Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in partially denying Lawrence Trageser's undated request, delivered to KSP Headquarters on July 10, 2017, in which he asked for "any and all records reflecting" the June 2017 activity logs for Troopers Todd Steven Maggard, Eddie Whitworth, Jennifer Johnson, Joey Johnson, and Brian Miller, as well as the "personnel files, including but not limited to, any and all disciplinary actions from any posts, internal affairs ["IA"] investigations, resignation letters, termination letters, complaints and . . . the general information contained within the personnel files of the following KSP Troopers: Kenny Stewart, David Decker, Brian Miller, Jennifer Johnson, Mitch Harris and Todd Maggard." Mr. Trageser advised that he would "inspect records at KSP Headquarters" upon being notified of their availability. 1
In a letter dated July 14, 2017, KSP advised Mr. Trageser that no IA investigations existed pertaining to Troopers Decker, Stewart, Miller, or Maggard. 2 KSP further advised, "there is an [IA] investigation pending pertaining to Tpr. Jennifer Johnson; however, the investigation is ongoing and any records that may exist are preliminary records, as the agency has not taken any final action in the matter. 3 Therefore, any records in the pending investigation are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j)[.]" KSP noted that, "only the initial complaint and final disposition of the complaint on the completed [IA] investigations regarding Tpr. Mitch Harris will be provided for inspection. " Lastly, KSP noted, "there is civil litigation between [KSP] and yourself regarding whether or not the full [IA] investigations are subject to disclosure. Should a final decision be reached in that matter, then at that time [KSP] will be in a position to reconsider this request and make a decision in light of the court's ruling." 4 By letter dated August 15, 2017, KSP advised that a copy of the requested activity logs, 5 and the initial complaint and final disposition of the complaint in each of Trooper Harris' IA investigation files would be mailed upon receipt of $ 56.70 (480 pages at $ .10 per page and $ 8.70 for postage). See KRS 61.872.
On appeal, Mr. Trageser relied upon the analysis contained in 15-ORD-067, 15-ORD-170, 15-ORD-080, and 16-ORD-106 in support of his position that KSP improperly withheld the IA investigation files in their entirety. Mr. Trageser also emphasized that he requested to inspect all existing responsive documents per KRS 61.872(1), (2), and (3), as opposed to receiving copies. Upon receiving notification of Mr. Trageser's appeal from this office, Staff Attorney Cody Weber responded on behalf of KSP. Mr. Weber clarified that KSP "merely offered an alternative method for [Mr. Trageser] to review the records rather than him inspecting the records at KSP Headquarters. Further, [KSP] has not and does not currently oppose [Mr. Trageser] inspecting the records at KSP Headquarters, provided he makes payment of the appropriate fees in advance ." (Emphasis added). Citing Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), KSP again observed that " upon payment of $ 48.00 ($ .10 per page), Mr. Trageser will be permitted "to inspect the records at KSP Headquarters during the regular office hours of the agency." (Emphasis added). The italicized language illustrates a fundamental misconception of KRS 61.872.
In 95-ORD-82, the Attorney General analyzed KRS 61.847(3) as it relates to the duty imposed on a public agency to "separate the excepted and make nonexcepted material available for examination" pursuant to KRS 61.878(4). Of particular significance, this office held that separating excepted material is not equivalent to producing a record in a specially tailored format or nonstandardized format within the meaning of KRS 61.874(3) as required for a public agency to recover staff costs; rather, a public agency is required to discharge this duty under KRS 61.878(4) and must bear the cost of redaction . Id. , p. 4. (Emphasis added.) "If it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of public information, the [public] agency shall bear the cost of such separation." Id. (Citation omitted). To clarify, a public agency cannot "assess the requester any charge for exercising the clearly defined right to inspect public records. . . . That right is firmly rooted in the language of the Act." 07-ORD-013, p. 10. KRS 61.872(1) and (2). See 15-ORD-098.
KRS 61.872(3)(a) and (b) make it clear that the Act contemplates records access by two means: either onsite inspection during the regular office hours of the agency or by receipt of copies of the records from the agency via mail. Id. 6 Upon inspection, the applicant shall have the right to make abstracts of the public records. . . ." KRS 61.874(1). Accordingly, the "public has an absolute right to conduct on-site inspection of public records" and this provision of inspection is not "a courtesy extended to the public . . . subject to the terms and conditions dictated by the . . . public agency" but a right that finds ample support in the Act and the decisions construing it. 98-ORD-69, p. 3; 11-ORD-029 (reaffirming that with limited exception the Act gives the requester the authority to prescribe the method of access). When a public agency provides a requester with an opportunity to inspect records, the "requester enjoys a corollary right to obtain copies" of those records upon receipt of payment. 02-ORD-168, p. 7, citing KRS 61.874(1) and OAG 89-40. See 10-ORD-154. However, "there is no authority for the imposition of fees for onsite inspection or 'self-access'" and this office has therefore recognized that any such policy or practice constitutes a subversion of the intent of the Act within the meaning of KRS 61.880(4). 07-ORD-013, p. 10; 15-ORD-159 ("A statute authorizing copying charges cannot be applied to a mere attempt to inspect records."); 11-ORD-166. See Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008)(rejecting Department of Corrections' reliance on a policy that did not correspond to provision of the Act "because it purports to add a requirement not found in the statutes," and the Department "'cannot by its rules or regulations, amend, alter, enlarge or limit the terms of the legislative enactment.'")(citations omitted). "KRS 61.874 represents part of a comprehensive scheme, embodied in the Open Records Act, addressing when and to what extent public agencies may charge fees for access to public records. " 15-ORD-159, p. 5. Accordingly, KSP subverted the intent of the Act, within the meaning of KRS 61.880(4), insofar as it advised Mr. Trageser that he could inspect records only after paying KSP for the copies that he did not request.
In addressing the merits of Mr. Trageser's argument regarding the accessibility of Trooper Harris' IA files on appeal, KSP noted that Mr. Trageser relied in part on 16-ORD-106 and the Franklin Circuit Court Opinion and Order in Civil Action No. 16-CI-689. However, Civil Action No. 16-CI-689 is currently on appeal with the Kentucky Court of Appeals (No. 2017-CA-750). Because the subject matter of that appeal is the accessibility of certain IA investigative files, and Mr. Trageser is the appellee in that case, KSP asked the Attorney General to "abstain from ruling on that issue in this current appeal due to the pending Kentucky Court of Appeals case on the same subject matter." This office must respectfully decline to hold the instant appeal in abeyance until the pending lawsuit is resolved as requested. See 17-ORD-243 (no provision of the Open Records Act permits the Attorney General "to hold an appeal in abeyance pending resolution of an appeal of an earlier open records decision"); 16-ORD-173; 17-ORD-014; compare 17-ORD-142. "Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected" in 16-ORD-106 and the other decisions upon which Mr. Trageser premised his appeal. (Emphasis added.)
Given the lack of information provided regarding the content of the specific records withheld from disclosure in this case, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office requested that KSP provide us with unredacted copies of the records withheld for the limited purpose of in camera review. KSP promptly complied. When viewed in light of 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") and 16-ORD-106, and the authorities upon which those decisions were 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. 7
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 Bd. 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)]." Beckham v. Bd. of Educ. of Jefferson Cnty., 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. City of Louisville v. The Courier-Journal and Louisville Times Co., 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"); Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 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); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013). See 99-ORD-220; 02-ORD-86; 07-ORD-156; 10-ORD-075; 11-ORD-052; 15-ORD-170.
Here, as in 16-ORD-106, 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 and 16-ORD-106, this office rejected the position set forth by KSP here. Relying upon prior decisions of this office dating back to 2001, 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 was controlling in 16-ORD-106 and is followed again here; a copy of that decision is enclosed.
Our in camera review of the records withheld confirms that in both cases, IA-12-025 and IA-15-004, the final decision maker, i.e . the KSP Commissioner, agreed with the "final determination" by IA ("Conduct Unbecoming (Class C) and "Inefficiency" (Class C), respectively), that the allegations which prompted the investigation were "substantiated. " IA based its determination, which the Commissioner reviewed and concurred with, i.e. , adopted, on the facts and evidentiary conclusions of the investigator, who found in each instance that the allegations were substantiated. 8 With regard to both investigations, the Commissioner also followed the recommendation of IA as to appropriate disciplinary action (two-day suspension and four-day suspension with two days probated, respectively). Accordingly, records comprising the subject investigations were ultimately adopted by the final decision maker and therefore forfeited their preliminary characterization. 9 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. Insofar as the IA Commander, and ultimately the Commissioner, implicitly deemed some limited portions of the witness interviews to be inconsistent or not credible, and therefore did not rely upon those portions of the interviews, those portions retain their preliminary character and may be withheld under KRS 61.878(1)(i) and (j).
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 On appeal, Mr. Trageser asserted that KSP violated the Act from a procedural standpoint in failing to either issue a written response within three working days per KRS 61.880(1) or properly invoke KRS 61.872(5) if appropriate. Mr. Trageser hand-delivered his request on July 10, meaning that a written response was due on July 13 regardless of whether the records custodian did not receive the request until July 11. Inasmuch as the law governing compliance with KRS 61.880(1) and 61.872(5) is well-established, the parties are both familiar with these mandatory provisions, and the delay here was minimal, this office declines to belabor the point. Likewise, the Attorney General declines to make any finding as to Mr. Trageser's related factual assertion regarding the date on which the envelope containing his response was postmarked, etc.; this office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-122.
2 A public agency such as KSP cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-188; 07-ORD-190; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 12-ORD-195. The record on appeal is devoid of any showing and the right to inspect records only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. Mr. Trageser did not challenge the agency's position regarding nonexistent records; accordingly, further discussion is unwarranted.
3 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." 17-ORD-255, p. 3. ( See 10-ORD-065 and decisions cited therein). Mr. Trageser did not dispute the agency's position regarding application of KRS 61.878(1)(i) and (j) to Trooper Johnson's investigation but focused exclusively on the propriety of its denial relative to Trooper Harris. Our analysis will proceed accordingly.
4 In Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001)(the Court of Appeals rejected this position and expressly agreed with decisions of the Attorney General holding that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation.") See Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010)(reaffirming Stewart in holding that KRS 61.878(1) "is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n) . . . [and] not an exception to an agency's duty to disclose nonexempted records")(original emphasis); 16-ORD-172.
5 Pursuant to 40 KAR 1:030, Section 6, the Attorney General must decline to render a decision addressing issues regarding the requested "activity logs" because those issues were rendered moot upon disclosure of the records by KSP.
6 In 1994, KRS 61.874(6) was enacted to permit online access by means of remote physical connection to a public agency's network. This provision is not implicated here.
7 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.
8 The Commissioner made one additional comment with regard to IA-15-004 but his comment was consistent with the findings and recommendations of the IA Commander.
9 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. (Emphasis in original).
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