Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison Assistant, Attorney General
Open Records Decision
Lawrence Trageser initiated this appeal challenging the partial denial by the Hopkinsville Police Department (HPD) of his January 8, 2015 request (dated December 7, 2015, when it was originally submitted via e-mail) for "any and [sic] records reflecting the personnel file of former Hopkinsville Police Department employee Shannan [White Tinsley]," 1 including résumés, disciplinary actions, resignation letters, and investigations of her conduct while acting in the capacity of a HPD employee. Hopkinsville City Clerk Christine F. Upton advised Mr. Trageser in a timely written response that she was attaching certain responsive documents with personal information redacted under authority of KRS 61.878(1)(a). 2 Ms. Upton further indicated that "pursuant to KRS 61.878(1)(i), preliminary notes have not been provided." In response to a subsequent inquiry regarding the agency's reliance on KRS 61.878(1)(i), Ms. Upton advised Mr. Trageser that "preliminary documents withheld related to the Internal Investigation. We provided you the initial complaint and the record of final action pursuant to" City of Louisville v. The Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982).
On appeal Mr. Trageser noted that he received a copy of the Hopkinsville Department Citizen Complaint Form which "clearly lists all actions that are to be taken and the documents that will inevitably be created during this process." For example, the Patrol Major will review the written report of the investigating officer and report it to the Chief of Police. The Chief shall then make a decision, "which is final and a matter of record." Mr. Trageser believes that said report "does serve as a major factor in determining if disciplinary action should or should not be taken and provides the details necessary to ensure accountability[.]" Upon receiving notification of Mr. Trageser's appeal from this office, legal counsel responded on behalf of HPD, correctly noting that Mr. Trageser's appeal focused on the accessibility of the "internal investigation" regarding the citizen complaint. He reiterated the agency's original position, quoting City of Louisville (holding that investigative files of internal affairs are exempt from public inspection as preliminary under KRS 61.878(1)(i) and (j), as HPD argues, but also holding that "if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent"). "As the internal investigation amounts to preliminary notes pursuant to KRS 61.878[(1)(i) and (j)]," 3 counsel reasserted, "said documents are exempt. "
Given the limited information presented regarding the actual content of the records described only as "preliminary notes," and whether those records, in whole or in part, formed the basis of the agency's final action, explicitly or implicitly, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3 this office requested that HPD provide us with unredacted hard copies of those records for purposes of in camera review. Reiterating its original response(s), HPD provided the records and maintained its position that all of the records were properly withheld as preliminary without further explanation. The argument by HPD "fails to recognize that our analysis does not end with a determination that documents are preliminary in character, but instead also requires a determination of whether such documents, or portions thereof, were ultimately adopted as the basis or a part of the agency's final action. " 11-ORD-052, p. 3. In other words, "the fact that none of the [records] were expressly incorporated into the final report does not end the inquiry. " 14-ORD-181, p. 8. "'When the decision mirrors those findings and recommendations . . . it must logically be inferred that they were adopted as the basis of that decision . . . .'" 14-ORD-181, p. 9.
In resolving the question presented, this office is 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., 826 S.W.2d 324, 327 (Ky. 1992). "Despite its manifest intention to enact a disclosure statute," however, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." 4 Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577-578 (Ky. 1994). See Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995).
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See City of Louisville at 658-660; Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983)(holding that "purely investigative materials" remain exempt under the statute and City of Louisville but "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" ); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992)( 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"); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001) (holding that a resignation from a position by an employee before the agency had reached a decision concerning possible termination was "a 'final action' and the subsequent decision of the Commission to end the hearings against Palmer constituted its 'final action' "). See 99-ORD-220; 02-ORD-86; 07-ORD-156; 10-ORD-075; 10-ORD-076; 11-ORD-052.
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, in City of Louisville 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 at 658-660 (emphasis added).
Consistent with City of Louisville and its progeny, decisions of this office have long shared the following premise:
Predecisional 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); 5 compare 01-ORD-47; 01-ORD-83. "[A]n 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. " 97-ORD-168, p. 6. Moreover, "[s]uch records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports." Id.
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," the Attorney General observed, "is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken." Id., pp. 6-7. Based on its view of governing case law, KSP maintained that a "Use of Force" inquiry was identical, in all material respects, to an internal affairs investigation, but was "'initiated upon the occurrence'" rather than the filing of a complaint, and was therefore protected, arguing, in relevant part, that only the underlying complaint (there was none), and the report indicating final action were open to public inspection. Id., pp. 2, 6. The Attorney General rejected this position based on the reasoning found above, which is also controlling here. See 07-ORD-090; compare 10-ORD-034.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office is prohibited from revealing the contents of the records provided for in camera review; however, the records can generally be described as the "Memorandum," i.e. , investigative report, directed to Lieutenant Michael Seis, (then Deputy Chief) Lieutenant Clayton Summer, and (then Chief) Guy Howie from the investigating officer, Sergeant Scott Mayes, two "Witness Interview Sheets," and the individual statements given by Shannan White Tinsley and Michael Tinsley. In the publicly accessible complaint, a copy of which is of record, the complainant alleged that Officer [White Tinsley] "abused her power as a police officer" by "threatening" the complainant's minor daughter on her property without her being present on June 6, 2011. In a letter directed to the complainant on June 28, 2011, Lieutenant Seis advised, "I reviewed your affidavit regarding Officer [White Tinsley's] conduct on 06/06/11. I find no evidence Officer [White Tinsley] violated Department policy or state law by her actions." The decision that no action was necessary constituted the agency's final action, which it properly disclosed. This final action did not explicitly "incorporate" or adopt either of the Witness Interview Sheets or the statements given by Officer White Tinsley and Mr. Tinsley, in whole or in part, nor were specific portions of the Memorandum summarizing all of the above relied upon explicitly. However, a review of the record as a whole confirms that Lieutenant Seis necessarily relied, albeit implicitly, on the findings of Sergeant Mayes which, in turn, were based on his assessment of the referenced interviews and statements, the only "evidence" gathered in the course of the investigation.
This office is unable to conclusively determine based on the information provided whether Sergeant Mayes' findings resulted from a determination that one statement was more credible than another, to the extent inconsistencies existed, or the undisputed facts did not support a finding that Officer White Tinsley's conduct violated HPD policy or state law regardless of which statement(s) were deemed most accurate or credible. HPD did not provide any explanation of what formed the basis of its final action, either in whole or in part, nor did it dispute that portions of the investigative report were relied upon as Mr. Trageser contended, maintaining instead that only the initiating complaint and the final action itself were subject to inspection, a position which is contrary to existing precedents. "[HPD] is required to provide not only any preliminary documents that were expressly incorporated into the report, but any documents that formed the basis of the final agency action." 14-ORD-181, p. 9. Accordingly, this office finds that HPD violated the Open Records Act in denying access to all records characterized as "preliminary notes," i.e. , the "internal investigation" on the bases of KRS 61.878(1)(i) and (j). Those records or portions thereof which did not form the basis of the agency's final action, whether explicitly or implicitly, maintained their preliminary characterization; the remainder were improperly withheld from disclosure and must be separated and made available per KRS 61.878(4). 6
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 Former HPD Officer Shannan White is referred to as "Shannon Tinsley," "Officer Tinsley," "Officer White Tinsley," and "Shannon White" in the record on appeal. For the sake of clarity, this office will refer to her by her current name, Shannan White Tinsley, in this decision.
2 Those redactions were not challenged on appeal.
3 The "preliminary exceptions" were codified as KRS 61.878(1)(g) and (h) when City of Louisville was rendered; however, they were subsequently recodified as KRS 61.878(1)(i) and (j).
4 Among the public records that may be excluded from public inspection in the absence of a court order are documents identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
5 In rejecting the agency's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, the Attorney General reasoned:
[T]he courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation. To the extent that prior open records decisions of this office are inconsistent with this view, they are hereby modified. Where the preliminary investigative report or records are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) and (j) exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed.
01-ORD-83, p. 14.
6 HPD "may review the records in dispute for the purpose of identifying and redacting information that implicates protected privacy interests" under KRS 61.878(1)(a). 07-ORD-090, p. 10 (original emphasis).