Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Police Department violated the Open Records Act in its disposition of Janice M. Theriot's October 30, 2009, request for documents related to a completed investigation by the Department's Professional Standards Unit. For the reasons that follow, we conclude that the Department's response was procedurally deficient and was substantively deficient in part.
Ms. Theriot's October 30 letter requested copies of the following:
All documents related to Professional Standards Case 09-117 including, but not limited to, the sworn statement given by Lieutenant Yvonne Hunt. According to a letter I received dated October 12, 2009, the final action was taken in the case on or before that date.
All documents, including emails, to and from Lieutenant Yvonne Hunt related to the events describe [ sic ] on August 20, 2009, and the investigation of Professional Standards Case 09-117 which would include any emails or documents pertaining to bicycles or laws related to bicycles.
A copy of Standard Operating Procedure 5.1.32 which was the SOP described as potentially violated in Professional Standards Case 09-117 and any documents related the [ sic ] determination that that SOP had anything to do with the events described in Professional Standards Case 09-117.
According to Ms. Theriot's appeal, she received a phone call from paralegal Sharon King on or about November 6, in the course of which Ms. Theriot agreed to a four-day extension "because the records were boxed up."
On November 17, 2009, Ms. King e-mailed her the "complainant affidavit"; Chief Robert C. White's final action in the form of letters dated October 12, 2009, to Ms. Theriot 1 and Lieutenant Hunt; a transcript of Ms. Theriot's own interview with Professional Standards; and a copy of her own open records request. Ms. Theriot pointed out to her that no statements or e-mails from Lieutenant Hunt were included. Two days later, Ms. King e-mailed Ms. Theriot a copy of SOP 5.1.32, as originally requested, and stated without explanation that "it will require an additional period of time up to and including 7 days to respond to your request pertaining to emails. " Ms. Theriot responded: "What about Lt. Hunt's statement?" Ms. King replied: "Pursuant to your open records request, you were provided the Affidavit, Chief's Findings, and your statement. All documents that are subject to open records were released." In response, Ms. Theriot reiterated everything she had requested and had not yet received. Finally, on November 24, 2009, Ms. King sent a letter which reiterated her earlier statement that "[a]ll documents that are subject to open records were released" and included a one-page attachment showing e-mails between Lt. Hunt and Lieutenant Tandeta Hettich on September 9, 2009, concerning the fact that a complaint had been filed against Lt. Hunt.
Procedurally, we find that the Department clearly violated the Open Records Act with regard to the timeliness of the materials that were produced. The Department had the duty to respond in writing to Ms. Theriot's request within three business days under KRS 61.880(1), which it did not do. Even after obtaining an agreed extension of time from Ms. Theriot, the Department (even if it met that deadline, which is not clear from the record) provided only part of what was requested and had to be reminded on multiple occasions to provide other items. Its November 19 statement regarding the need for additional time did not meet the requirement of KRS 61.872(5) that "a detailed explanation of the cause" for delay be given. Furthermore, although Ms. King's November 24 letter cited a court opinion, the Department failed to "include a statement of the specific exception authorizing the withholding of" records, and how it applied to those particular records, as required by KRS 61.880(1). In all of these respects the Department procedurally violated the Act.
While a public agency "is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable," this office has never "required an itemized index correlating each document withheld with a specific exception." 97-ORD-41, p. 6. In the course of our review, under authority of KRS 61.880(2)(c), this office obtained a copy of the complete file. Of particular note, it includes the written report of the investigation prepared by Lt. Tandeta Hettich, which contains a recommended disposition of "Not Sustained"; a case tracking record form; internal memoranda from Major Joe Richardson and Major David P. Ray concurring in Lt. Hettich's recommended findings; some notes from an individual identified as "Smothers"; a transcript of the statement given to Lt. Hettich by Lt. Hunt; a copy of a flier describing laws to be followed by cyclists; and a printout from the City of Louisville's website describing state and local bicycle laws.
On the substantive merits of what was ultimately withheld by the Department, we turn to Ms. Theriot's appeal, which was initiated with this office on December 1, 2009. The salient portions of her letter are as follows:
[T]he Police Chief stated in a letter to me that Professional Standards Case 09-117 was "thoroughly investigated by the Louisville Metro Police Department Professional Standards Unit. The investigation was very thorough. The following is my final action in regard to the investigation." ? Because the action of LMPD is final and because the Chief incorporated the investigation of the Professional Standards Unit in his final action, it must be disclosed pursuant to an Open Records Request. ?
[I] received a letter [which] does not list any withheld documents or provide any reason for withholding them but simply says all documents subject to open records were released. ?
?
[I]nternal investigation files are only protected from release if they are preliminary. The documents I have requested include a statement by Lt. Hunt that can in no way be described as preliminary. First, it's a statement, not an opinion of anyone. It will not and cannot change because the investigation is final. Second, it is part of an investigation incorporated by the Chief in his final action. Furthermore, I assume that if the investigation was as thorough as Chief White claims, the file should contain some research on the laws that Lt. Hunt claimed were at issue during the incident under investigation. Those laws cannot be classified as preliminary. If the file is devoid of statements or research, then I must know that also, as it points to an arbitrary final action.
(Emphasis omitted.)
The Department responded to the appeal on December 18, 2009, with a letter from Terri A. Geraghty, Assistant Jefferson County Attorney. Ms. Geraghty states in part:
LMPD has provided Ms. Theriot with a copy of her complaint, a copy of Ms. Theriot's interview with the Professional Standards Unit, a copy of Chief of Police White's correspondence to the officer setting forth his final decision, a copy of Chief of Police White's correspondence to Ms. Theriot, a copy of LMPD Standard Operating Procedure Section 5.1.32, and copies of two e-mail records dated September 8 and September 9, 2009. The remaining notes, internal memorandum, the Professional Standards Unit's Report, the interview conducted by the Professional Standard[s] Unit with the officer, and other internal, preliminary investigative documents were not released to Ms. Theriot. These documents were not released because they were not adopted by the Chief of Police as his basis for his final action. ?
?
The Professional Standards Unit, much like the Internal Affairs Unit, has no authority to render a final decision and merely provides their findings, evaluation, opinions and recommendations to the Chief of Police. The Chief is the only one that has the authority to make the final decision for the agency. Police Chief White has given no indication that he adopted the Professional Standards Unit's investigative records as part of his final action and affirmatively states that he did not adopt their recommendations as the basis for his action.
We believe that for the most part the Department's disposition of Ms. Theriot's request substantively conformed to the requirements of the Open Records Act.
In 01-ORD-47, the Attorney General addressed the issue of access to an internal investigation file generated by the Owensboro Police Department, and the application of KRS 61.878(1)(i) and (j) to the file. It is instructive to quote from 01-ORD-47 at considerable length:
The courts and this office have devoted considerable time and energy to interpreting KRS 61.878(1)(i) and (j). These provisions authorize the nondisclosure of:
Applying these exceptions to an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Kentucky Court of Appeals observed:
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658, 659, 660 (Ky. App. 1982) (emphasis added).
This position was reaffirmed one year later in a case involving public access to complaints against physicians licensed by the state licensure board. In Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983), the Court of Appeals determined that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once final action is taken by the board. With respect to letters, correspondence, and reports compiled by the board, the Court commented:
With specific reference to internal affairs investigative records, the Attorney General has held that the Kentucky State Police improperly withheld such records when the evidence presented confirmed that the final decision maker, KSP's Commissioner, "adopted the findings and recommendations of the investigative officer by affixing his signature to the report." 97-ORD-168, p. 7. Those investigative materials that were once preliminary in nature lost their exempt status "because the Commissioner, signal[ed] his concurrence with the investigator's findings and recommendations on the report . . . [which was] physically incorporated into his decision relative to the inquiry . . . ." Id. The Commissioner, we concluded, "adopted the report, in its entirety, when he signed off on the document and affirmed its conclusions." Id. In sum, this office held:
01-ORD-47, pp. 5-9 (citations updated), citing 97-ORD-168, p. 7. 2
Our resolution of 01-ORD-47 in favor of the Owensboro Police Department turned on the fact that no final disciplinary action had been taken in the matter under investigation. Thus, we concluded:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
01-ORD-47, p. 9.
The Department's final action on Ms. Theriot's complaint is contained in Chief White's October 12, 2009, letter to Lt. Hunt, the body of which reads:
On August 20, 2009, an investigation was initiated pursuant to KRS 15.520 concerning any violation of the Louisville Metro Police Department's rules, standards, policies and procedures in regard to your contact with Janice Theriot on August 19, 2009. The investigation was thorough. The following is the result and my final action in regard to my investigation.
Violation of:
Standard Operating Procedure 5.1.32 Appropriate Action -Not Sustained
Due to the above finding, there will be no disciplinary action taken and the complaint will be dismissed.
(Emphasis in original.)
The Department included with its response to this appeal a sworn affidavit from Chief White, in which he denies adopting or incorporating any recommendations or documents in the investigative file and explains as follows:
In all investigations of misconduct, I review the Professional Standards Unit investigation, consult with the Major over Professional Standards Unit, the Major over the accused officer, the Lieutenant Colonel over the accused officer, Legal Advisor for the Department, and any other individual I deem necessary. ? "Not Sustained" means "There was not sufficient information to either prove or disprove the allegation". ? My investigation determined there were no witnesses to the contact between Ms. Theriot and Lieutenant Yvonne Hunt, therefore, I found the complaint was "Not Sustained".
Chief White thus avers that his "Not Sustained" disposition was reached on the basis of his discussions with various individuals about the state of the case, rather than being a simple adoption of the substantive findings or recommendations of an investigator.
The Court of Appeals in City of Louisville, supra, held that an initial complaint is adopted as the basis of final action insofar as the final action "necessarily stem [s] from" that document. 637 S.W.2d at 660. In this instance, the police chief's decision is not the result of weighing the merits of conflicting testimony or other evidence, but rather reflects the fact that there is no independent evidence to support either party's version of events. 3 It is credible that the chief could have reached this essentially procedural conclusion of "Not Sustained" through his discussions with the persons indicated in his affidavit, thus not necessarily relying on the substance of the investigative report.
We have previously stated that when an agency's "final decision mirrors [preliminary] findings and recommendations, albeit in abbreviated form, it must logically be inferred that they were adopted as the basis of that decision, particularly where there is no persuasive proof in the record to overcome this inference." 01-ORD-123, p. 6. In this case, there is such proof in the record. Therefore, even though the final decision is in accord with the recommendation of the Professional Standards Unit, and reaches that conclusion for the same reason, we believe Chief White's affidavit sufficiently shows that his final action finding the complaint "Not Sustained" did not "necessarily stem" from the investigative record or from the recommendation of Lt. Tandeta Hettich contained in the investigative report. For this reason, we find that Chief White did not "adopt" the investigative report or other documents as the basis for his decision to find the complaint "Not Sustained," and therefore the investigative file retained its preliminary characterization under KRS 61.878(1)(i) and (j). 4
Accordingly, the Department properly denied Ms. Theriot's request for the remainder of the investigative file, except as to any records in the file--such as the materials on bicycle laws--that were generated in the normal course of city business and thus collaterally to, and not as an integral part of, the Professional Standards investigation. Such records do not enjoy a protected status under KRS 61.878(1)(i) or (j) as records compiled as an integral part of the investigative process simply because they are appended to a Professional Standards report. Records of this nature, created collaterally to the investigation, must be disclosed unless some other statutory basis exists for withholding them. 01-ORD-83, p. 12. The Department must release records in this category to Ms. Theriot unless an independent legal basis exists for denying access.
Having determined that Chief White did not adopt Lt. Hettich's investigative report as the basis of his final action on the complaint, we thus affirm the Department's partial denial of Ms. Theriot's request for the investigative file, including records in the file that were created as an integral part of the investigative process, as opposed to records in the file that were created collaterally to the investigation and later placed in the file. As to the latter category of records, the Department substantively violated the Act in part.
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 proceedings.
Janice M. Theriot, Esq.Sharon L. KingTerri A. Geraghty, Esq.
Footnotes
Footnotes
1 Ms. Theriot was the complainant in the Professional Standards case.
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2 In University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Supreme Court of Kentucky agreed with the reasoning of the Court of Appeals in City of Louisville and its progeny, holding 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."
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3 This disposition of "Not Sustained" is distinguished from the more substantive conclusion of "Unfounded" (used when allegations are disproven by the evidence).
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4 Ms. Theriot argues that a witness statement is not a preliminary record. This office, however, has consistently held that witness statements constituting part of an investigation are preliminary documents when they are not adopted as part of the final agency action. See, e.g., 06-ORD-121; 05-ORD-007; 99-ORD-105. Furthermore, the Court in University of Kentucky, supra note 2, evidently included the transcripts of witness interviews at issue in that case within the category of "investigative materials that were once preliminary in nature." 830 S.W.2d at 373.
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