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 Campbell County Police Department violated the Kentucky Open Records Act in partially denying the request of Samantha L. DeMauro for specified disciplinary and investigative records. Although the CCPD cannot produce for inspection or copying records which do not exist, the CCPD also cannot satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c) with a blanket denial of access to all investigative files concerning a concluded investigation on the bases of KRS 61.878(1)(i) and (j).
By letter directed to Chief Keith D. Hill on January 8, 2007, Ms. DeMauro requested the following:
. A complete copy of all disciplinary actions contained in Assistant Chief Todd Straman's personnel file
. A copy of all internal investigation notes, and the findings involving Assistant Chief Todd Straman
. A copy of the internal investigation conducted by Col. William Dorsey, which was the result of a complaint by officers' wives to the Fiscal Court (10/06) regarding a hostile work environment
. A copy of the results of the recent investigation conducted by Col. William Dorsey
. A copy of the e-mail sent by Chief Keith Hill to department employees notifying them of Col. William Dorsey's findings, specifically that a hostile work environment does exist within the department
On January 17, 2007, Ms. DeMauro initiated this appeal, indicating that she had not received a response from the CCPD as of that date.
Upon receiving notification of Ms. DeMauro's appeal from this office, Chief Hill responded on behalf of the CCPD. As correctly observed by Chief Hill, the CCPD responded within the statutory time frame of three business days; the CCPD received the request on January 11, 2007, and mailed a written response on January 17, 2007 (January 13 and 14, 2007, was a weekend, and January 15, 2007, was Martin Luther King, Jr. Day, a recognized holiday). Attached to Chief Hill's letter is a copy of the original response dated January 16, 2007, a modified 1 copy of which the CCPD mailed again to Ms. DeMauro, along with a copy of the Campbell County Fiscal Court 2007 Holiday Schedule, on January 29, 2007. With regard to disciplinary actions in Assistant Chief Straman's personnel file, Chief Hill advised Ms. DeMauro the request would be honored "upon receipt of payment from attached invoice for cop[y]ing and postage charges." In denying Ms. Demauro's request for the specified investigative notes and findings, Chief Hill again quoted the language of KRS 61.878(1)(h) and (1)(i) without further elaboration. 2 According to Chief Hill, the CCPD is unable to honor Items 3-4 of Ms. Demauro's request because "no written report was completed." Likewise, Chief Hill denies that a responsive e-mail currently exists, "as there was no e-mail sent by Chief Hill specifically stating that a hostile work environment does exist within the department." 3
Unable to resolve the issues presented by this appeal based on the limited evidence of record, the undersigned posed a series of questions to Chief Hill by letter dated February 14, 2007, in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. More specifically, the undersigned asked Chief Hill to provide this office with a copy of the entire investigative file for in camera review 4 and to answer the following questions (his response appears below):
1) Has the subject "administrative investigation" been completed?
Yes.
2) What harm, if any, would result from disclosure of "all internal investigative notes, and the findings involving Assistant Chief Todd Straman"?
The open records response of January 16, 2007, incorrectly cited KRS 61.878(1)(h) as the basis for exclusion of certain records. This error was corrected in part by the response of January 29, 2007 to Samantha L. DeMauro indicating the records in question were excluded under KRS 61.878(1)(i) and (j). The records should not have been excluded under KRS 61.878(1)(h). Therefore, we withdraw KRS 61.878(1)(h) as the basis for exclusion of records[.]
3) Please provide this office with a copy of the entire investigative file, including the notes and findings at issue.
Attached.
4) Please elaborate upon your assertion that "no written report was completed" if/when the matter was resolved.
Matter was resolved by Mr. Dorsey [on] Wednesday, December 6, 2006. Mr. Dorsey did not provide a written report. Mr. Dorsey verbally reported his findings. 5
5) In denying Ms. DeMauro's request for the specified e-mail, you indicated "there was no e-mail sent by Chief Hill specifically stating that a hostile work environment does exist within the department"; please provide this office with a copy of any e-mails directly relating to this matter and/or which could arguably be construed as potentially responsive.
Attached.
(Original emphasis). Although the CCPD is not statutorily obligated to produce for inspection or copying records which do not exist, 6 such as the written reports at issue (the "internal investigation" conducted by Colonel William Dorsey and the results of same), nor can the CCPD satisfy the statutory burden of proof imposed upon public agencies by KRS 61.880(2)(c) with a blanket denial of access to all investigative files in response to a specific request for "all internal investigative notes, and the findings" involving Assistant Chief Straman). See 01-ORD-83, p. 13. "When the 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 not only contains "persuasive proof" that Chief Hill's investigative notes were adopted as the basis for the final action of the CCPD relative to Assistant Chief Straman, each of the documents entitled "Report of Investigation and Findings" prepared by Chief Hill upon concluding his investigation of the complaints largely mirror his notes and necessarily form the basis of his "Findings," which apparently constitute the final action of the CCPD. Accordingly, "the file's preliminary characterization was lost, as was its exempt status. " 02-ORD-25, p. 4.
Our analysis is necessarily guided by the legislative statement of policy codified at KRS 61.871, that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). Nevertheless, this office is also cognizant 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 drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)[(i) and (j)]. From these exclusions, we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for government confidentiality.
Beckham, supra, at 577-578; See also
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d at 6-8 (1995)(recognizing that the "concept of governmental confidentiality has not been totally diluted by the Open Records Act" ).
Both the courts and this office have construed the language of KRS 61.878(1)(i) and (j), upon which the CCPD relies in denying access to records generated during the concluded investigation at issue, in various contexts. See 02-ORD-86; 01-ORD-104; 00-ORD-98; 99-ORD-220; 97-ORD-183. Guided by an evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status upon being adopted by the agency as a basis for its final action.
Applying the cited exceptions to reports generated during the course of an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Court of Appeals held as follows:
It is the opinion of this Court that subsections [(i) and (j)] quoted above 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 the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is 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.
. . . We do not find that the complaints are per se exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. . . .
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658-660 (1982) (emphasis added).
One year after City of Louisville, the Court reaffirmed its position in a case involving public access to complaints filed against licensed physicians with the Kentucky State Board of Medical Licensure, holding that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once the Board has taken final action relative to the complaint.
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1983). Of particular relevance here, the Court again observed:
If these documents were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status. Id. at 659.
Kentucky Bd. of Medical Licensure, supra, at 956. (Emphasis added). 7 Nine years passed before the courts revisited this issue in a published opinion. In
University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373, 378 (1992), the Kentucky Supreme Court ratified the principle 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. " (Emphasis added). 97-ORD-168, p. 5.
In the intervening years, the issue presented was raised in multiple appeals and this principle was the common thread among the resulting decisions. See OAG 89-69; OAG 88-25; OAG 84-98; OAG 83-405. Said another way, each of the cited decisions was premised on the following notion:
Predecisional and investigative documents which are incorporated by the agency into its final action forfeit their preliminary status and are therefore subject to inspection. . . . Records which are of a purely internal preliminary investigatory nature are exempt. . . . Records which are preliminary in character but are subsequently adopted by the agency as a basis of its final action become releasable as public records.
97-ORD-168, pp. 5-6, citing 93-ORD-103, p. 11 (emphasis added); See 04-ORD-162. Acknowledging that the Kentucky State Police had correctly summarized the rule of law set forth in City of Louisville and its progeny, in 97-ORD-168, the Attorney General nevertheless concluded that the agency had interpreted "the rule too broadly." Id., p. 6. In relevant part, this office reasoned:
The cases and opinions cited above establish that an internal affairs report cannot 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 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.
Id., pp. 6-7. In our view, this line of decisions is equally applicable on the facts presented. See, in particular, 97-ORD-168, pp. 2-7. See also 99-ORD-164.
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. Because the final decision maker signaled his concurrence with the investigating officer's findings and recommendations on the report, which, in turn, was physically incorporated into his final decision relative to the inquiry, the investigative report did not maintain its preliminary characterization. 97-ORD-168, p. 7. Compare 01-ORD-83 and 01-ORD-47, both of which reaffirm the validity of 97-ORD-168. In addition, 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), provided this office with an opportunity to clarify when a preliminary report becomes open for inspection. 8
On the facts presented, the analysis is more straightforward insofar as Chief Hill, who is presumably the "final decision maker" here, conducted the investigation (interviewed witnesses, etc.), evaluated the evidence gathered, and ultimately documented the process along with his evidentiary conclusions in a "Report of Investigation and Findings on Complaint by on Lieutenant Colonel Todd Straman" in both instances. Chief Hill's "Findings" apparently constitute the final action of the CCPD relative to each complaint ( Not Sustained, "as the investigation fails to discover sufficient evidence to prove or disprove clearly [the] allegations made in the complaint," but investigation "does Sustain that Todd Straman violated Section 1.13 of the [CCPD] Policy and Procedure Manual and Code of Conduct" in both cases). 9 As in 97-ORD-168, the evidence of record compels this office to conclude that findings and recommendations of the final decision maker, Chief Hill, formed the basis of the final action and lost their preliminary characterization to that extent. See 01-ORD-123.
That being said, the CCPD 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 which implicate privacy concerns of this magnitude, or which the disclosure of 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.
Samantha L. DeMauro907 Trellises Dr., Apt. # 404Florence, KY 41042
Chief Keith HillCampbell County Police Department8774 Constable DriveAlexandria, KY 41001
Justin D. VerstCampbell County Attorney600 Columbia StreetNewport, KY 41071
Footnotes
Footnotes
1 Belatedly citing KRS 61.878(1)(a), the CCPD redacted names from the records produced in response to Item 1 of the request without specifying which names or explaining how this exception applies. In addition to citing KRS 61.878(1)(h) as the basis for declining to provide "the complete administrative investigation, " the CCPD indicated that its "investigative files" are exempt from inspection "as preliminary under KRS 61.878(1)(i) and (j)."
2 To this extent, both responses of the CCPD are procedurally deficient; KRS 61.880(1) mandates that a public agency not only cite the "specific exception authorizing the withholding of the record," but provide a "brief explanation of how the exception applies to the record withheld. " See 05-ORD-028, pp. 5-7.
3 In 05-ORD-221, a copy of which is attached hereto and incorporated by reference, this office analyzed KRS 61.878(1)(i) and (j) in reference to e-mail. Although the analysis applies with equal force here, the CCPD does not cite either of those exceptions in denying Ms. DeMauro's request for the specified e-mail, relying instead upon its alleged nonexistence; nor could the CCPD successfully invoke KRS 61.878(1)(i) or (j) as evidenced by 05-ORD-221. In our view, the e-mail is arguably responsive and should be released unless the CCPD can and does meet its burden of proof.
4 While this office is precluded from revealing the content of the records in detail, the records can generally be described as (copies of) a written statement from an officer claiming that he was the victim of sexual harassment and a hostile work environment, a "confidential memorandum" prepared by a different officer containing similar allegations, a "Report of Investigation and Findings" on each complaint, a document containing a chronology of the investigation with handwritten notes in the margins, the original handwritten notes (which are nearly identical to much of the corresponding summaries in the final reports, all of which Chief Hill prepared), and the single responsive e-mail from Chief Hill to three named officers (and copied to another two) advising that the "investigation by Mr. Dorsey has been completed." In addition, Chief Hill indicates that the investigation was "turned over" to him due to his lack of involvement.
5 Noticeably absent from the record is any explanation of the role played by Mr. Dorsey in the subject investigation and/or his identity in general aside from the reference in Ms. DeMauro's request concerning the internal investigation which he apparently conducted.
6 With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records, the analysis contained in 06-ORD-040, a copy of which is attached hereto and incorporated by reference, is controlling.
7 Quoting the trial court, the Court of Appeals concluded:
It would appear to this court and it is so held, that those documents defined in Subsections [(i)] and [(j)] which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records under Subsection [(h)], unless exempted by other provisions of KRS 61.870 through KRS 61.884. Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under Subsections [(i)] and [(j)] of the Act.
Id. at 956-957. (Emphasis added).
8 In rejecting the agency'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 engaged in the following analysis:
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. 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 (emphasis added). Because the Chief did not adopt the investigative report at issue as the basis of the final action by the agency, this office found the agency had properly withheld the report.
9 Neither party offers any insight as to exactly how the investigative process at CCPD works, nor does the record contain any evidence from which a contrary inference regarding the role of Chief Hill could logically be drawn.