Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of John Yarbrough for "any and all documents contained in IAQ No. 03-313, the Internal Affairs Investigation I initiated of KSP [Trooper] J. McWhorter # 935, last year." Because Captain Steve P. Simpson, Internal Affairs Branch Commander, concurred with the investigating officer's conclusion that insufficient evidence existed to warrant additional investigation of the incident in question upon reviewing the "attached complaint and subsequent investigation [file]," thereby adopting the officer's evidentiary conclusions as the basis for the KSP's final action 1 relative to Mr. Yarbrough's complaint, 2 it is the decision of this office that the KSP improperly relied upon KRS 61.878(1)(j) in denying Mr. Yarbrough's request. 3 Accordingly, the KSP must disclose the investigative file in question but may redact any information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, as mandated by KRS 61.878(1)(a).
In a letter directed to Debborah M. Arnold, KSP's Official Custodian of Records, on June 16, 2004, Mr. Yarbrough requested "any and all documents" contained in the file compiled by the KSP's Internal Affairs Branch during the administrative inquiry prompted by his complaint against Trooper McWhorter. More specifically, Mr. Yarbrough sought access to the record listing the witnesses interviewed by Sergeant Stacy Blackburn, the investigating officer, during the subject inquiry and related information, as well as the record identifying all individuals present "at the KSP road check on KY 2171 (Earlington Bypass) [on] the night of May 4, 2002." By letter dated June 24, 2004, Ms. Arnold partially denied Mr. Yarbrough's request, advising him as follows:
You have previously been provided with the complaint and result of [the] Internal Affairs Investigation regarding Trooper J. McWhorter, IAQ No. 03-013. However, I am providing them to you again per your request. These are the only documents available to you under KRS 61.870-874. The remaining documents that you requested[,] including the names of the persons interviewed, the agencies for which those persons worked and the person conducting the interviews are exempted under KRS 61.878(1)(a), [(1)](h), [and (1)](i).
Dissatisfied with this response, Mr. Yarbrough initiated this appeal challenging the KSP's denial of his request. Upon receiving notification of Mr. Yarbrough's appeal from this office, Roger Wright elaborated on KSP's position in a supplemental response dated July 7, 2004. 4 As observed by Mr. Wright, the KSP have already disclosed the identity of the "non-KSP officer present during his arrest" as Chris Proctor, but Mr. Yarbrough questions the truthfulness of this assertion. Mr. Yarbrough has also been provided with a copy of his complaint letter for IAQ No. 03-013 and a copy of the letter from the KSP notifying him that insufficient evidence was discovered during the inquiry to warrant further investigation into his allegations of perjury.
In the KSP's view, "the remaining documents contained in IAQ No. 13-013 are not subject to disclosure pursuant to KRS 61.878(1)(j) as the subject investigation contains preliminary opinions and recommendations of persons interviewed during the investigation as well as the investigator. " It is further the position of the KSP "that the closure of an Internal Affairs inquiry based upon the determination of insufficient evidence does not constitute the adoption of any opinions or recommendations set forth in the underlying inquiry in accordance with 03-ORD-051." Since the subject investigation "concerns unsubstantiated allegations of perjury by a sworn officer," the KSP also argue that "the disclosure of such a report would constitute an unwarranted invasion of [the] personal privacy of Trooper McWharter as well as the other witnesses interviewed [,]" citing OAG 91-35 in support of its position.
At our request, 5 Mr. Wright furnished this office with a copy of the entire Internal Affairs investigative file at issue, identified as IAQ-03-013, for in camera review. As correctly observed by KSP, preliminary findings and recommendations, standing alone, cannot be said to reflect the KSP's final decision. However, "when the final decision mirrors those findings and recommendations, albeit in 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." 01-ORD-123, p. 6. Here, the record on appeal contains "persuasive proof" to support such an inference. Consistent with governing precedent, therefore, we conclude that the KSP adopted the investigative file at issue as the basis of its final action following the inquiry into the actions of Trooper McWhorter on the night in question as evidenced by the notations located at the conclusion of the memorandum containing the findings and conclusions of the investigating officer, Sergeant Stacey Blackburn, and the express language of Captain Simpson's memorandum. 6 Accordingly, "the file's preliminary characterization was lost, as was its exempt status. " 02-ORD-25, p. 4.
In 97-ORD-168, this office was asked to review the KSP's denial of a reporter's request to inspect "all documents concerning the [KSP] internal investigation into the Eric Keith Tapp case out of the Hazard post." Id., p. 1. As explained by the KSP:
Those internal administrative inquiries categorized as "Use of Force" are maintained in the Internal Affairs Section as they are the result of an internal investigation or inquiry of possible violations of an administrative rule or regulation. "Use of Force" inquiries stem not from a formal complaint per se, (as do those internal investigations categorized otherwise), but from the occurrence itself.
. . .
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 upon KRS 61.878(1)(i) and 61.878(1)(j), the KSP argued that the report was properly characterized as a preliminary memorandum which was exempt from public inspection. Id., p. 2. Based on the interpretation of the cited exceptions found in opinions by the Kentucky Court of Appeals and the Kentucky Supreme Court, the KSP maintained that "'only the underlying complaint, of which there is none, and the report indicating final action are open to public inspection. '" Id. In rejecting this position, the Attorney General emphasized that records relating to such investigations "do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports.'" Id., p. 6; 01-ORD-123. At this juncture, it is instructive to quote from 97-ORD-168 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:
93-ORD-103, p. 11.
97-ORD-168, pp. 3-6.
Acknowledging that the KSP had correctly summarized the rule of law set forth in the referenced opinions by the Courts, the Attorney General nevertheless concluded that the agency interpreted "the rule too broadly." 97-ORD-168, p. 6. Guided by the rule of strict construction relative to 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), this office observed:
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 the complaint, it is excluded from public inspection except for the memorandum drafter 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.
Id., pp. 6-7. In our view, this reasoning is equally applicable on the facts presented.
Because the final decision maker, the Commissioner, signaled his concurrence with the investigating officer's findings and recommendations on the report, and that report was physically incorporated into his final decision relative to the inquiry, the investigative report did not maintain its preliminary characterization. Id., p. 7. Of particular relevance here, we engaged in the following analysis:
Assuming for the sake of argument that the Commissioner had disagreed with the recommendations made, he would have presumably prepared a separate memorandum noting his disagreement and stating the reasons for his ultimate conclusion that [sufficient evidence existed to warrant additional investigation]. If this had been the case, the Commissioner's memorandum would have represented final agency action, and would have been subject to disclosure. Because the Commissioner [acting through Captain Simpson] adopted the findings and recommendations of the investigating officer by affixing his signature to the report, the investigative materials that were once preliminary in nature lost their exempt status.
Id. "Clearly, the Commissioner [or in this case, the Director] adopted the report in its entirety, when he signed off on the document and affirmed its conclusions." Id. See also 01-ORD-83 and 01-ORD-47, both of which reaffirm the validity of 97-ORD-168. Compare 01-ORD-83 (decision affirming the City of Bowling Green Police Department's partial denial of a request for an internal affairs investigative report because the chief of police expressly indicated that he did not rely on the findings and recommendations contained in the report, instead basing his decision to issue a reprimand on the corroborating statement of a police officer who was present at the incident in question which contradicted the findings contained in the report). That decision provided this office with the opportunity to clarify when a preliminary report becomes subject to public inspection. In rejecting the City's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, the Attorney General 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. 7 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 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, pp. 13-14. Because the Chief did not adopt the investigative report at issue as the basis of the final action taken against the accused officer, we held that the City properly withheld the report. Conversely, the record on appeal in 01-ORD-123 did not support the decision of the Kentucky State Police to deny access to an internal affairs investigative file because the facts presented were more closely akin to those of 97-ORD-168. As in that decision, the Commissioner "signaled his concurrence with the internal affairs investigator's findings and recommendation by affixing his signature to the . . . memoranda directed to him, and [the] attached completed investigation report reflecting the Office of Internal Affairs' final determinations and proposed disciplinary action in each case." 01-ORD-123, p. 15. As we observed:
[T]he record is devoid of proof to the contrary. Commissioner Rose [the Director] 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 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. See also 02-ORD-18. Such is the case here.
As previously indicated, the record on appeal removes any doubt as to whether the final decision maker adopted the otherwise preliminary report prepared by Sergeant Blackburn. Upon reviewing Mr. Yarbrough's complaint and the "subsequent investigation," Captain Simpson directed a memorandum to the Director, Division of Police Services, the final decision maker in this context, indicating that he "concur[red] with the investigating officer that this complaint be filed as insufficient evidence to warrant a violation of the Kentucky State Police Standards of Conduct." Accordingly, we must respectfully disagree with the KSP's assertion to the contrary. To the extent that 03-ORD-051, upon which the KSP premise this assertion, does not reflect that a review of the records in dispute was conducted in order to confirm or refute the KSP's position relative to adoption of the investigative findings and recommendations, it is distinguishable and unpersuasive. As in 97-ORD-168, we conclude that the KSP interpret the rule of law set forth in City of Louisville, supra, too broadly in declaring that it is only required to disclose the complaint which spawned the internal affairs inquiry, or investigation as the case may be, and the letter notifying the complainant of the final action taken. In so holding, this office is again guided by the rule of strict construction 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, supra, at 327.
That being said, the KSP may review the records in dispute for the purpose of identifying and redacting information that implicates protected privacy interests. In analyzing the concept of a protected privacy interest, the Attorney General has 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; See also 02-ORD-25; 01-ORD-123. Any 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. However, the Attorney General has clarified this position by indicating that it "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.
A party aggrieved by this decision may appeal it by initiating an 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.
John Yarbrough350 Dulin StreetMadisonville, KY 42431
Debborah M. ArnoldCustodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
Roger WrightOffice of CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 If a public agency decides that no further action is warranted relative to a complaint, the "'final action' " of the agency is to take "'no action'" on the complaint. Palmer v. Driggers, Ky. App., 60 S.W.3d 591, 597 (2001), citing 00-ORD-107. See also 99-ORD-116.
2 In 01-ORD-123, this office asked the KSP to supplement its response by explaining the process for investigating complaints against state troopers from commencement to conclusion, and identify the ultimate decision maker relative to disciplinary action. Id., p. 4. According to the KSP's legal counsel at the time, the "'ultimate decision-maker as to final action is the Commissioner of the [KSP].'" Id., p. 5. On a prior occasion, the KSP advised this office that the Commander of Internal Affairs prepares a document indicating the final determination relative to a "Use of Force" inquiry "'[u]pon the Commissioner's direction,'" indicating that an internal affairs investigation is categorized differently from those Internal Affairs investigations stemming from a formal complaint, but "the mode of investigation and reporting are identical." 97-ORD-168, p. 2. Our research reveals no prior decisions involving an "IAQ" as opposed to an "investigation" or a "Use of Force" inquiry, and the KSP have not explained how the process employed differs in the current context, if at all. Absent evidence to the contrary, therefore, our analysis proceeds on the assumption that any distinction is of no legal significance. Since Captain Simpson directed the subject memorandum to the "Director, Division of Police Services (through channels)" on July 28, 2003, and subsequently notified Mr. Yarbrough that an "appropriate administrative inquiry has been conducted and insufficient evidence to warrant any additional investigation was found[,]" the logical inference is that Captain Simpson was acting under authority of the Director who, in turn, generally acts on behalf of the Commissioner.
3 Although the KSP initially cited KRS 61.878(1)(a), 61.878(1)(h), and 61.878(1)(i) in support of its denial, the KSP's argument on appeal centers around KRS 61.878(1)(j).
4 As explained by Mr. Wright:
This appeal involves one in a series of ongoing records requests dating back nearly two years in which Yarbrough professes to seek documents in his quest to vacate a 2002 DUI conviction adjudged in the Hopkins District Court allegedly procured with the perjured testimony of KRS Trooper Jeff McWhorter.
Yarbrough seeks production of all documents contained in KSP Internal Affairs Inquiry (IAQ) No. 03-013, which entailed an investigative inquiry conducted by KSP Sergeant Stacy Blackburn into allegations asserted by Yarbrough concerning Trooper McWhorter's alleged perjury.
5 In relevant part, KRS 61.880(2)(c) provides that 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."
6 On the sixth and final page of Sergeant Blackburn's memorandum directed to Internal Affairs on July 18, 2003, beneath his signature, is the signature of Captain Simpson who "Reviewed and Concur[s] w/ investigator's findings 7-28-03." Located next to Captain Simpson's signature is the signature of Captain Kelly McCloud, Commander, Post 2, who "Reviewed and Concur[red]" with the investigator's findings on "7/23/03," directing the reader to "See attached memo." In the attached memo of the same date, Captain McCloud expressly concurs with "Sergeant Stacy Blackburn's, Unit 134, conclusion." In Captain Simpson's subsequent memorandum to the Director, Division of Police Services, he advises: "After review of the attached complaint and subsequent investigation, I concur with the investigating officer that this complaint be filed as insufficient evidence to warrant a violation of the Kentucky State Police Standards of Conduct." Beneath Captain Simpson's signature is the following notation: "7/31/03 Concur Capt. J. Thorpe, ATC." Although Captain Thorpe is not further identified, the logical assumption is that his approval was required for the action to be final.
7 [Footnote 3 of 01-ORD-83 provides:]
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 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 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."