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 Kentucky Board of Dentistry properly relied on KRS 61.878(1)(i) in denying attorney D. Sean Nilsen's October 30, 2006, requests for copies of the initiating complaints and the entire files related to a pending investigation against his clients, Dr. Robert L. Schroering and Dr. Ken Parish. For the reasons that follow, we affirm the Board's denial of Nilsen's request.
By letter dated November 1, 2006, Eric T. Clark, Executive Director of the Board, responded to the requests, advising that the requested records were exempt from disclosure under KRS 61.878(1)(h) 1.
Shortly thereafter, by letter dated November 9, 2006, Mr. Nilsen initiated the instant action, appealing the Board's refusal to provide the requested documents relating to the investigation of his clients. 2
After receipt of notification of the appeal, Mark Brengelman, Assistant Attorney General, Counsel for the Board, provided this office with a response to the issues raised in the appeals. In his response, Mr. Brengelman advised that the Board received an initiating complaint from a member of the public regarding certain identified advertising by the two dentists. He further advised, in relevant part:
Enforcement action is not completed at this time, nor has a decision been made to take no action. The Board must complete its investigation and decide whether to dismiss the matter for insufficient evidence of a violation or law, or whether the "facts alleged constitute a prima facie violation" for which the Board "shall issue a Formal Complaint, in accordance with KRS Chapter 13B." 201 KAR 8:400 § 3(3) and 3(4)(a). Documents compiled to date include the initiating complaint and copy of the advertisement (s) at issue and complained about to the Board.
?
The request sought "a copy of the [initiating] complaint and the Board's entire file on this issue." The Board first relies on KRS 61.878(1)[i] to hold as exempt the "copy of the initiating complaint" as a "correspondence with a private individual, other than correspondence which is intended to give notice of final action of a public agency. " The initiating complaint is what initiates an inquiry by the Board, and in this case, has proceeded to an investigation. The initiating complaint does not represent final agency action. To the contrary, the initiating complaint starts the Board's authorized investigative process found in 201 KAR 8:400. Because the initiating complaint is a correspondence with a private individual, and does not give notice of final agency action, it is exempt per KRS 61.878(1)[i]. . . .
We are asked to determine whether the Board's denial of Mr. Nilsen's requests violated the Open Records Act. Because the Board's investigation of the complaint is ongoing and no final action has been taken on it, the Board properly relied upon KRS 61.878(1)(i) in denying the requests and, thus, did not violate the Act.
KRS 61.878(1)(i) authorizes 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.
In discussing the application of KRS 61.878(1)(i), as well as KRS 61.878(1)(j), 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 Board's investigation concerning the complaint against the two dentists is ongoing. Because final action had not been taken on the complaint, we affirm the Board's decision to withhold the disputed complaint and copies of the advertisement (s) at issue, which we assume were attached to the complaint as they would be an integral part of the actions complained about to the Board, under authority of KRS 61.878(1)(i). 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.
Because the foregoing is dispositive of the instant appeal, we need not address other bases relied upon by the Board in denying the request.
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 It is unclear from the record before us whether the Board, in its initial response, was relying on KRS 61.878(1)(h) or it miscited KRS 61.878(1)(i), as it cites both in its supplemental response. To the extent the Board failed to provide a brief explanation in its initial response as to how the cited exception applied to the records withheld, its response constituted a procedural violation of KRS 61.880(1).
2 In his letter of appeal, Mr. Nilsen also complains about the Board's policy and practice not to provide any information or documentation regarding the investigation prior to an informal meeting. This is a matter outside the scope of an appeal under the Open Records Act. We cannot address, in the context of an open records appeal, non-open records issues of this nature. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Our review is confined to the issue of whether the Board violated the Open Records Act in its handling of Mr. Nilsen's requests, which, as noted above, we concluded it did not.