Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lexington-Fayette Urban County Government Division of Community Corrections violated the Open Records Act in partially denying Dori Zirbes' October 7, 2009, requests for records relating to an internal investigation of Corrections Officer Nathanael Sutton. Having provided Ms. Zirbes with a copy of the referral form that initiated the referenced investigation, and acknowledged error in having previously failed to do so, we find that LFUCG did not violate the Open Records Act in withholding the underlying investigative file on the basis of KRS 61.878(1)(i) and (j).
On October 7, Ms. Zirbes, who is also a corrections officer, requested "all documents and video of [the] internal investigation of Ofc. Sutton." Upon inquiry, she narrowed the focus of her request to the period from January 2008 to September 2009 and identified a named inmate as the individual whose complaint prompted the investigation. In a letter dated October 21, 2009, Assistant Director of Administration for Community Corrections, James J. Kammer, notified Ms. Zirbes that "[d]ocuments responsive to [her] request that are permitted as per the Open Records Act are available for inspection." Those records consisted of "1 page, 1 disc." The former was captioned "Internal Affairs Case Summary" and the latter contained 30 seconds of a videotaped interview with an inmate that "pertained to [Ms. Zirbes]." Convinced that additional documentation exists relating to the matter, Ms. Zirbes initiated this appeal on October 28, 2009.
In supplemental correspondence directed to this office, LFUCG acknowledged error in failing to provide Ms. Zirbes with a copy of "the internal affairs referral form . . . that initiated the internal affairs investigation" but continued to assert that the "investigative file of Internal Affairs was properly withheld pursuant to KRS 61.878(1)(i) and (j)" as interpreted in
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982). LFUCG agreed to provide Ms. Zirbes with a copy of the referral form. With reference to the second videotape, LFUCG observed:
The interview that was not provided is part of the investigative file. Community Corrections, in an attempt to provide all documents to which they believed Ms. Zirbes was entitled, felt that since she was specifically mentioned in the interview that that portion of the interview should be provided (KRS 61.878(3)). The fault, if any, was in reading this section of the Act as broadly as possible. As indicated, Ms. Zirbes was not entitled to a copy of the interview as it is part of the Internal Affairs investigative file related to Officer Sutton (not to Ms. Zirbes).
In closing, LFUCG acknowledged additional "technical deficiencies" consisting of the failure to cite the appropriate exception(s) authorizing partial nondisclosure and explain the application of the exception(s) to the records withheld, but maintained that "Community Corrections substantively complied with the Open Records Act. " 1
LFUCG primarily relies on City of Louisville v. Courier Journal and Louisville Times Co., above, for the proposition that investigative records forfeit their preliminary character under KRS 61.878(1)(i) and (j) only if they are adopted by the agency as part of its final action. We believe that
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001) is more apropros. In Palmer, the court incorporated the City of Louisville analysis that focused on final action as the event triggering forfeiture of the investigative records' preliminary character, but rejected the police officer's argument that his resignation precluded final agency action relative to the allegations made against him thereby shielding all records relating to the allegations from public inspection by operation of KRS 61.878(1)(i) and (j). The court adopted this office's reasoning in 00-ORD-107, holding that "the fact that the agency decided to take no further action on the complaint or that the investigation was preempted by the [employee's] resignation, in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint." On the facts before it in Palmer v. Driggers, above, the court concluded "that it is only logical to conclude that a resignation from a position by an employee before the [agency] has reached a decision . . . is a 'final action. '" Palmer at 597.
In the appeal before us, the facts are largely the same. Here, the record reflects that allegations of sexual misconduct were leveled against Officer Sutton in August 2009 and that an investigation commenced. The record further reflects that the "[c]ase was closed on September 1, 2009, based on Officer Sutton tendering his resignation effective August 21, 2009." 2 As in Palmer v. Driggers, above, the decision to take no action against Officer Sutton was predicated upon his resignation. At page 597 of that opinion the Court of Appeals observed:
[I]t is only logical to conclude that a resignation from a position by an employee before the [decision maker] has reached a final decision concerning possible termination is a 'final action. ' The effect of [the employee's] resignation was to end [the agency's] disciplinary proceedings against him. The subsequent decision . . . to end [the investigation] . . . constituted its 'final action. '
Ms. Zirbes has now obtained the referral form and case summary. 3 LFUCG is not obligated to provide her with the underlying investigative records because those records were not adopted as part of its final action. To reiterate, Officer Sutton's resignation was adopted by LFUCG as the basis for its final action, i.e., the decision to take no action, and the investigative records retain their preliminary characterization.
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.
Dori ZirbesJames J. KammerKeith Horn
Footnotes
Footnotes
1 We agree with LFUCG that it is not obligated to provide Ms. Zirbes with multiple copies of the same public records. No provisions of the Open Records Act impose this requirement. See 95-ORD-105; 98-ORD-171; 00-ORD-226; 06-ORD-116; 08-ORD-194.
2 We are obliged to note that the Internal Affairs Case Summary Case # 1A(09)0019 that was provided to this office under authority of KRS 61.880(2)(c) differs from the Case Summary provided to Ms. Zirbes and included in the materials supporting her appeal. The version LFUCG furnished to this office contains no entry under the "Director's action" section of the form. The version LFUCG released to Ms. Zirbes contains a statement concerning Officer Sutton's resignation as well as a statement concerning an August 26 referral to the Division of Police "for review concerning possible criminal charges." No explanation is offered for this discrepancy.
3 In City of Louisville, above at 695, the court declared that "whatever final actions are taken necessarily stem from [the complaints], they must be deemed incorporated as a part of those final determinations" and made publicly accessible along with the records reflecting final action.