003, Diane H. Smith, Official Custodian of Records, KSP, partially denied Mr. Schabell's request, advising him:
Enclosed please find a copy of the initial complaint and final disposition of a matter concerning Brian Lanter.
Please remit a total of 77 [cents] [this includes four page(s) at 10 [cents] per page and 37 [cents] for postage] to this office . Checks should be made payable to "Kentucky State Treasurer". Please make reference to the above captioned log number when making payment.
The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(l) exempts records made confidential by separate statute. A complete internal affairs investigation contains memoranda, etc., in which opinions are expressed but no final action taken by the agency. These records are exempt from inspection pursuant to KRS 61.878(1)(h)(l) with the exception of the initial complaint and the final disposition.
As a result of this partial denial, Mr. Schabell initiated the instant appeal asking this office to determine whether the KSP acted consistent with the provisions of the Open Records Act.
After receipt of Notification of the appeal and a copy of Mr. Schabell's letter of appeal, James M. Herrick, Legal Counsel, KSP, provided this office with a response to the issues raised in the appeal. In his response, Mr. Herrick stated:
Mr. Schabell's letter dated July 8, 2002, was not addressed to the Kentucky State Police Records Custodian, Diane H. Smith, but to "Commander Rodney Brewer, Kentucky State Police Academy." Rodney Brewer was not assigned to the KSP Academy in 2002, and the KSP Records Custodian has no record of ever having received Mr. Schabell's July 8 letter.
Mr. Schabell addressed a letter dated February 5, 2003 (copy attached), to Captain Steve P. Simpson, Internal Affairs Branch, which was forwarded to the Records Custodian and received on February 11, 2003. In his letter, Mr. Schabell requested "all records concerning your investigation of this incident" (designated as Internal Affairs case IAQ-02-017).
In response to this request, and pursuant to City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (1982), Ms. Smith sent Mr. Schabell a copy of the initial complaint and the final disposition of the incident. She noted that "[a] complete internal affairs investigation contains memoranda, etc. in which opinions are expressed but no final action taken by the agency," and indicated that these documents were preliminary notes, recommendations, and opinions, which are exempt from disclosure under KRS 61.878(1)(i)-(j). Cf. 98-ORD-106; OAG 86-78; OAG 86-22; OAG 83-39.
The January 27, 2003, memorandum signed by Lt. Col. Rick Stiltner, which was provided to Mr. Schabell, constitutes the final agency decision in this inquiry. Lt. Col. Stiltner has advised that he determined, after an initial administrative inquiry, that there was insufficient evidence of a violation of the KSP Standards of Conduct to warrant an Internal Affairs investigation. Lt. Col. Stiltner has further advised that no preliminary documents were adopted as the final agency action.
We are asked to determine whether the KSP's partial denial of Mr. Schabell's request constituted a violation of the Open Records Act. For the reasons that follow, we conclude the KSP's action was consistent with the Act and prior decisions of the courts and this office.
In support of its partial denial, KSP cited, in part, on KRS 61.878(1)(i) and (j), which authorize the nondisclosure of:
(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.
In
City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982), the Court of Appeals held that sections of the Open Records Act [now recodified as KRS 61.878(1)(i) and (j)] protect police internal affairs from public disclosure. In reaching this result, the Court of Appeals stated:
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 factfinder 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.
. . .
In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)[i] and [j]. This does not extend to complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon.
In addition, this office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agency's final action, may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). In 94-ORD-135, we stated:
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
Generally, the complaint that led to or spawned the investigation and the report setting forth the final agency action, and any investigative records that are adopted as a basis for the agency action or the decision to take no action relative to the investigation are records subject to public inspection.
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 830 S.W.2d 373 (1992); 98-ORD-117; 94-ORD-27.
In the instant appeal, Mr. Schabell was provided with a copy of the initial complaint and a copy of the January 27, 2003, memorandum signed by Lt. Col. Stiltner, that constituted the KSP's final action on the investigation. In its response to the letter of appeal, the KSP affirmatively advised that "no preliminary documents were adopted as the final agency action. " Under these facts, we conclude that the agency's partial denial was consistent with the Open Records Act, and prior decisions of the courts and this office. 96-ORD-134; 98-ORD-106.
An issue is raised as to whether the KSP received Mr. Schabell's letter of July 8, 2003 and whether it was properly addressed. In its response to the letter of appeal, the KSP stated it had no record of having received the record. We have insufficient facts before us to address this issue.
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.