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 actions of the Lexington-Fayette Urban County Human Rights Commission relative to the request of David L. Kincaid for "all information gathered" during its investigation of his claim against Georgia Pacific violated the Kentucky Open Records Act. Although the LFUCHRC's response was procedurally deficient insofar as the LFUCHRC failed to include a brief explanation of how each of the cited exceptions applies to the records withheld as required by KRS 61.880(1), it is the decision of this office that the LFUCHRC properly relied upon KRS 61.878(1)(i) and (1)(j) as a basis for its partial denial of Mr. Kincaid's request.
In a letter directed to William D. Wharton, Executive Director of the LFUCHRC, on July 1, 2004, Mr. Kincaid framed his complaint/request as follows:
I had a claim brought before your commission [] which I feel has not been properly investigated. Neither Raymond Sexton III [nor] Andrea Coleman called any of my key witnesses. How can you determine a decision when an investigation ha[s] not been th[oroughly] completed[?] To date, not one of my stated and recorded witnesses have been called. I therefore request all information gathered in this claim [including] [a]ll EEOC requests to Georgia Pacific Corporation and [its] response. I therefore am "pro se" and will investigate and proceed on my own. I demand that all information regarding this case be released to me, David Kincaid.
By letter dated July 6, 2004, Mr. Wharton advised Mr. Kincaid that his request to inspect and/or copy the specified case file was "granted except for the following document[s] and/or memoranda, which have been removed pursuant to KRS 61.878(1)(i)(j)(k)[,] and KRS 344.250:"
1. Investigative Log - 2 typed/ handwritten page[s] - by R. Sexton
2. Case Submittal (5/18/04) - 1 typed page - by R. Sexton
3. Final Investigative Report (5/18/04) - typed pages - by R. Sexton
4. Investigative Memorandum (5/18/04) - 2 typed pages - by R. Sexton
5. Investigative Plan (3/8/04) - 1 typed page - by R. Sexton
6. Letter to G. Keally (5/25/04) - 1 typed page[] - by W. Wharton
7. Intake Memorandum (2/19/04) - 2 typed pages - by R. Sexton
8. EEOC Form 212 (2 copies) - 2 typed pages
9. EEOC Intake Record - 1 typed page
10. Rebuttal Worksheet (3/12/04) - 1 handwritten page - by R. Sexton
11. Document Analysis Sheets - 6 typed pages - by R. Sexton
12. Respondent's Position Statement - 2 typed pages - by W. Sanborn
13. Respondent's Position Statement (Fax copy) - 3 typed pages - by W. Sanborn
14. Contact letter to N. Pinkard w/ attachments (5/10/04) - 5 typed pages - by W. Wharton
15. Letter to R. Sexton w/ attachments (5/10/04) - 5 typed pages - by G. Keally
16. Letter to R. Sexton w/ attachments (fax copy) (5/10/04) - 6 typed pages - by G. Keally
17. Letter to Respondent (4/29/04) - 2 typed pages - by R. Sexton
18. Letter to R. Sexton (4/28/04) - 1 typed page - by D. Williams
19. Letter to R. Sexton ([f]ax copy) (4/28/04) - 2 typed pages - by D. Williams
20. Letter to W. Sanborn (3/19/04) - 2 typed pages - by R. Sexton
21. Memo to File (5/19/04) - 1 typed page - by R. Sexton
You may inspect and/or copy said file(s) on or after July 6, 2004 during regular business hours (8:00 a.m. - 5:00 p.m., Monday through Friday) and the price per copy is ten (10) cents per page.
Again requesting "all documents and information obtained by the [LFUCHRC]" relative to his claim, Mr. Kincaid now appeals from this disposition of his request. 1 According to Mr. Kincaid, the LFUCHRC "has failed to [conduct an] on-site investigation which is stated [in its] brochure," as he requested. Likewise, the LFUCHRC "failed to call any of [his witness[es] which were eager and willing to testify on [his] behalf." In relevant part, Mr. Kincaid argues that the LFUCHRC "has failed to provide [him] with any information gathered and obtained by the process."
Upon receiving notification of Mr. Kincaid's appeal, Edward E. Dove, LFUCHRC attorney, responded on behalf of the LFUCHRC. In Mr. Dove's view, the LFUCHRC has provided Mr. Kincaid with all of the records to which he is entitled under the Open Records Act so he is "confused" as to "what Mr. Kincaid is appealing." As Mr. Dove correctly observes, Mr. Kincaid "does not seem to be objecting to the documents that the [LFUCHRC] provided" to him but, rather, has concerns regarding how the LFUCHRC investigators conducted the investigation into his claim which this office cannot address in the context of an open records appeal. It is the position of the LFUCHRC that Mr. Kincaid has been provided with all nonexempt records which are responsive to his request. However, if Mr. Kincaid "could be more specific as to what document he believes is being withheld in violation of the Open Records Act" the LFUCHRC will address that particular issue. 2
As a public agency, the LFUCHRC is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which an agency must follow in responding to a request submitted pursuant to the Open Records Act. In relevant part, 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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996).
Although the LFUCHRC cited KRS 61.878(1)(i), (1)(j), (1)(k), 3 and KRS 344.250(6) in support of its position that it has provided Mr. Kincaid with all of the responsive records to which he is entitled under the Open Records Act, the LFUCHRC failed to provide any explanation of how those exceptions apply to the records withheld as expressly required by KRS 61.880(1). 4 To this extent, the response of the LFUCHRC is procedurally deficient. In order to discharge its statutory duty, the LFUCHRC must not only cite the applicable exceptions, but provide a brief explanation of how those exceptions apply to the records, or portions of thereof, withheld. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As this office recognized in 97-ORD-41:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
Id., p. 6; 04-ORD-106. In short, the LFUCHRC's cursory citation of the applicable exceptions lacks the specificity envisioned by KRS 61.880(1). As long recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-080; 02-ORD-187. To avoid future violations, the LFUCHRC should adhere to these guidelines in responding to requests submitted pursuant to the Open Records Act.
Turning to the substantive issues presented by this appeal, our resolution hinges on whether those records withheld by the LFUCHRC were adopted by Mr. Wharton, the Executive Director, as a basis for the final action taken by the LFUCHRC relative to Mr. Kincaid's claim. Assuming the specified records were not adopted by Mr. Wharton as a basis for his final determination, as appears to be the case, the LFUCHRC properly relied upon KRS 61.878(1)(i) and (1)(j) in denying Mr. Kincaid's request as to those records. KRS 61.878(1)(i) and (1)(j) are intended to protect the integrity of an agency's internal decision making by encouraging the free exchange of opinions and recommendations. To this end, the Attorney General has consistently interpreted these provisions to authorize the nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. 98-ORD-168; 95-ORD-109; 94-ORD-92; 93-ORD-26; OAG 90-97; OAG 89-39; OAG 88-85; OAG 88-24; OAG 86-34.
In our view, the issue presented by this appeal is analogous to the issue resolved by the
Kentucky Court of Appeals in City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1992), namely, whether the internal investigative files of the Louisville Police Department were exempt from public inspection under KRS 61.878(1)(i) and (1)(j). 5 Answering in the affirmative, the Court observed:
Internal affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder 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.
City of Louisville, supra, at 659. See also
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953 (1983);
Courier-Journal & Louisville Times Co. v. The University of Kentucky, Ky., 830 S.W.2d 373 (1992); 98-ORD-168; 95-ORD-109; 94-ORD-92; OAG 88-25; OAG 87-64; OAG 87-32; OAG 87-10; OAG 83-341; OAG 80-43. Because the instant appeal presents no reason to depart from this governing precedent, the same outcome necessarily follows.
When a claim is filed with the LFUCHRC, the case is assigned to an investigator whose function is to collect evidence and make recommendations relative to the claim in a final investigative report which the Executive Director may or may not adopt in his letter of determination. 94-ORD-92, p. 4; 98-ORD-168; 95-ORD-109. Here, the records withheld by the LFUCHRC consist of the investigator's notes and memoranda, the investigative log, final investigative report, investigative plan, related correspondence, and a memo to the file. Like the Internal Affairs Division of the Louisville Police Department, the investigator for the LFUCHRC does not have the authority to issue a binding decision, but instead acts strictly as a fact finder. Likewise, the records generated during the course of his investigation remain preliminary unless adopted by the Executive Director as a basis for his final determination relative to the claim. Id.
Here, the record is devoid of evidence upon which to base such a conclusion. Absent evidence to the contrary, however, this office assumes that Mr. Wharton did not expressly adopt the investigator's findings or recommendations as a basis for his final determination just as he did not in the matters which culminated in 94-ORD-92, 95-ORD-109, and 98-ORD-168. That being the case, the records at issue are still properly characterized as preliminary and, therefore, are not subject to public inspection. Given our resolution of this issue, further comment as to the remaining arguments raised by the LFUCHRC is unnecessary.
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 proceedings.
Footnotes
Footnotes
1 In addition, Mr. Kincaid requests that the "[Commonwealth] of Kentucky investigate the complete failure of the Commission to perform [its] duties in serving the working citizens within the [Commonwealth] of Kentucky." However, an appeal filed under the Open Records Act is not the proper forum in which to address such concerns.
Although Mr. Kincaid purportedly filed his appeal "by authority of the Freedom of Information Act, " as a "public agency" under KRS 61.870, the LFUCHRC properly treated Mr. Kincaid's request as a request for public records submitted pursuant to the Kentucky Open Records Act. In Ferguson v. Alabama Criminal Justice Information Center, 952 F.Supp. 1446, 1447 (M.D. Ala. 1997), the United States District Court conclusively resolved this threshold issue, holding that neither 5 U.S.C. § 552, the Freedom of Information Act, nor 5 U.S.C. § 552(a), the Privacy Act, apply to state agencies. Accordingly, our analysis focuses exclusively on whether the LFUCHRC complied with the Kentucky Open Records Act in partially denying Mr. Kincaid's request.
2 In supplemental correspondence received by this office on August 31, 2004, Mr. Kincaid reiterates both his request for "all documents within the case file" and an investigation into the alleged failure of the LFUCHRC to "do a thorough and complete investigation into" his claim against Georgia Pacific.
3 KRS 61.878(1)(i) and (1)(j), respectively, exclude the following records from application of the Open Records Act absent a court order:
(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[.]
KRS 61.878(1)(k) excludes: "All public records or information the disclosure of which is prohibited by federal law or regulation[.]" Noticeably absent from the LFUCHRC's response is any indication of which federal laws or regulations apply or which records can purportedly be withheld under federal law.
4 KRS 344.250(6) provides:
It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter.
5 At the time, KRS 61.878(1)(i) and (1)(j) were codified as (1)(g) and (1)(h), respectively, but the language in the current version is identical.