Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Frankfort violated the Open Records Act in denying Frankfort State Journal reporter Kevin Wheatley's requests for copies of all ethical complaints filed against City Manager Tony Massey, City Commissioner Kathy Carter, and City Clerk Ramona Newman, all documents related to these complaints, and all City of Frankfort electrical inspections for 708 and 710 Hoge Avenue within the six months prior to the requests. We find that the City failed to meet its burden of proof in denying Mr. Wheatley's requests for documents relating to complaints and electrical inspections, but may withhold the complaints themselves until the allegations contained therein are finally resolved or a decision is made to take no action.
The City premised its denial of Mr. Wheatley's request for ethical complaints on KRS 61.878(1)(i) and (j), reciting the language of these statutory exceptions. Additionally, the City relied on Frankfort Code of Ordinances 39.17(C) 1 and KRS 61.878(1)(h), arguing that "any records that may be available are confidential until such time as a preliminary inquiry determines otherwise . . . ." The City did not address Mr. Wheatley's request for documentation related to the ethical complaints or electrical inspection reports. Consequently, Mr. Wheatley initiated this appeal.
In supplemental correspondence directed to this office, the City explained:
The requested records relate to complaints filed alleging that certain City of Frankfort officials and/or employees have violated the provisions of the City's Code of Ethics. As a result of these complaints, an administrative adjudication of these complaints is currently underway. Accordingly, the requested records are exempt from release pursuant to KRS 61.870(1)(h) because the City is currently involved in an administrative adjudication concerning the allegations and the requested records were obtained as a result of the investigation of the alleged violations. The premature release of this information would harm the process of adjudicating these complaints because it would identify the complainants who could then be subject to retaliation, pressure or ostracism by individuals that did not agree with their actions in making the complaints. Such retaliation, pressure or ostracism would be prejudicial to the determination of the complaints and could result in the withdrawal of the complaints or discourage the filing of such complaints in the future.
The City also argued that the complaints and inspection reports "contain . . . preliminary drafts, notes, and correspondence with private individuals," "are preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, " "contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of privacy . . . [and] cause considerable harm to officials and/or City employees . . .," and are protected from disclosure by KRS 61.878(1)(i), (j), and (a), respectively. Finally, the City asserted that Section 39.17(C) of the City of Frankfort Code of Ordinances mandates confidentiality as to "all proceedings and records relating to a preliminary inquiry being conducted by the Board of Ethics . . . until a final determination is made by the Board."
To facilitate our review of the issues before us, on April 1, 2010, this office exercised its authority under KRS 61.880(2)(c) by requesting additional information from the City, including copies of the disputed records for purposes of in camera inspection. We asked that the City respond to our inquiry on or before April 9, 2010, and agreed to extend the deadline for the City's response to April 13, 2010. The City did not avail itself of the opportunity to substantiate its position or otherwise honor our KRS 61.880(2)(c) request. Given the paucity of information in the record on appeal, we find that the City failed to meet its burden of proof in denying Mr. Wheatley access to documentation relating to the complaints against Mr. Massey, Commissioner Carter, and Ms. Newman, and in denying him access to electrical inspections conducted at 708 and 710 Hoge Avenue that were generated in the six months prior to his request. Based on well-established legal authority, we affirm the City's reliance on KRS 61.878(1)(i) and (j) to support nondisclosure of the complaints themselves.
Kentucky's courts have accorded protection to documentation exchanged by public officials that consists of "preliminary discussions involving what course of action should be taken in regard to a controversy . . . [and therefore] preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Baker v. Jones, 199 S.W.3d 749, 552 (Ky. App. 2006). Such records, whether electronically stored or in hard copy, "enjoy the same protection . . . under a line of open records decisions [issued by the Attorney General dating] back to 2000." 07-ORD-161, p. 6. With few exceptions, it has been our practice to conduct an in camera inspection of documentation for which protection is claimed under KRS 61.878(1)(i) or (j) to determine if they constitute preliminary "drafts, notes, correspondence with private individuals other than correspondences which is intended to give notice of final action of a public agency" or "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " KRS 61.878(1)(i) and (j). This has also been our practice in assessing the propriety of agency invocation of KRS 61.878(1)(h). Here, the City has frustrated our efforts by failing to provide us with copies of the disputed records and respond to our inquiries by explaining, for example, how the Ethics Commission discharges its duties under City ordinance and what its role is in relation to the City Commission.
To facilitate our review of open records appeals, KRS 61.880(2)(c) and 40 KAR 1:030(3) vest this office with the authority to inspect the records in dispute. KRS 61.880(2)(c) thus provides in relevant part:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
Similarly, 40 KAR 1:030(3) provides:
KRS 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.
In 96-ORD-206, this office acknowledged that we were "severely handicapped in conducting our review" by virtue of an agency's refusal to honor our request for copies of the disputed records or respond to our written inquires. Quoting from an earlier decision, we observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception, [footnote omitted] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial does not satisfy the burden of proof imposed on the agency. We have received no supporting documentation to confirm the assertion, nor have we been afforded access to . . . [the disputed record] which we specifically requested.
95-ORD-61, p. 5, cited in 96-ORD-206. Relying on KRS 61.880(2)(c) and 40 KAR 1:030(3), we noted:
[T]he General Assembly has twice vested the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review. Without this authority, the Attorney General's ability to render a reasoned open records decision would be severely impaired. The Attorney General recognizes that he is bound to observe the confidentiality of the records, and does not share [the agency's] apparent view that disclosure to this office pursuant to KRS 61.880(2)(c) constitutes waiver as to any legitimate privilege [or exemption] asserted. Because he does not have authority to compel disclosure of the disputed records, his only recourse is to find against the public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future.
96-ORD-106, p. 5. In both 95-ORD-61 and 96-ORD-206, the Attorney General concluded that the agencies whose denials were challenged had not met their burden of proof in sustaining those denials under KRS 61.880(2)(c). 2 We are constrained to reach the same conclusion in the appeal now before us. Accord 05-ORD-185.
KRS 61.880(2)(c) provides that an agency resisting disclosure has the burden of proof to sustain its action. In light of the statement of legislative policy set forth 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, even though such examination may cause inconvenience or embarrassment to public officials or others," we are not prepared to accept, without independent confirmation, that all of the responsive documents are shielded from public inspection by KRS 61.878(1)(h), (i), (j), or any other exception or local ordinance. Bearing in mind that the City is assigned the burden of proof, that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners of Psychologists v. Courier-Journal, 826 S.W.2d 324, 327 (Ky. 1992), and that "free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others," KRS 61.871, we find that the City of Frankfort has not met its burden of proof in denying The State Journal's request for documentation relating to the complaints filed against Mr. Massey, Commissioner Carter, and Ms. Newman. Nor has it met its burden in the denial of Mr. Wheatley's request for documentation relating to electrical inspections conducted in the six months prior to submission of the request, including, of course, the inspection reports themselves. 3 Accordingly, the City must produce all responsive records for his review and provide him with copies upon request.
We can infer from the City's response that complaints are pending against the named individuals. KRS 61.878(1)(i) and (j) have long been interpreted to authorize nondisclosure of the complaint or other initiating document in which allegations are made until final action is taken on those charges or a decision to take no action is made. Palmer v. Driggers, 60 SW 3d 591 (Ky. App. 2001). Thus, in City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky. App. 1982), the Kentucky Court of Appeals recognized:
[S]ubsections [(i) and (j)] 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 to be 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.
This holding, however, is limited to Internal Affairs' involvement. We do not find that the complaints per se are 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.
While the complaint process is proceeding, the City may properly withhold the complaints/initiating documents concerning these individuals, but must disclose them, along with any record reflecting final action on them, or a decision to take no action, at their conclusion. Under the same line of reasoning, the City must disclose any prior complaints leveled against the individuals that have been resolved by final action, or a decision to take no action, along with any related documentation adopted as the basis for that resolution. As we noted in 10-ORD-070 and 10-ORD-076, "no statutory basis exists for denying" requests for records reflecting final action or the decision to take no action and the complaints from which the final action or decision to take no action "necessarily stem."
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.
Kevin WheatleyRamona Wells NewmanRobert C. Moore
Footnotes
Footnotes
1 With reference to thisordinance, we remind the City:
In enacting the Open Records Law, KRS 61.870 - 61.884, the General Assembly has preempted the field of inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878.
OAG 82-435, p. 2; see also 92-ORD-1136; 94-ORD-64; 00-ORD-117; 01-ORD-63; OAG 82-518, at p. 1 ("The Mayor does not have the authority to countermand the requirements of the Open Records Law" ).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 See also 04-ORD-031 (Kenton County Fiscal Court failed to meet statutory burden of proof in denying access to records relating to dismissal of director of animal control by failing to produce disputed records and respond to inquiries lawfully requested under KRS 61.880(2)(c)); 05-ORD-169 (Attorney General cannot affirm City of Mayfield's denial of request for investigative records on the basis of records' nonexistence where city elected not to respond to written inquiries lawfully submitted under authority of KRS 61.880(2)(c)).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 See 08-ORD-063, 96-ORD-32, OAG 80-596, OAG 77-585 (affirming public's right of access to restaurant inspections conducted by health department and recognizing that "the reports of inspections of enterprises regulated by law are public because of the need for public supervision of the actions of regulatory agencies and the public's right to be alerted to unsafe conditions" OAG 80-596, p. 3).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -