Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Owensboro Police Department violated the Kentucky Open Records Act in partially denying Messenger-Inquirer reporter James Mayse's December 8, 2011, request for various public records pertaining to former OPD Public Information Officer Marian Cosgrove. The records in dispute can be described as the investigative files relating to Professional Standards Unit investigations 11.11 and 11.17 and the "complaints" which prompted each investigation. In accordance with governing case law, the Attorney General finds that OPD properly withheld the investigative files on the bases of KRS 61.878(1)(i) and (j), as the records were not adopted, in whole or in part, as the basis for any final action by OPD and therefore retained their preliminary status. However, this office finds that OPD violated the Act in withholding the complaint forms which prompted the investigations because the "initiating or charging document, or any other document that spawns an investigation must be made available for public inspection at the conclusion of the investigation and upon the imposition of final agency action, including the decision to take no action." 05-ORD-005, p. 9 (citations omitted).
In a timely written response, Patrick D. Pace, legal counsel for the agency in this matter, advised Mr. Mayse that "there is no complaint responsive to your request. Any documents related to any internal investigation or review by the OPD [PSU] involving Marian Cosgrove between September 1, 2011, and November 13, 2011, are exempt under the provisions of KRS 61.878(1)(i) and (j) and
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982)." Relying upon KRS 61.878(1)(h) and
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001) (holding that "a resignation from a position by an employee before the Commission has reached a decision concerning possible termination is a 'final action' and the "subsequent decision of the Commission to end the hearings against Palmer constituted its 'final action' "), Mr. Mayse initiated this appeal.
Upon receiving notification of Mr. Mayse's appeal, Mr. Pace supplemented his original response on behalf of OPD, initially reiterating that "[n]o complaint was filed against Marian Cosgrove," and further arguing that neither KRS 61.878(1)(h) nor Palmer supports Mr. Mayse's position. OPD further explained:
An administrative adjudication against a member of the [OPD] is governed by KRS 95.450, [footnote omitted] which requires the filing of charges against the officer and an adjudication of the charges by the legislative body of the city. The City of Owensboro is a city of the second class which operates under the city manager form of government. KRS 83A.150. The body is known as the Board of Commissioners. KRS 83A.150(2). No member of the Police Department may be disciplined, except for conduct proscribed by the statute, and only after the charges are preferred and heard as provided by the statute. KRS 95.450. Final action occurs when the Board hears and adjudicates the charges against the officer. In Palmer , the Court of Appeals held that a resignation can serve as a "final action" if it is submitted in lieu of an adjudication of the charges filed against the officer by the Board of Commissioners. Even then, the Court required only that the charges, and not the investigatory file itself, be subject to inspection as a nonexempt public record.
Relying upon City of Louisville , above, OPD further noted there is "an important distinction" between records pertaining to investigation of an employee "where no charges were filed and no final action was taken by the 'public agency' and the situation where charges against an employee have been filed for adjudication and have become final either through the decision of the adjudicatory body or by the resignation of the officer in lieu of an adjudication." Although the police chief alone determined whether disciplinary action should be imposed on the officer in City of Louisville , under KRS 95.450, which governs in this case, the OPD Chief "had no authority to take final disciplinary action against any officer."
Summarizing the facts of Palmer , OPD correctly observed that " only the charges ("complaint") themselves and not the Department's investigatory file were deemed to be public records as a result of the resignation. " Palmer at 600 (emphasis added). In the instant matter, OPD continued, no charges were filed under KRS 95.450 by the Chief or anyone else and consequently there was no final action taken either through an adjudication of charges or by the resignation of Ms. Cosgrove in lieu of a hearing on the charges." Because no charges were filed, Mr. Pace concluded, "there was nothing requiring 'final action' by the Board of Commissioners and any investigatory files remain exempt from inspection under the provisions of KRS 61.878(1)(i) and (j)." According to OPD, Palmer involves "the same police department and the same disciplinary statute," but is factually distinguishable. Because there was no final action which incorporated/adopted "any portion of any investigatory file on Ms. Cosgrove," the files retained their preliminary status.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office made a series of requests for additional information and records to assist us in reaching a correct resolution of this matter, each of which Mr. Pace promptly and fully complied with on behalf of OPD. In response to said requests, Mr. Pace reiterated that "there were no disciplinary charges filed against Officer Cosgrove under KRS 95.450, so there are no documents revealing the basis for charges filed against her under the statute[,]" and emphasized OPD's position regarding application of KRS 61.878(1)(i) and (j) to said records. 1 Before the Chief decided whether to take any action regarding the PSU investigations, Mr. Pace again observed, "she tendered her voluntary resignation. " Inasmuch as "no action was taken by the Chief on the investigations, no charges were brought against Cosgrove, and no disciplinary action was undertaken against her by anyone, no investigatory material was incorporated in any 'final action. '" Mr. Pace correctly noted that Palmer v. Driggers "actually followed the Courier-Journal decision." Although the "charges" or "complaint" against Palmer were deemed open , OPD acknowledged, "the investigatory file itself remained exempt under KRS 61.878(1)(i) and (j)."
In light of the repeated assertions by OPD that "[n]o complaint was filed against Marian Cosgrove," nor does it possess "any complaint concerning Officer Cosgrove that was reviewed by the department," as requested, this office asked Mr. Pace to "please explain why [two documents entitled 'Professional Standards Complaint Form' enclosed with our inquiry letter] cannot be properly characterized as "complaints" or how they can be properly distinguished therefrom." This office also requested, under authority of KRS 61.880(2)(c), that OPD provide us with a copy of any existing documents responsive to Mr. Mayse's request for "emails, letters, memos or other documentation discussing Marian Cosgrove" not contained in the files. 2 Mr. Pace promptly complied with each request. In reply, he advised that a Professional Standards Complaint Form is "not a 'complaint[]' filed against an officer. In each instance, the document is the initiating document of an internal investigation that was initiated by the police department. " Each document "bears the notation 'Internal,'" he continued, "and is signed not by a complainant, but by the officer conducting the PSU internal investigation. There was no written complaint (document) about Officer Cosgrove received by the department." These records "were a part of and remain a part of the PSU internal investigatory file," he concluded, as they were never adopted as the basis for any final action.
Our analysis must be guided by the legislative statement of policy codified at KRS 61.871, as well as the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). As the Kentucky Supreme Court has emphasized, the "unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'"
Beckham v. Board of Education of Jefferson County, 873 S.W.2d, 575, 577 (Ky. 1994), citing KRS 61.871.
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j) in various contexts. See City of Louisville , above;
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983);
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992); Palmer v. Driggers , above. See 99-ORD-220; 07-ORD-156; 11-ORD-108. Guided by this 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. See OAGs 83-405, 84-98, 88-2, and 89-69. City of Louisville , above, the seminal case on this issue, and its progeny, including Palmer v. Driggers and the subsequent line of opinions/ decisions by this office, are controlling on the first question presented -- namely, whether OPD properly withheld the requested investigative files. See 97-ORD-168, pp. 2-7. Compare 01-ORD-47. 3
In 02-ORD-018, this office held that witness statements and investigative summaries were protected by KRS 61.878(1)(i) and (j). The Attorney General explained:
The Court [in City of Louisville ] intended its reasoning to apply to investigative files . . ., including witness transcripts and investigative summaries, unless adopted . . . as the basis of final action. These records reflect the opinions of witnesses relative to what they observed, and the opinion of the investigator who prepared the summary relative to what observations and comments to include and exclude. We are not prepared to read into [the case law] , a distinction between records within the investigative file that the Court of Appeals did not make in that decision[s].
Id. This office then observed that "the proper standard for determining when a record within an investigative file forfeits its preliminary character is found at page 659 of City of Louisville ," above, wherein the Court held:
Accord, Kentucky State Board of Medical Licensure v. Courier-Journal, 663 S.W.2d 953, 956, 957 (Ky. App. 1983) holding that "once such notes or recommendations are adopted by the [agency] as part of its actions, the preliminary characterization is lost," and "those documents defined in Subsections [(i) and (j)] which became a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records" ; and University of Kentucky v. Courier-Journal, 830 S.W.2d 373, 378 (Ky. 1992) ratifying 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 .
Id. at 5-6 (original emphasis); see 10-ORD-046 (adopting 02-ORD-018).
As in 02-ORD-018, Palmer v. Driggers does not alter the relevant analysis regarding accessibility of investigative files generally and, if anything, further validates the agency's denial. See 10-ORD-053 (affirming denial of access to underlying investigative records because those records were not adopted as part of the agency's final action, i.e. , the decision to take no action, and the investigative records therefore retained their preliminary status)(copy enclosed) . In Palmer , the Messenger-Inquirer requested access to "various documents pertaining to possible investigations and disciplinary actions related to" police officer misconduct. Id. at 594. Palmer had resigned before discipline could be imposed, arguing that his resignation precluded final action by the City of Owensboro, and therefore records pertaining to allegations of misconduct leveled against him were permanently excluded from public inspection by KRS 61.878(1)(i) and (j). The Court rejected this argument, concluding that "a resignation from a position by an employee before the [agency] has reached a decision concerning possible termination is a 'final action. '" Palmer , above, at 597. Although the Court held that the allegations of misconduct contained in the complaint presented "a matter of unique public interest," Palmer , above, at 599, and could not be withheld, it did not specifically address the agency's investigative files; accordingly, the City of Louisville analysis remains controlling.
Our holding in favor of OPD in 01-ORD-47 turned on the fact that no final disciplinary action had been taken regarding the subject investigation. Rather, "the work of Chief of Police, in submitting his findings and recommendations to the City Manager, the work of the City Manager in determining whether charges should be preferred, and the work of the Owensboro Board of Commissioners, in determining final disciplinary action per KRS 95.450(6)," was yet to be done and the records therefore retained their preliminary status under City of Louisville , above. 01-ORD-47, p. 9. Although final action was taken here (as defined in Palmer ), i.e. , the decision to take no action following Officer Cosgrove's resignation, and 01-ORD-47 is distinguishable to that extent, the determining factor on the facts presented is whether the investigative files were adopted, in whole or in part, as the basis for the agency's final action. Because OPD did not adopt the investigative records being sought as the basis for any final action, the records did not forfeit their preliminary characterization. Id.; 10-ORD-034, p. 9. OPD properly denied access on the bases of KRS 61.878(1)(i) and (j).
However, the agency's decision to withhold the requested "complaints" or initiating documents is contrary to existing legal authority. See 96-ORD-86 (holding that complaints of employee misconduct could not be withheld under KRS 61.878(1)(a) "[n]or is disclosure of such records prohibited by KRS 61.878(1)(i) and (j)" as construed in City of Louisville , above). Both the courts and this office have addressed the question of access to records documenting allegations of misconduct, as well as both voluntary and involuntary separation from public employment, consistently recognizing that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know." OAG 88-25, p. 3; see also City of Louisville , above; Kentucky State Board of Medical Licensure , above; Kentucky Board of Examiners , above; Palmer v. Driggers , above; OAG 81-127; 95-ORD-47; 05-ORD-005; 08-ORD-179. While being mindful that "the question of whether an invasion of privacy [under KRS 61.878(1)(a)] is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context," Kentucky Board of Examiners at 328, this office has generally held that the privacy interest of public employees who have been disciplined for charges of misconduct or exonerated of such charges in the course of their employment is outweighed by the public interest in monitoring the actions of the public agency. 02-ORD-231, p. 2. Thus, it is well-established that "a complaint, initiating or charging document, or any other document that spawns an investigation must be made available for public inspection at the conclusion of the investigation and upon the imposition of final agency action, including the decision to take no action." 05-ORD-005, p. 9 (citations omitted). See City of Louisville , above, at 659 ("complaints are not per se exempt from public inspection once final action is taken" but "[i]nasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as part of those final determinations").
Although "no charges were filed under KRS 95.450" and each of the complaint forms was "the initiating document of an internal investigation that was initiated by the police department . . . bear[ing] the notation 'Internal,' . . . and is signed not by a complainant," this office finds the attempt by OPD to distinguish these complaints from those uniformly deemed subject to disclosure unpersuasive. 4 See 97-ORD-168 (internal affairs reports, or complaints in this case, "do not enjoy a uniquely protected status simply because they are characterized" as such). The Kentucky Court of Appeals rejected a similar "attempt to categorize complaints as formal public complaints and private individual complaints," concluding that it "had no bearing on whether such complaints must be released." Kentucky State Board of Medical Licensure , above, at 956. Because the final actions taken stemmed from the complaints, the Court reasoned, "they must be incorporated as part of the final determination and are therefore not exempt under KRS 61.878(1)[(i) and (j)]." Id. Based upon the foregoing, this office "do[es] not believe that the particular complaints at issue in this appeal, and consequent . . . decisions to take action or not to take action should be excepted from the 'general rule of inspection' and its underlying policy of openness for the public good . . . ." 96-ORD-86, p. 3 (citation omitted).
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.
Distributed to:
James MayseGlenn SkeensPatrick D. Pace
Footnotes
Footnotes
1 Mr. Pace also noted that "Officer Cosgrove was placed on administrative leave by the Chief, with pay, during the investigations identified a PSU 11.11 and PSU 11.17. A copy of the letter dated October 31, 2011, from the Chief to Officer Cosgrove evidencing this action was provided to Mr. Mayse and is also enclosed for your review." This office subsequently asked Chief Glenn W. Skeens to "explain what you relied upon as the basis for the decision to place Officer Cosgrove on paid administrative leave." Mr. Pace advised that Chief Skeens' letter explains the reason for that action though it merely advised Officer Cosgrove that she was being placed on "paid administrative leave pending the final disposition" of the referenced PSU investigations. Any other reasons, Mr. Pace asserted on appeal, "relate to documents which are exempt from production as constituting a clearly unwarranted invasion of personal privacy under KRS 61.878(1)(a)[.]" It suffices to say that our in camera review confirmed Mr. Pace's characterization of those documents. Further discussion is unnecessary as Mr. Mayse received a copy of the letter and the underlying records were properly withheld on the basis of KRS 61.878(1)(a) and/or KRS 61.878(1)(i) and (j). See 06-ORD-209 ("Few records are accorded greater protection than patient medical records [and information . . ."); 09-ORD-166.
2 Our in camera review of the documents responsive to Mr. Mayse's request for "emails, letters, memos or other documentation discussing Marian Cosgrove" during the period from August 1, 2011, to November 18, 2011, in short, validated the agency's position that all 32 of the documents (some of which are duplicative) were properly withheld on the basis of KRS 61.878(1)(a), and/or 61.878(1)(i) and (j), and/or the attorney-client privilege codified at KRS 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Counsel for OPD provided us with a log briefly identifying the kind of record withheld, the subject matter, and the exception(s) upon which it relied in addition to copies of the actual records. Although this office cannot reveal the contents thereof with any degree of detail, the records can generally be described as e-mails (including attachments of drafts in some cases) containing either protected medical information (exempt per KRS 61.878(1)(a), see 05-ORD-239 and 11-ORD-139), preliminary drafts, recommendations, or memoranda (exempt per KRS 61.878(1)(i) or (j), see 05-ORD-221), or communications which clearly satisfy all three elements of the attorney-client privilege (KRS 61.878(1)(l), incorporating KRE 503, see 10-ORD-125).
3 This office also refers the parties and the reader to pp. 5-9 of 01-ORD-47 (In re: Evansville Courier & Press / City of Owensboro), a copy of which is attached hereto and incorporated by reference, for a detailed summary of the governing legal authority.
4 See 05-ORD-003 (recognizing that "uniform offense reports" are "the functional equivalent of the incident reports at issue in the cited opinions[/decisions]"); 09-ORD-205 (holding that "UOR-1 ( Initial Page)," is the 'functional equivalent' of the 'initial offense report'").