15-ORD-170 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Records Decision

Lawrence Trageser appeals the Bullitt County Sheriff's Department's partial denial of his July 17, 2015, request for "the personnel files of deputies Mike Corder and Lynn Hunt...includ[ing] but not limited to any disciplinary actions, investigations, complaints, resignation letters, and termination letters." The department promptly responded to Mr. Trageser's request by providing him with "copies of the records of all final actions taken with respect to Deputies Corder and Hunt." Citing KRS 61.878(1)(i) and (j), and City of Louisville v. Courier-Journal and Louisville Times, 637 S.W.2d 658 (Ky. App. 1982), the department asserted that "'Internal Affairs' records are exempt from public inspection and disclosure as preliminary documents." This appeal followed.

In his letter of appeal, Mr. Trageser complains about the paucity of records produced, focusing on the omission of any records from the deputies' personnel files. Challenging the Department's response to his request for disciplinary records, he relies on 15-ORD-067 and 15-ORD-080. These open records decisions affirm the public's right of access to once preliminary documents in an internal affairs file that forfeit their preliminary status when final action is taken if they are adopted as the basis, in whole or in part, of the agency's final action. He maintained that the documents reflecting final action that were released to him "are very clear in explaining that the termination of Deputy Matthew B. Corder and Yvonne L. Hunt were the results of investigations into their actions . . . ."

In subsequent correspondence, the department acknowledged that Mr. Trageser's request "was interpreted to be a request only for records related to 'disciplinary actions . . . .'" It corrected this error by forwarding him copies of the deputies' "complete personnel files." 1 The department agreed to reevaluate its position on preliminary internal affairs investigative records, in light of 15-ORD-067 and 15-ORD-080, observing:

Bullitt County Sheriff's Chief Deputy John Cottrell is currently out of town, but is scheduled to return by the end of this week. He is the Internal Affairs Officer for the Sheriff....Upon his return, [department counsel] will meet with him to determine what he presented to the Sheriff, what the Sheriff relied upon for this final decision, and thus, what Internal Affairs records may be subject to disclosure . . . . 2

Shortly thereafter, this office requested copies of the disputed internal affairs files under authority of KRS 61.880(2)(c). Our review of the records, along with the cited authorities, confirms the following.

1. 15-ORD-067 is dispositive of the legal question presented .

In 15-ORD-067 this office determined that the Hopkinsville Police Department violated the Open Records Act when it denied a requester access to records, characterized as "preliminary," that related to a disciplinary action investigated by the department's internal affairs division. The department cited City of Louisville, 637 S.W.2d at 658, in support of its position. Relying on open records decisions dating back to 2001, 3 we rejected the department's position that it discharged its legal obligation by releasing the complaint or initiating record and the final action taken, concluding that the department was required to release not only "preliminary documents that were expressly incorporated into the [final agency action] but any documents that formed the basis of the final agency action. " 15-ORD-167, p. 7; accord 15-ORD-180. A copy of 15-ORD-067 is enclosed and its reasoning adopted in full.

2. 15-ORD-067 requires disclosure of additional internal affairs records .

Having reviewed the internal affairs records disclosed to this office under authority of KRS 61.880(2)(c), and applying the analysis set forth in 15-ORD-067 and past open records decisions on which it was based, we find that the following records were erroneously withheld:

1. Internal Affairs Investigation 1A-15-001 cover sheet;

2. Case Number A1-15-001 checklist form;

3. Case Number 1A-15-001 "Case Investigative Record";

Records 1 and 2 are administrative records opening the file and do not contain drafts or notes. Nor do they contain opinion or recommended policy. Record 3 identifies the complainant, Sheriff Greenwell, along with his business address, business telephone number, the "Officer(s) Involved," and the date, time, and location of the incident prompting the investigation. Each event occurring in the course of the investigation is identified by date, time, and a brief narrative. Record 3 is neither a draft nor a note. It does not contain opinion or recommended policy. None of these documents qualify for exemption under KRS 61.878(1)(i) and (j).

4. Photocopy of Deputy Corder's Kentucky Driver's License;

A photocopy of Deputy Corder's driver's license must be disclosed for the reasons set forth above, but the Department may redact his home address, date of birth, height, weight, organ donor status, OLN, 4 and Social Security number under authority of KRS 61.878(1)(a) inasmuch as Deputy Corder's privacy interest in nondisclosure of this non-work related data is superior to the public's interest in disclosure.

5. Notarized confirmation of oath taken by Officer Billy Allen before his statement;

6. Notarized confirmation of action taken by Deputy Matt Corder before his statement;

These notarized confirmations, like records 1, 2, 3, and 4, above, do not contain drafts, notes, opinions, or policy recommendations and do not qualify as preliminary documents under KRS 61.878(1)(i) and (j). 5

7. Signed Notice of Garrity Warnings;

For the same reasons set forth above in relation to notarized confirmations of oaths, this record does not fall within the exceptions for preliminary drafts, notes, opinions, or policy recommendations. It is a statement of the law.

8. "Accused Sworn Employee Statement";

In spite of its caption, this record only identifies the parties present at the interview and poses a series of questions to Deputy Corder about his understanding of the requirements for the taking of his statement. It does not constitute a preliminary record under either KRS 61.878(1)(i) or (j). 6

9. Email from Kentucky Association of Counties employee and Assistant Deputy Cottrell;

Because the opinion expressed in this email was adopted, in part, as the basis for the department's final action, we find that it forfeited its preliminary characterization and must be disclosed.

10. CAD report for incident relating to arrest; 7

Like the records deemed nonexempt above, this report does not qualify as a draft, note, opinion, or policy formulation and is therefore not exempt under KRS 61.878(1)(i) and (j).

11. "Receipt of 48 Hour Notice Service";

This document demonstrates compliance with the KRS Chapter 15 requirements for an internal affairs investigation but contains no drafts, notes, opinion, or policy recommendation. It is not a preliminary document under KRS 61.878(1)(i) and (j) and must be disclosed.

12. 48 Hour Notice and attachments;

For the reasons set forth above in relation to Document Number 11, those records must be disclosed.

13. "Receipt of Response Letter";

Again, because this administrative document confirms compliance with KRS Chapter 15 but does not consist of drafts, notes, opinions, or policy recommendations, it must be disclosed. It is not a preliminary document within the meaning of KRS 61.878(1)(i) and (j).

14. "Internal Review, Response to Resistance Report on Deric Baise";

This document contains the findings, conclusions, and recommendations of the Internal Affairs investigations. Its findings and conclusions are mirrored in the final agency action terminating Deputy Corder. It formed the basis of Chief Deputy Cottrell's recommendation to Sheriff Greenwell and the Sheriff's final action in the matter. It must be disclosed. Because the recommended discipline was not imposed, this portion of the review may be withheld under KRS 61.878(1)(j) as an opinion that was rejected by the final decision maker.

15. May 21, 2015, memo from Chief Deputy Cottrell to Sheriff Greenwell relating to "Investigation of Deputy Matt Corder";

Chief Deputy Cottrell relays his final determination, identifying the policies violated. Although it was a preliminary document at its creation and submission, the findings it contains are mirrored in Sheriff Greenwell's final action and therefore forfeited their preliminary characterization.

16. May 26, 2015, letter from Sheriff Greenwell to Deputy Corder terminating his employment;

This record was properly disclosed under the rule announced in City of Louisville, 637 S.W.2d at 658.

17. Duplicate of document 16;

Although it is unclear why duplicates appear in the file, they, too, must be disclosed unless Mr. Trageser notifies the department that he does not wish to obtain duplicate copies.

18. "Receipt of Termination Letter";

As an administrative record documenting Deputy Corder's receipt of Sheriff Grenwell's termination letter, this is neither a draft, a note, an opinion, nor a policy recommendation. It must, therefore, be disclosed.

We have attached a copy of Assistant Deputy Corder's internal affairs investigative file, provided to us by the Department in response to our KRS 61.880(2)(c) request, to the Bullitt County Sheriff's Department's copy of our open records decision in this matter. Every nonexempt record not already disclosed contains a number written in red ink in the upper right hand corner. The Department should be guided by the analysis of these records set forth above in revising its response to Mr. Trageser's request. Pursuant to KRS 61.880(2)(c), Mr. Trageser has not been provided with a copy of the investigative file, nor does it appear in our permanent open records decision file.

3. The Department properly withheld some records as nonresponsive or preliminary.

We affirm the Department's denial of the following records for the reasons stated:

. March 23, 2015, open records request;

This document is unrelated, and therefore nonresponsive, to Mr. Trageser's request.

. May 13, 2015, memorandum from Corder to Cottrell and return memorandum bearing the same date;

These memoranda consist of an opinion and/or recommendation that was not adopted, in whole or in part, as the basis of final action.

. March 9, 2015, and May 6, 2015, memoranda from Captain Mike Murdoch to Sheriff Greenwell;

These memoranda were prepared before the investigation was initiated by the Sheriff, contain preliminary opinion and recommendation, and cannot be deemed to have forfeited their preliminary characterization because there is no indication that they were adopted, in whole or in part, as the basis for final action.

4. Because Assistant Deputy Hunt's internal affairs file was not produced for KRS 61.880(2)(c) inspection, we cannot conclusively resolve the propriety of its actions relative to the file.

In closing, we note that the Bullitt County Sheriff's Department did not provide us with a copy of Assistant Deputy Lynn Hunt's internal affairs file because the file was "in active use. " We are therefore unable to assess the propriety of its actions relative to that file. Again, the Department should be guided by the analysis that appears above in revising its response to Mr. Trageser's request as it relates to Assistant Deputy Hunt. Until it has done so, its duties under the Open Records Act will not be fully discharged.

Either party may appeal this decision 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.

Footnotes

Footnotes

1 The department redacted "personal data," which it described as "Social Security numbers, home addresses, home telephones, personal bank accounts," but failed to cite the statutory exception authorizing the withholding. KRS 61.880(1). Mr. Trageser raised no objection to the redactions. The department, however, is reminded that nondisclosure of all or any portion of a public record must be justified by citation to one or more statutory exceptions.

2 Pursuant to KRS 61.872(5), a public agency cannot indefinitely postpone access to public records that are in active use, in storage, or otherwise unavailable. The statute requires the agency to provide, in writing, a detailed explanation of the cause for delay, beyond the three day statutory deadline, and "the place, time, and earliest date on which the records will be available."