Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Board of Licensure for Professional Engineers and Land Surveyors violated the Kentucky Open Records Act in denying the request of Earl Rogers III for copies of "[a]ny memos, or directives to or from the Investigative Review Committee, as well as any minutes of any meeting of the Investigative Review Committee, as well as email to or from the Investigative Review Committee, Orders of Appointment to the Investigative Review Committee with respect to the investigation of James A. West, Board File No. 03129 and investigation of Joseph B. Curd, Board File No. 05-005." Because any existing memoranda, directives or e-mails have not been adopted as a basis for any final action of the Board, those documents retain their preliminary status; accordingly, the Board properly relied upon KRS 61.878(1)(i) and (j) in denying access consistent with governing authorities. 1 Any "orders of appointment" must be disclosed as there is no statutory basis for protecting the identities of those appointed to serve on the Committee.
By letter dated March 27, 2008, Mr. Rogers requested "to be provided photocopies of such documentation" or, in the alternative, for the Board to "advise when said documents could be made available for inspection and copying." 2 On April 3, 2008, Assistant Director Robert W. Fentress, PLS declined to furnish Mr. Rogers with access to any records concerning the investigations of Mr. West and Mr. Curd, relying in relevant part on KRS 61.878(1)(i) and (j). In support of the agency's position, Mr. Fentress argued that disclosing "the preliminary comments, memoranda, opinions and/or recommendations, as well as the identity of those individuals on the [Committee] that led to the decision that a violation of the licensing laws and/or regulations has been committed would [] open those individuals to possible retaliation." As further explained by Mr. Fentress, the Committee "consists of the Executive Director of the Board and two other members of the Board appointed by the Chairman of the Board whose identities are not known to each other, or to any other member of the Board except for the Chairman who appointed them." Members of the Committee "function independently of each other and their sole purpose is to assist the Executive Director in the determination that there exists in the investigative report, sufficient evidence to support any charge of a violation of the laws and regulations that govern the profession of land surveying or engineering."
According to Mr. Fentress, a new Committee is appointed for each investigation. Should any member of the Committee determine that a violation of the rules governing the profession has occurred, "the Executive Director may direct Board Counsel to draft a complaint to initiate the legal proceeding." Accordingly, Mr. Fentress asserts that all matters of the Committee are preliminary to the decision of the Executive Director "to initiate a legal complaint against the Respondent under KRS 13B. At no time does the Executive Director ever adopt the notes or recommendations of any member of the [Committee] as part of his decision to direct the preparation of the legal complaint." No final action is taken by the Board "until such time as the case is complete and all times for appeal have run." From a policy standpoint, Mr. Fentress contends that Board members, who are not attorneys, "should be free to express their opinions without fear of retribution from the individual who is of course, not likely to be happy that his professional conduct is being questioned or even commented upon." In his view, the members of any regulatory board "must be free to express their opinions in the process of bringing disciplinary actions against members" for the agency to "be able to conduct its business of protecting the public." The individual under investigation "is afforded his well-established rights under KRS 13B in defending the action, but the preliminary decision making process to get to that point should be kept confidential so as to encourage the various regulatory boards to be able to perform their function of protecting the public."
By letter dated April 8, 2008, Mr. Rogers initiated this appeal from the denial of his request, disagreeing with the Board's application of KRS 61.878(1) 3 "because any decision by the [Committee] is not a final action but rather an initiation of an action." With regard to KRS 61.878(1)(j), Mr. Rogers again challenges the Board's characterization of the process insofar as the Committee "does not formulate policy but rather makes a decision as to whether or not to charge an individual engineer or land surveyor with violations of regulatory standards." In addition, Mr. Rogers notes that "the matter regarding Mr. West, Board file no. 03129 is a closed matter. The matter regarding Mr. Curd, Board file no. 05-005 is an open matter in which an administrative hearing was conducted but there has been no final decision or recommendation. " In his capacity as legal counsel for Mr. Curd, Mr. Rogers asked for the records in question "during the administrative hearing and was denied that information by the Board and the Administrative Law Judge." Mr. Rogers believes "it is imperative that the process of the [Committee] including the names of the appointees and the minutes of their meetings 4 or emails as to [their] findings be subject to public review in order to [e]nsure that charges brought against licensees are properly brought."
Upon receiving notification of Mr. Rogers' appeal from this office, General Counsel Jonathan Buckley responded on behalf of the Board, maintaining that "any records of the [Committee] would be subject to exclusion" under any of the cited subsections of KRS 61.878(1). As clarified by Mr. Buckley, "there is a separate 'committee' appointed for each case, though the Executive Director is a member of all Investigative Review Committees. The function of the two Board members appointed on any such committee is to assist the Executive Director of the Board in evaluating the report produced by the investigation." Though not prohibited from doing so, the Committee "does not function like a committee in the usual sense of having meetings or deliberations, and subsequently voting on actions of the committee; rather, each of the two Board members of the Committee acts independently to review the investigative report and to form his or her own opinion." 5 According to Mr. Buckley, there is no "legal prohibition" on any member discussing the matter at hand with any other member of the Board or with Board staff; however, "there is usually no 'action or vote of the committee.'" Neither the Committee as a whole nor any member of the Committee "has any authority to initiate any action against the person under investigation. Each member of the Committee can only express his or her opinion to the Executive Director of the Board, and it is the decision of the Executive Director to initiate the filing of a complaint against a licensee."
As reiterated by Mr. Buckley, the "sole purpose of the members appointed to serve on the committee of any particular case, is to help the Executive Director in his decision to resolve the matter at hand by filing formal charges or by closing the matter." The actions of any committee "are just a part or phase of the investigation that leads up to the initiation of formal charges . . . . All matters of the members of the [Committee] are therefore preliminary matters to the decision of the Executive Director to initiate a legal complaint against the Respondent under KRS 13B." According to Mr. Buckley, the Executive Director does not "ever formally adopt the notes or recommendations of any member of the [Committee] as part of his decision to direct the preparation of the legal complaint. The decision to file formal charges is his and his alone, and it is at his direction, working with the Board's General Counsel, that the legal complaint is drafted."
Having reiterated the Board's earlier policy arguments, Mr. Buckley asserts that any "comments or opinions expressed by any of the [Committee] members are clearly part of the investigative process leading up to the decision by the Executive Director to bring formal charges. " Mr. Rogers has requested these records "in the middle of a proceeding in which the Hearing Officer has not even rendered his findings." 6 Release of any such opinions, if ever, "should occur only after the action is completed. Hearings and legal actions are emotionally charged proceedings and by the time the proceedings are concluded through all courts, emotion tends to diminish substantially." In further support of the Board's position, Mr. Buckley notes that "members who serve on the Board are private individuals who have other full-time jobs. The members receive a per diem stipend and expenses while working on Board matters, but are not otherwise salaried." From his perspective, subjecting the members' "evaluative comments to public scrutiny would certainly have a chilling effect which would not be in the best interests of the legislative mandate to protect the public." Relying upon KRS 61.878(1)(j) and
City of Louisville v. The Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (1982), the Board maintains "that it serves no public policy to open up its preliminary workings and deliberations and that to the contrary, to do so, would create a decidedly intimidating and chilling atmosphere that would necessarily negatively impact" the Board's ability to perform its legislative mandate to protect the public.
In discharging the statutory duties mandated by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, declaring 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, " as well as the Kentucky Supreme Court's pronouncement that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, 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 6, 8 (1995)(recognizing that the "concept of governmental confidentiality has not been totally diluted by the Open Records Act" ).
Although our research has revealed no authority which is factually on point, both this office and the courts have construed the language of KRS 61.878(1)(i) and (j), upon which the Board relies, in various contexts. See 07-ORD-090; 05-ORD-280; 05-ORD-177; 04-ORD-187; 02-ORD-097; 02-ORD-86; 99-ORD-220; 97-ORD-183. In an early open records decision, the Attorney General observed:
Not every paper in the office a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2; 04-ORD-030. Guided by an evolving body of case law, the Attorney General has long recognized that public records which are preliminary forfeit their exempt status only upon being adopted by the agency as a basis for its final action.
Applying the cited exceptions to reports generated in the course of an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Court of Appeals held:
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, supra, at 659-660 (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 Board of Medical Licensure v. The 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.
Id. at 956. 7
Nine years passed before the courts revisited this issue in a published opinion. In
University of Kentucky v. The 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." 97-ORD-168, p. 5. In the intervening years, the Attorney General applied this principle in various contexts with this principle being 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, the Attorney General nevertheless concluded that the agency had interpreted "the rule too broadly" in 97-ORD-168. Id., p. 6. In so doing, this office observed:
The cases and opinions cited above establish that an internal affairs report can not 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 reasoning is equally applicable on the facts presented. See 01-ORD-83 and 01-ORD-47 (both of which reaffirm the validity of 97-ORD-168); compare 01-ORD-83. Because any existing memoranda, directives or e-mails which are responsive to Mr. Rogers' request have not been adopted as a basis for any final action of the Board inasmuch as none has been taken, those documents retain their preliminary status.
However, contrary to the Board's assertion, this office has rejected the notion 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 (or "formally adopted" by him), engaging 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.
04-ORD-162, pp. 11-12, citing 01-ORD-83, pp. 13-14 (emphasis added). Although members of the Committee "function independently" of each other, and the "sole purpose" of the members is to advise the Executive Director who never "formally adopt[s] the notes or recommendations of any member," the fact remains that the Director necessarily relies on the "advisory" opinions provided to him by one, if not both members, albeit implicitly; to this extent any such documents would no longer be preliminary and must be disclosed when the Board takes final action.
With regard to any "orders of appointment" or any records identifying the members of the Committee, this office is aware of no statutory basis for denial. Such records do not fall within the parameters of KRS 61.878(1)(i) and (j) insofar as no credible argument can be made that same are properly characterized as "preliminary"; likewise, such orders do not qualify as "drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action," recommendations or memoranda. See 05-ORD-221, pp. 6-10. Because the Board has not cited any of the other exceptions codified at KRS 61.878(1), 8 nor would any of the exceptions, which must be "strictly construed" under KRS 61.871 apply, the Board must honor this portion of Mr. Rogers' request. Regardless of whether the Board members who serve on the Committee are "private individuals" with other full-time employment or not, insofar as the Chairman of the Board appoints the members of the Committee and they are engaging in public business or performing a "public service," they must be accountable to the public which the Board, a public agency, is charged with protecting.
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.
Footnotes
Footnotes
1 Given our determination relative to KRS 61.878(1)(i) and (j), this office does not address the question of whether the Board also properly relied on KRS 61.878(1)(h) as the alternative basis for denial, other than to note this exception would not apply to any orders of appointment nor has the Board offered any specific proof of the harm that would result from disclosing the other documents, relying instead on general policy arguments regarding the potential effects on the members of the Board. See 08-ORD-013; 07-ORD-167; 05-ORD-003.
2 Although Mr. Rogers also requested "[a]ny Orders entered in the matter of Kentucky State Board of Licensure for Professional Engineers and Land Surveyors vs. Ralph Anderson, Administrative Action No. 02-KBELS-0552," the Board provided him with a copy of a pre-hearing conference order dated January 13, 2003, another one dated April 4, 2003, and the Final Agreed Order dated July 18, 2003; any related issues are therefore moot per 40 KAR 1:030, Section 6.
3 Mr. Rogers did not specify which exception.
4 Insofar as the Board apparently does not hold actual meetings, no minutes would exist. Although the Board cannot produce nonexistent records for inspection or copying, the failure to affirmatively indicate the basis for denial constitutes a procedural violation of the Act. See 07-ORD-023 (pp. 6-9), a copy of which is attached hereto and incorporated by reference, for the relevant analysis.
5 Contrary to the Board's implicit assumption, the Committee itself is a "public agency" within the meaning of KRS 61.805(2); consequently, any "meeting" of a "quorum of the members" of the committee "at which any public business is discussed or at which any action is taken by the agency, shall be" a public meeting unless one of the exceptions codified at KRS 61.810(1) applies. On this issue, 06-OMD-211, a copy of which is attached hereto and incorporated by reference, is controlling.
6 As previously indicated, Mr. Rogers acknowledged that "no final decision or recommendation" has been issued relative to his client, Mr. Curd; however, Mr. Rogers indicated that Mr. West's matter "is a closed matter" without elaborating. Because the record is unclear on this point, insofar as Mr. Buckley appears to implicitly dispute this characterization at least with regard to a proceeding, this office is compelled to clarify that our analysis is premised on the assumption that neither of the matters have proceeded to a final action (the parties use various terms interchangeably). If Mr. West's matter is "closed," any of the preliminary documents adopted as a basis of any final action, "formally" or otherwise, forfeit preliminary status.
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 With regard to application of KRS 61.878(1)(a), the only exception which the Board might conceivably be relying implicitly, this office refers the parties to 07-ORD-199 and 06-ORD-036; this argument is equally unpersuasive in short.