Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Bardstown Police Department (BPD) violated the Open Records Act in denying the request of Bob White, reporter for The Kentucky Standard, for a copy of a complaint against Officer Bill Buckman filed with the Bardstown Police Department.
By letter dated January 19, 2006, Mr. White requested copies of any complaints filed with the BPD between January 1, 2006 and January 19, 2006. In addition, he requested copies of any notices of disciplinary action against police officer Bill Buckman, Buckman's date of hire and copies of any notices of commendations or awards Buckman has received during his employment with the BPD.
By response dated January 20, 2006, the BPD advised:
Attached are the records of the City of Bardstown pertaining to Officer Bill Buckman pursuant to your Open Records request except for a complaint received on January 19, 2006, which is still under investigation. These records are currently exempt pursuant to KRS 61.878(1)(h) or (i) until a final decision is made concerning the complaint. 1 There are no records of any disciplinary actions.
On January 23, 2006, Mr. White initiated the instant appeal, challenging the BPD's denial of his request for the complaint.
For the reasons that follow, we conclude that the BPD properly withheld disclosure of the complaint concerning Officer Buckman, under authority of KRS 61.878(1)(i) and (j), as the investigation was still ongoing and no final action on the complaint had been taken. Those exceptions authorize 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 discussing the application of these preliminary exemptions to disclosure of a complaint or a charging document, this office, in 05-ORD-005, pages 9-10, observed:
It is well established that a complaint, initiating or charging document, or any other document that spawns an investigation must be made available for public inspection at the conclusion of the investigation and upon the imposition of final agency action, including the decision to take no action. City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal and Louisville Co., Ky., 830 S.W.2d 373 (1992); Palmer v. Driggers, above; accord, 93-ORD-103; 01-ORD-83. Thus, in City of Louisville, above at 659, the Court of Appeals observed:
In Board of Medical Licensure, above at 956, the Court of Appeals reaffirmed this view, opining:
It follows that a complaint, initiating or charging document, or any other document that spawns an investigation may be withheld until the investigation is concluded and final action taken, including a decision to take no action. See, e.g., 93-ORD-108, p. 2, (agency properly withheld complaint where "no final action had been taken . . . and the complaint was still under investigation").
As noted above, the BPD's investigation concerning the complaint against Officer Buckman was ongoing. Because final action had not been taken on the complaint, we affirm the BPD's decision to withhold the disputed complaint pursuant to KRS 61.878(1)(i) and (j). However, after final action has been taken, including the decision to take no action, the complaint, the record of the final action, and any record adopted as a basis for the final action, is open for public inspection.
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.
Footnotes
Footnotes
1 BPD cited KRS 61.878(1)(h) and (i), in support of the denial of Mr. White's request. We believe that this was a miscite of the applicable exceptions, KRS 61.878(1)(i) and (j), since the denial was based upon nondisclosure until a final decision is made on the complaint. Accordingly, our review of its denial proceeds from the assumption that the exemptions were erroneously cited and our analysis will be under KRS 61.878(1)(i) and (j).