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 Real Estate Commission ("KREC") violated the Open Records Act in its denial of Wayne Gilreath's October 1, 2017, request for "Investigator Jim Cupp's Investigative Report pursuant to Case No. 16-0094, aka Wayne Gilreath v. Julie Huff and Sherry L. Watkins of Watkins Realty & Associates." For the reasons that follow, we find no violation of the Act.
On October 2, 2017, Administrative Coordinator Shelly Saffran replied to Mr. Gilreath's request on behalf of KREC, as follows:
[P]lease be advised that your request for copies of the report of investigation by Jim R. Cupp in Case No. 16-0094 is in draft form [ sic ]. Therefore, it is not subject to open records according to KRS 61.878(1)(h) , and possibly (i) and (j).
Mr. Gilreath's appeal was received in this office on October 23, 2017. He argues that the agency's response "is merely a smokescreen and a rouge [ sic ] to deny my request."
Mr. Gilreath includes with his appeal copies of two e-mails he previously received. The first, from investigator Jim Cupp, is dated May 30, 2017, and states: "I can not disclose the ongoing results of the investigation of your complaint. Once the investigation is completed you can request a copy of the investigation from the Kentucky Real Estate Commission." The second, dated June 23, 2017, is from Legal Secretary Patricia G. Farris, Kentucky Real Estate Authority, who states: "We do not provide copies of the Investigation Report to anyone until after the Commission has had time to review it."
In a response to the appeal dated October 30, 2017, KREC General Counsel Ryan Morrison argues as follows:
The Appellant, Wayne Gilreath, requested an investigative report from a [KREC] administrative matter. The requested record is excluded from Kentucky open records laws under KRS 61.878(1)(i) and (j) (the October 2, 2017 notice to the Appellant inadvertently cited KRS 61.878(1)(h)). Under City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 660 (Ky. App. 1982), investigative files in administrative matters "are exempt from public inspection" pursuant to KRS 61.878(1)(i) and (j). Investigative files remain exempt unless they are adopted as part of KREC's final action on the administrative matter. Id. at 659. Here, the investigative report was not adopted as part of KREC's final action on the administrative matter at the time of Mr. Gilreath's request . Accordingly, the investigative report is exempt from public inspection.
(Emphasis added.) It does not appear from the record that final action by KREC had yet been taken on Mr. Gilreath's complaint as of the time of his October 1, 2017, open records request. From the language of KREC's response to the appeal, it appears possible that the investigative report may have subsequently been, or might be in the future, adopted as part of KREC's final action.
We find the "preliminary records" exceptions under KRS 61.878(1)(i) and (j) to be dispositive. KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Records which are part of an ongoing investigation, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter. ( See 10-ORD-065 and decisions cited therein.)
"[P]iecemeal disclosure along the path of the decision-making process is not mandatory."
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013). Mr. Gilreath contends that the investigative report should be disclosed because it has been submitted to the Commission for review and thus is no longer preliminary. It is true that records which are adopted as the basis of final agency action cease to be preliminary under KRS 61.878(1)(i) and (j) ( see
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992)); however, "[n]ot every agency action is final action. " 14-ORD-234. Until final agency action is taken, records constituting part of a continuing investigation "are properly characterized as preliminary, and therefore remain exempt from public inspection. " 05-ORD-147; see also 01-ORD-47. Accordingly, we conclude that KREC lawfully denied access to the report on October 2, 2017. Mr. Gilreath is at liberty to resubmit his request after KREC has taken final action on the complaint.
KRS 61.880(1) requires that an agency response denying inspection of records give "a brief explanation of how the [cited] exception applies to the record[s] withheld." KREC's response on October 2, 2017, though confusingly worded, appears to state that the investigative report "is in draft form." Although this was an inexact way of expressing that the report had not been adopted as the basis of final agency action, we do not deem it wholly insufficient to comply with the requirements of KRS 61.880(1). Accordingly, we find no violation of the Open Records Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.