Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in its disposition of Tyler Fryman's June 21, 2017, request for records relating to internal handling of matters involving two troopers. For the reasons that follow, we find that one record was improperly withheld as "preliminary" in violation of the Act.
In his request to the KSP records custodian, Mr. Fryman asked for copies of the following:
(a) The final action taken or report made concerning a photo posted by Secretary of State Alison Lundergan Grimes of a KY State Police Employee traveling at a high rate of speed on or around Derby Day.
(b) Only if a final action or report has been taken/made in regards to request A , I would like a copy of all supporting documentation that was used in the final action/ report. . . .
(c) The final action taken on Trooper Scotty Pennington's altercation with a man on or around 4/21/2017.
(d) Only if a final action been [ sic ] taken in regards to request C, I would like a copy of all supporting documentation that was used in the final action. . . .
On June 27, 2017, KSP records custodian Emily M. Perkins responded as follows:
Please be advised that, in regard to item "a", the involved employee had specific contact with his Commander regarding the incident. The Commander drafted a note regarding the specific contact for his own use as the supervisor and contains statements and opinions from the supervisor and employee. The desk note was not placed in the employee's personnel file, nor was the incident classified as a formal complaint to be investigated by Internal Affairs. Because the only documentation in existence is a note drafted by a Commanding officer, the document is exempt from disclosure pursuant to KRS 61.878(1)(i) and (j), which states that preliminary notes expressing opinions and not indicating final action shall remain exempt from disclosure through the Open Records Act.
In regard to item "c", a response to resistance investigation was conducted. Such investigations are for administrative purposes only to ensure the response to resistance was within accepted police practices, are not disciplinary in nature, and contain statements and express opinions of the involved people. When being interviewed, officers and other witnesses are told that the interview is for the purpose of administrative investigation only and that answers given will only be used accordingly. Statements provided by officers and other witnesses related to a response to resistance investigation are preliminary in nature, and as such are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j), which state that preliminary records expressing opinions shall remain exempt from disclosure through the Open Records Act.
Mr. Fryman initiated this appeal on June 30, 2017.
KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in the cases of, respectively:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
In University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action."
In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) or (j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action , the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
(Emphasis added.) A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658, 659, 660 (Ky. App. 1982). It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action. "In our view, the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing City of Louisville, supra).
In 10-ORD-075 (copy attached), we held that where a Response to Resistance Report concludes that no further investigation is necessary, it constitutes the basis of a decision to take no action, and therefore loses its preliminary character. We note that the Response to Resistance Report at issue in this appeal, which we have reviewed in camera pursuant to KRS 61.880(2)(c), was not submitted to the KSP Internal Affairs Branch for any further investigation. Therefore, following 10-ORD-075, we find that the Response to Resistance Report regarding Trooper Pennington was improperly withheld as preliminary.
Regarding the other incident which was the subject of Mr. Fryman's request, we have reviewed in camera the Specific Contact Report that resulted from this matter. In a response to this appeal dated July 7, 2017, KSP Staff Attorney Cody Weber reiterates that the Specific Contact Report "was not placed in the employee's personnel file, nor was the incident classified as a formal complaint to be investigated by Internal Affairs." He argues that "since no final action has been taken it is impossible to provide a copy of all documents supporting that final decision and action."
We are unaware of any previous appeal addressing Specific Contact Reports. The form KSP-024, generically referred to as a Supervisory Contact Report, 1 may be used to report either "documented counseling," which is considered disciplinary in nature, 2 or any other "specific contact," which may be described as a formal meeting between a sworn officer and supervisor concerning an issue arising from the officer's conduct. 3 The purpose of this specific contact, which took place on May 11, 2017, is listed on the form as "AM-E-1/Other Disciplinary. " Significantly, however, there is no suggestion that any complaint or other document was received by KSP in regard to the trooper's conduct, nor that any type of administrative process was otherwise initiated.
After summarizing the background to the meeting and the substance of the meeting itself, the form indicates that a copy of the Specific Contact report will remain in the supervisor's "desk file for one year. " By all appearances, the supervisor who drafted the document believed the officer's actions did not present any immediate need for corrective action. There is no indication of a further process or referral to the Internal Affairs Branch for any inquiry or investigation, nor does it appear that the form was shared with any persons not present in the meeting.
The KSP characterizes the Specific Contact Report in this case as a "desk note." A "note" under KRS 61.878(1)(i) is defined as a "brief record," especially "one written down to aid the memory. " 97-ORD-183. Since this Specific Contact Report, under the facts presented, appears to have been merely a brief summary of the conversation, kept temporarily for the supervisor's own purposes, we find that it was properly withheld as a "note" under the statutory exception.
We observe, incidentally, that Supervisory Contact Reports which are not maintained in an officer's personnel file do not appear to be a separately scheduled record in the Department of State Police Records Retention Schedule. Since the destruction of such records after one year may be inconsistent with that schedule, we refer this matter to the Kentucky Department for Libraries and Archives for such review as it may deem appropriate.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes