Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Lawrence Trageser initiated this appeal by letter dated February 1, 2016, challenging the disposition by the Kentucky State Police ("KSP") of his December 28, 2015, request for several categories of records, including the personnel file of retired KSP Trooper Jason Woodside. Mr. Trageser advised that records being sought included "any disciplinary actions, reprimands, termination letters, resignation letters," etc . from any post to which Mr. Woodside was assigned regardless of whether those records are "specifically contained in his general KSP or master employee file." 1 By letter dated January 26, 2016, 2 KSP advised Mr. Trageser that "KRS 61.878(1)(i) and (j) allow the nondisclosure of the entire internal affairs ["IA"] case file as all documents express opinions and are preliminary in nature. Keeping preliminary documents exempt from disclosure protects the integrity of the investigations by allowing persons interviewed in the investigation to freely express opinions without fear of retaliation." KSP relied upon
City of Louisville v. The Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982)(if the final decision maker adopted the notes or recommendations of IA as part of his final action, "clearly the preliminary characterization is lost to that extent"), in addition to prior decisions of this office, none of which validate the position that a public agency is entitled to withhold an entire investigative file (or any portions thereof which ultimately form the basis of the agency's final action) .
Upon receiving notification of Mr. Trageser's appeal from this office, KSP advised that its original response "incorrectly stated that no part of the [IA] case file would be produced." However, KSP maintained that KRS 61.878(1)(i) and (j) apply to "portions of [IA] records that were of a preliminary nature and were not incorporated into the final decision. " 3 KSP advised that its response "should have stated that the initial complaint and final disposition of same would be provided," and it would provide both upon receipt of payment. In support of this position, KSP relied upon City of Louisville , 12-ORD-055 (affirming denial of request by police department for those files relating to investigations of alleged misconduct by officer based on KRS 61.878(1)(i) and (j) because those records were not adopted, in whole or in part, as the basis for the agency's final action) , and 15-ORD-067 (police department violated the Act in denying access to preliminary documents relating to IA investigation of a former police officer's conduct in their entirety "as the records forfeited their preliminary characterization to the extent such records were adopted, whether explicitly or implicitly, as the basis or a part of the agency's final action regarding the investigation"). When viewed in light of 15-ORD-067, and the authorities upon which that decision was premised, the record on appeal only validates the withholding by KSP of the opinions and recommendations pertaining to discipline imposed that were not relied upon by the final decision maker, i.e. , the Commissioner; the denial otherwise violated the Act. Our holding, as with all cases involving application of KRS 61.878(1)(i) and (j), is restricted to its unique facts.
Given the lack of information provided regarding the specific records withheld from disclosure, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3 this office requested that KSP provide us with a copy of the records withheld for purposes of in camera review. KSP promptly complied. However, KSP subsequently advised that upon actually reviewing the relevant files, a second IA investigation was located. KSP also provided a copy of that file to assist in facilitating a correct resolution of the issues presented. Our in camera review of both investigative files did not provide sufficient clarity for this office to determine which records, if any, were properly withheld on the bases of KRS 61.878(1)(i) and (j) as construed in governing legal precedents. 4 Accordingly, under authority of KRS 61.880(2)(c) and 40 KAR 1:030 this office also requested that KSP explain the nature and purpose of "Administrative Inquiry 12-002" and the relationship between it and "IA-12-008." This office asked KSP to "advise what information or documents were relied upon by KSP, whether expressly incorporated or not, in reaching the final disposition regarding 'IA-02-057," and the final disposition regarding 'IA-12-008,'" and to explain the difference, if any, between the procedures followed in each.
KSP provided this office with a copy of the policies and procedures governing the IA investigative process that were in effect during the 2002 investigation and the slightly modified version that governed the 2012 investigation. As outlined in KSP General Order AM-E-1, KSP advised, "administrative inquiries ("IAQ"), are basic preliminary fact-finding inquiries to determine if the allegations meet the standards to conduct a full [IA] investigation and 'classify' a complaint. Classification of a complaint refers to making a determination of what Standard of Conduct is alleged to have been broken." If an IAQ is completed and the determination is made that the allegations made against the officer would, if proven, be a violation of the standards of conduct, KSP continued, "the complaint is then turned into an [IA] investigation, or IA, and assigned an IA number and a full investigation into the allegations is conducted." Accordingly, IAQ 12-002 was preliminary to IA 12-008 but is part of the same investigation. KSP also identified the individual employees whose signatures appeared on the memoranda from IA to its Commissioner in each investigation as requested. Prior to any disciplinary investigation being finalized, KSP explained, those employees review the investigation and recommended discipline. Said employees have "no involvement in conducting the actual investigation" beyond reviewing it and indicating whether they concur with the determination or dissent. KSP did not specify which records were relied upon as the basis for the agency's final action regarding each investigation.
This office finds that in withholding all IA investigative records except for the initiating complaint and the final disposition of each case, KSP acted contrary to established legal authority. 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);
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). The position of KSP "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; 15-ORD-067. In other words, "the fact that none of the [records] were expressly incorporated into the final [action] does not end the inquiry." 14-ORD-181, p. 8. In 15-ORD-067 this office rejected the position set forth by KSP here. Relying upon prior decisions of this office dating back to 2001 (see note 3), the Attorney General determined in 15-ORD-067 that the Hopkinsville Police Department ("HPD") was required to provide "not only any preliminary documents that were expressly incorporated into the [agency's final action] but any documents that formed the basis of the final agency action." 15-ORD-067, p. 7; 15-ORD-170. The analysis contained at pages 3-7 of 15-ORD-067 is controlling and is followed again here; a copy of that decision is enclosed.
Based upon 15-ORD-067, this office must conclude that KSP violated the Act in withholding the entire IA investigative files (with the noted exceptions). Our in camera review of the records withheld confirms that in both cases the final decision maker, i.e . the KSP Commissioner, agreed with the "final determination" by IA that the allegation(s) which prompted the investigation was "substantiated. " IA based its determination, which the Commissioner adopted, on the facts and evidentiary conclusions of the investigator, who found in each instance that the allegations were substantiated. Accordingly, records comprising the subject investigations were ultimately adopted by the final decision maker and therefore forfeited their preliminary characterization. 5 Compare 10-ORD-046. "Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports." 97-ORD-168, p. 6. With regard to IA-02-057, the Commissioner not only agreed with IA that the allegations were substantiated, but also followed its recommendation as to disciplinary action. Based upon the July 10, 2012, memorandum from IA to the Commissioner, as compared to the "Notice of the Intent to Take Disciplinary Action, " 6 in IA-12-008 the Commissioner disagreed with the disciplinary action that IA recommended. Accordingly, records containing the opinions and recommendations pertaining to discipline that were not relied upon or adopted by the Commissioner in that instance can be properly withheld. Both files also include records that are similar to "administrative records opening the file" or "statements of the law" (statutes and policies in IA-02-057), checklists, etc. deemed nonexempt in 15-ORD-170, which cannot be properly characterized as drafts, notes, or recommendations, nor do they contain any opinions or recommendations even if characterized as memoranda. Thus, any such responsive documents were also improperly withheld.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 KSP received Mr. Trageser's request on January 4, 2016, and notified him by letter dated January 7, 2016, that Mr. Woodside was being notified of the request under authority of Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575 (Ky. 1994), to provide him with an opportunity to contest disclosure of his personnel or disciplinary records in circuit court per KRS 61.882(1). KSP may wish to review 14-ORD-064, pp. 7-8, regarding application of Beckham .
2 KSP agreed to provide Mr. Trageser with all other existing documents responsive to his request for Mr. Woodside's personnel file with minimal redactions made per KRS 61.878(1)(a). Those redactions are not in dispute.
3 In rejecting the agency's position that an IA investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, this office reasoned that "the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' . . . to avoid a narrow, legalistic interpretation." 01-ORD-83, p. 14. When the preliminary investigative records have been "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; 15-ORD-067. Decisions upon which KSP initially relied that predated 01-ORD-83 required agency disclosure of investigative records "incorporated" (and in some cases if "adopted") into the final action.
4 Pursuant to KRS 61.878(1)(i) and (j), public agencies may withhold "[p]reliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency," and "[p]reliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended," respectively.
5 KSP may, of course, review the records "for the purpose of identifying and redacting any information that implicates protected privacy interests" per KRS 61.878(1)(a). 04-ORD-162, p. 14.
6 Among the seven (7) pages that KSP advised this office it was releasing were three separate memoranda dated February 13, 2003, and the July 10, 2012, memorandum directed to the Commissioner from Internal Affairs, which KSP characterized as final dispositions. Insofar as the Commissioner is vested with authority to impose disciplinary action, rather than IA, the March 27, 2003, memorandum and the August 1, 2012, memorandum directed to (then) Trooper Woodside from the Commissioner, notifying him of the disciplinary action being taken regarding IA-02-057 and IA-12-008, respectively, constitute final actions of KSP and thus must be disclosed.