09-ORD-041 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether the Louisville and Jefferson County Metropolitan Sewer District violated the Kentucky Open Records Act in partially denying WHAS 11 reporter Mark Hebert's request for the "names and positions of all MSD employees who have resigned or been terminated since Jan. 1, 2009," the "resignation letters or termination letters for those employees," and "[a]ll documents and reports from the internal investigation of alleged theft of services and materials that focused, in part, on former MSD employee Christina Thomas[,]" including "all correspondence with Louisville Metro Police regarding the investigation." Because the MSD Board of Directors is the final decision maker on all grievances that progress to Step III of the internal "Grievance Procedure," as the relevant grievances have, MSD is not deemed to have taken any final action until the Board renders a decision; accordingly, the investigatory records in dispute retain their preliminary status and MSD thus properly denied the request on the bases of KRS 61.878(1)(i) and (j). Inasmuch as the correspondence exchanged between MSD and LMPD does not qualify as drafts, notes, or correspondence with private individuals, KRS 61.878(1)(i), upon which MSD relied exclusively, is facially inapplicable.

In a timely written response, Stephanie Harris, Employment/Labor Attorney, responded to Mr. Hebert's request on behalf of MSD. Relying upon KRS 61.878(1)(i) and (j), Ms. Harris denied the request as "to any disciplinary actions that are not final[,]" explaining that pursuant to "MSD's personnel policy, non-unit employees have a right to grieve any disciplinary action and therefore, any disciplinary action taken by MSD would not be final until the exhaustion of the employee's internal administrative remedies and any final action taken by MSD's Board of Directors." With regard to "the unit employee governed by a collective bargaining agreement," Ms. Harris observed that "the same process would apply." According to Ms. Harris, there has been one resignation since January 1, 2009, that of Kim Hill, a copy of which she attached. 1 In addressing the request for those records "from the internal investigation, " Ms. Harris advised that no such investigation "focused solely on Christina Thomas. However, to the extent that your request is for MSD's internal investigation on the theft of services and materials your request is also denied." Citing KRS 61.878(1)(h), Ms. Harris noted that said records "were turned over to Louisville Metro Police Department" and, therefore, "are part of an ongoing law enforcement investigation." 2 Ms. Harris further asserted that any such records "are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j)" since "any action taken by MSD is preliminary pending any further administrative proceedings and final action from MSD's Board of Directors." With regard to all correspondence exchanged with LMPD regarding the investigation, Ms. Harris denied Mr. Hebert's request on the basis of KRS 61.878(1)(i), observing that "any correspondence not intended for final action is exempt from disclosure under the [O]pen [R]ecords [A]ct."

Following an exchange with Ms. Harris via e-mail, in which Mr. Hebert asked MSD to reconsider its denial, arguing that employee appeal rights do not alter the finality of the MSD terminations, Mr. Hebert initiated this appeal. According to Mr. Hebert, "[a]t least five employees have been fired by MSD since Jan. 1, 2009, and are no longer employed by MSD." In his view, "[t]he agency head has taken final action regarding these employees. Under Kentucky law, all records involving the actions taken against those employees are now" open records. "If the public had to wait until all appeals were finalized," and the Board took "some sort of vote," Mr. Hebert argues, "it could be several months before we'd find out about any disciplinary actions involving employees on the public payroll." 3

Upon receiving notification of Mr. Hebert's appeal from this office, Paula M. Purifoy, Legal Counsel, supplemented the agency's response. Having summarized the content of Ms. Harris' written denial, Ms. Purifoy noted that Mr. Hebert subsequently "inquired as to the reasons Mr. [Jason] Watson's termination letter had not been available, given that he had been terminated and his attorney advised that he has no plans to appeal." Ms. Purifoy explained that Ms. Harris advised Mr. Hebert via e-mail "that there was no termination letter, as one had not been issued to him," and that "it was customary practice for MSD not to issue such letters to non-unit personnel due to their at-will employment status." More specifically, Ms. Harris indicated to Mr. Hebert that a "better response" to his request for Mr. Watson's termination letter "is that no such documents exist." Because a public agency cannot produce for inspection nonexistent records, nor does a public agency have to "prove a negative" in order to refute a claim that certain records exist, no violation occurred in this regard; further elaboration is unwarranted. See 07-ORD-190; 07-ORD-188.

Citing KRS 76.010 , Ms. Purifoy then acknowledged that MSD is unquestionably a "public agency" within the meaning of KRS 61.870(1); likewise, "MSD also possesses 'Disciplinary Action Forms' for some of the employees terminated after January 1, 2009, as well as investigative records pertaining to alleged theft of service[s] and materials." However, MSD maintains that all of the records in dispute are protected under KRS 61.878(1)(i) and (j) as they "relate in some way to alleged employee misconduct occurring over an extended period of time and for which disciplinary action has been taken."

On January 5 and 6, 2009, Ms. Purifoy explained, six employees were terminated by MSD. Executive Director Herbert J. Schardein, Jr. gave the "instruction to terminate." The names of the employees have not been disclosed, "except for Kim Hill and Jason Watson." As Ms. Purifoy explained:

Of the six employees, four were classified as "unit" employees, and two were classified as "non-unit. " As such they are governed by different employment standards, at least in part. Unit employees are governed by a collective bargaining agreement between MSD and the National Association of Government Employees. . . . Non-unit employees are employed "at-will" and are subject to discretionary Board approved personnel policies.

As it relates to discipline, the MSD/NAGE Agreement gives management the right to discipline, but requires that it be based on "just cause." Further, consistent with most other labor agreements, when an employee disagrees with the discipline, he/she has a right to appeal by filing a grievance. Non-unit employees also have this right pursuant to the non-unit employee handbook.

All of the employees terminated on January 5 and 6, 2009 (unit and non-unit) have appealed their termination and are awaiting final decisions, except for Jason Watson and Kim Hill. Jason Watson asked to file a grievance well after the deadline and was denied. Kim Hill has since resigned in lieu of termination, nullifying the termination. [Footnotes omitted.]

Regarding the Grievance Procedure outlined in the Agreement, Ms. Purifoy advised:

The grievance appeals process, which is established at Sections 139 through 142 of the Agreement, has three steps. At Step I, the grievance is discussed with the employee's immediate supervisor. At Step II, the grievance is heard by the Human Resources Director. If not resolved at either of these steps, the matter then proceeds to Step III, which is mediation.

Henri Mangeot, Executive Director of the Louisville Labor Management Committee, and Nyle Mullins, a mediator with the Kentucky Department of Labor, serve as Mediators. In their absence, the parties have the option of selecting a former Jefferson Circuit Court Judge to serve as Mediator who is bound by the same process. . . .

If a grievance is unresolved at Step III, the matter is then appealed directly to the MSD Board. Per Section 141 of the Agreement, "[i]f mediation does not resolve the grievance, then the mediator may render an advisory recommendation to MSD's Board for final decision. " (Emphasis added.) The Board has sole authority to reject or accept the recommendation, and hence is the final decision maker on all grievances that progress to Step III. Final agency action has not occurred until the Board renders its decision. [Footnotes omitted.]

Unlike the Chief of Police, Ms. Purifoy explains, "the Executive Director's authority to hire and fire is by delegation from the Board. As it relates to 'unit' employees, he is charged, essentially, with enforcing the parties Agreement. The Board's bylaws authorize the Executive Director to take all necessary and proper action thereto." He is vested with "direct authority to hire, promote, fire, etc." non-unit employees. In both instances, Ms. Purifoy noted, "his authority is limited by that reserved unto or retained by the Board through Board approved policies, procedures, and agreements." For this reason, Ms. Purifoy argued that "pending the Board's exercise of its authority to decide the subject termination appeals, all records pertaining to those terminations, including the notices of termination, and documents and reports from the internal investigations, are preliminary and exempt from inspection under KRS 61.878(1)(i) and (j)." In further support of this position, Ms. Purifoy argues "there is an imperative need for confidentiality in the records as the records are in all respects 'pre-decisional' documents. They are documents in which preliminary opinions are expressed that may or may not be adopted by the Board. Confidentiality is also necessary to protect the integrity of the grievance appeals process." Like other adjudicative proceedings, the subject appeal process "is intended to allow vindication of employees who have been falsely accused, and to ensure appropriate discipline for those found guilty of misconduct." To that end, "it is entirely necessary and prudent for MSD to advance the process in a way that protects revelations which, if released prematurely could cause the agency harm." Specifically, premature release of such information "could hinder MSD employees in talking candidly in discussions throughout the grievance process, which is contrary to the purpose for which it was established." 4

Our analysis is necessarily 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," 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, the Attorney General has also consistently recognized 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 MSD relies in denying access to records generated in the specified internal investigation, in various contexts. See 02-ORD-86; 01-ORD-104; 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 only 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 that 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.) 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 with this principle being the common thread among the resulting decisions. See OAGs 89-69, 88-2, 84-98; and 83-405. Said another way, each of the cited decisions was premised on the following notion:

Pre-decisional 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). 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, City of Louisville and its progeny, including the subsequent line of decisions issued by this office, are controlling on the facts presented. See, in particular, 97-ORD-168, pp. 2-7. Compare 01-ORD-83 and 01-ORD-47, both of which reaffirm the validity of 97-ORD-168. 5

Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office requested that MSD provide us with a copy of the records in dispute for in camera review, including all correspondence exchanged between LMPD and MSD regarding the subject investigation. MSD promptly honored this request. Although this office is not permitted to reveal the contents, 6 a review of those records, in conjunction with relevant sections of the Agreement, validates the agency's position that any responsive investigatory records are preliminary within the meaning of KRS 61.878(1)(i) and (j). Each of the employees terminated on January 5 and 6, 2009, with two exceptions not relevant here, appealed to the Board, which is undeniably the final decision maker in the context of this internal review process with grievances that proceed to Step III. Section 141 of the Agreement expressly provides that "[i]f mediation does not resolve the grievance, then the mediator may render an advisory recommendation to MSD's Board for final decision. " (Emphasis added.) MSD has acknowledged that the decision of the immediate supervisor (Step I), the Human Resources Director (Step II), or the mediator (Step III), is final as to employees who do not pursue their internal administrative remedies any further; however, that is not the situation here. Because the Board has not rendered a decision resolving any of the pending appeals, the records and information gathered at each of those stages in the process remain preliminary to the Board's decision, which constitutes the final action of the agency. In so holding, this office does not deviate from the reasoning found in the aforementioned line of decisions; rather, this appeal is factually distinguishable insofar as the Board is the final decision maker within MSD, as opposed to it being an outside entity such as the Personnel Board, etc. to which aggrieved employees appeal from the final action of the agency in those contexts. Accordingly, the records in dispute retain their preliminary status under KRS 61.878(1)(i) and (j) unless adopted by the Board.

In light of this determination, the remaining question is whether MSD properly withheld the only three documents which are responsive to Mr. Hebert's request for "all correspondence with [LMPD] regarding the investigation," one of which is merely a letter to the Attorney General, a copy of which MSD forwarded to LMPD. Because the remaining two are letters of transmittal exchanged between Ms. Purifoy and LMPD, none of the documents qualify for protection under KRS 61.878(1)(i), the sole basis for denial. A "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 97-ORD-183, p. 4. A "note," on the other hand, is defined as a "brief record, esp. one written down to aid the memory." Id. at 951; 97-ORD-183, p. 4. No credible argument can be made that any of these formal written instruments constitute "drafts" or "notes" according to the "common and approved uses" of those terms. 7 The records were "not created as an aid to memory or as the basis for a fuller statement," as, for example, are conventional notations taken at a meeting. 97-ORD-183, p. 4. Nor are they "a tentative version, sketch, or outline of a formal and final written product such as the drafts dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38." 97-ORD-183, p. 4. Likewise, such materials are not accurately described as "correspondence with private individuals, . . ." In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to private individuals," is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " Id., p. 2 (emphasis added). It stands to reason that KRS 61.878(1)(i) does not extend to correspondence exchanged between representatives of public agencies like MSD and LMPD. Because the correspondence withheld cannot properly be characterized as notes, drafts, or correspondence with private individuals, "the final action inquiry is moot rather than determinative." 04-ORD-125, pp. 9-10 (copy attached). With the exception of the improper withholding of these documents on the basis of KRS 61.878(1)(i), this office finds no error in MSD's disposition of Mr. Hebert's 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.

Mark HebertPaula M. PurifoyStephanie Harris

Footnotes

Footnotes

1 Any issues related to Mr. Hill's letter of resignation are moot per 40 KAR 1:030, Section 6.

2 Because MSD properly relied upon KRS 61.878(1)(i) and (j), consideration of this alternative basis for denial is unnecessary. See 08-ORD-013, a copy of which is attached, for the relevant analysis.