Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Blackburn Correctional Complex violated the Open Records Act in the disposition of Calvin Goddard's request for "a copy of [Captain Larry Callis's] investigation into [Mr. Goddard's] racial discrimination complaint . . . filed on May 19, 2004, against several employees of the Kentucky Horse Park." Captain Callis denied Mr. Goddard's request on the basis that "[t]here was [sic] no formal reports written to copy." 1 For the reasons that follow, we find that Captain Callis's response was deficient to the extent that he failed to acknowledge the existence of his May 20, 2004, memorandum to Deputy Warden Pat Turpin and to articulate a statutory basis for denying Mr. Goddard access to that memorandum, but that because BCC has no authority to take action on Mr. Goddard's complaint the facility properly withheld the memorandum on the basis of the belatedly invoked exception.
In supplemental correspondence directed to this office following commencement of Mr. Goddard's appeal, Justice and Public Safety Cabinet Staff Attorney Emily Dennis acknowledged Captain Callis's error in failing to acknowledge the existence of his May 20 memorandum to Deputy Warden Turpin, but advised:
Captain Callis did not consider his memorandum to constitute the findings of an investigation of Mr. Goddard's allegations of racial discrimination. Mr. Goddard had not filed a complaint at Blackburn Correctional Complex, rather he filed a complaint at the Kentucky Horse Park, where he was serving on a Governmental Services Program work detail. Regardless of whether Captain Callis conducted an investigation or issued a "formal report" to Deputy Warden Pat Turpin, it is my opinion that Captain Callis should have acknowledged existence of the 5/20/2004 memorandum from Captain Callis to Deputy Warden Turpin, but further explained the memorandum is exempt from disclosure as an internal memorandum that does not form the basis of final agency action under KRS 61.878(1)(i) 2 in response to Mr. Goddard's 7/19/2004 request that is identical to the 7/22/2004 request, which apparently has not been received by BCC. I have informed Captain Callis and Betty Ann Walker of this procedural error and the importance of acknowledging the existence of public records even if the records are exempt from disclosure under the open records act.
To facilitate our review in this matter, BCC subsequently provided this office with a copy of the disputed memorandum pursuant to KRS 61.880(2)(c). 3 Our review of that memorandum confirms BCC's position.
KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]" This exception "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendation. " 94-ORD-132, p. 3; OAG 90-97; OAG 89-39; OAG 88-85; OAG 88-24. The underlying purpose of the exception is analyzed at page 4 of OAG 88-85:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
Fundamental to the cited decisions is the recognition that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act, "
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995), and that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. "
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-78.
In 00-ORD-89 the Attorney General was asked to review the City of Louisville's denial of a request for a memorandum prepared by the chief of police and directed to the deputy mayor concerning an internal review of an ancillary division. The City relied on KRS 61.878(1)(j), noting that the disputed document was "a preliminary, non-final, internal inter-office memorandum containing opinions and recommendations, " and we affirmed. Conversely, in 00-ORD-168 the Attorney General determined that the Purchase Area Development District improperly relied on KRS 61.878(1)(j) in resisting disclosure of a memorandum from the Department of Energy, containing post-employment opinions and advice, that was adopted by the Purchase Area Development District as the basis for a hiring decision. There, we held that the letter:
forfeited its preliminary characterization when it was adopted . . . as the basis in part of [the] decision to hire. . . . The courts and this office have long recognized that predecisional documents that are [adopted as the basis of] final agency action no longer enjoy the protection of KRS 61.878(1)(j).
00-ORD-168, p. 4, citing
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982);
University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992).
In City of Louisville, above, the Kentucky Court of Appeals applied KRS 61.878(1)(j), as well as KRS 61.878(1)(i), to an internal affairs investigation conducted by the City of Louisville Police Department, opining:
[S]ubsections [(i)] and [(j)] . . . 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 fact-finder for the convenience of the Chief and 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 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.
(Emphasis added); accord,
University of Kentucky v. Courier Journal and Louisville Times at 378 (holding "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). Critical to these courts' analyses was the presumption that the agencies resisting disclosure of the requested records were authorized to take final action in the matter to which the records related.
Nothing in the record before us supports such a conclusion with regard to Mr. Goddard's complaint. That complaint, BCC notes, was filed with the Kentucky Horse Park and apparently related to the conduct of park employees. The memorandum which Captain Callis was apparently directed to generate is informational, rather than investigative, in character, containing the Captain's impressions and opinions following discussions with those employees, and is clearly intended to be an internal communication. Mr. Goddard presents no evidence that the memorandum was adopted as the basis of any action on the part of BCC, and BCC steadfastly maintains that it is preliminary in nature. Based on these facts, we conclude that the memorandum is indeed shielded from disclosure by KRS 61.878(1)(j).
Having so determined, we nevertheless remind BCC of its obligations in responding to an open records request. Captain Callis was less than forthcoming in denying the existence of any records responsive to Mr. Goddard's original request. We therefore find that BCC's original response violated KRS 61.880(1) . We urge the facility to review the cited provision 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 proceeding.
Calvin Goddard, # 122155Blackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Betty Ann WalkerBlackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Emily DennisDepartment of CorrectionsOffice of General Counsel2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 Mr. Goddard states that he submitted a request for the same record on July 19, 2004, but that that request went unanswered. BCC has no record of receipt of the request and adduces proof of nonreceipt in the form of the facility's Open Records Request Log for the period from July 13, 2004, to July 20, 2004. This office is not equipped to resolve a factual dispute of this nature, to wit delivery or non-delivery of an open records request, and we respectfully decline to do so.
2 Although BCC belatedly cited KRS 61.878(1)(i), its argument in support of the denial of Mr. Goddard's request is based on an analysis of KRS 61.878(1)(j) and our review of its denial proceeds from the assumption that the exemption was erroneously cited.
3 KRS 61.880(2)(c) provides that "[t]he Attorney General may . . . request a copy of the records involved [in the appeal] but they shall not be disclosed."