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 ("KSP") violated the Open Records Act in its disposition of WHAS-11 reporter Derrick Rose's request for "[a]ny and all memoranda, letters, notices from [KSP] Commander of Internal Affairs Branch to the [KSP] Commissioner in regards to the findings and disposition of the internal investigation of [KSP] Trooper Anthony Harrison." For the reasons that follow, we find that KSP violated the Act.
While Mr. Rose's request was dated February 28, 2018, the record does not indicate when it was sent or received by KSP. On March 8, 2018, KSP responded that "KRS 61.878(1)(i) and (j) allow the non-disclosure of the entire case file as all documents express opinions and are preliminary in nature." KSP therefore denied all documents "except for the initial complaint and final disposition. " Mr. Rose initiated this appeal on March 29, 2018, arguing that "[b]ecause the Commissioner made a final decision and adopted the substantiated findings of the internal investigation, any documents from that file no longer hold preliminary status."
We requested the disputed records for in camera review pursuant to KRS 61.880(2)(c), and KSP complied with this request. The records pertain to two Internal Affairs ("IA") investigations, IA-17-015 and IA-17-034. The file for IA-17-015 incorporates the earlier Response to Resistance investigation from which it originated, RR-16-031. In each case, the file contains a form "Memorandum" addressed from the IA Commander to the Commissioner, indicating the final determination and disposition; the completed IA investigation with a cover memorandum from the IA Commander to the commissioner; 1 and a form for "comments during review," showing whether intermediary reviewers and the Commissioner concurred with IA's findings and recommendations. In each case, the Commissioner and the intermediate reviewers concurred in the factual findings in the IA investigation report; however, some of the recommendations differed as to disciplinary action.
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) and (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.
It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes a 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).
We have recently dealt with KSP's argument that all records constituting part of an IA investigation are exempt from disclosure under KRS 61.878(1)(i) and (j) except the initial complaint and final disposition. In 16-ORD-106, relying on our previous decision in 15-ORD-067, we rejected that argument, ruling as follows:
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 [composing] the subject investigations were ultimately adopted by the final decision maker and therefore forfeited their preliminary characterization.
We further held that where not all the participants in the investigation and review process agree as to discipline, "the opinions and recommendations pertaining to discipline that were not relied upon or adopted by the Commissioner . . . can be properly withheld. " Lastly, we stated:
[The] files also include records that are similar to "administrative records opening the file" or "statements of the law" (statutes and policies. . .), checklists, etc.[,] 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.
16-ORD-106 (citing 15-ORD-170).
Adopting the reasoning in 16-ORD-106 and 15-ORD-067 (copies attached), we find that KSP improperly limited disclosure of IA records to the initial complaint and final disposition in reliance on KRS 61.878(1)(i) and (j). Therefore, KSP violated the Open Records Act by withholding the remaining responsive records, with the exception of those opinions and recommendations not relied upon or adopted by the Commissioner. 2
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 proceeding.
Footnotes
Footnotes
1 Since it appears from the record that in each case IA forwarded the entire investigative file to the Commissioner as an attachment to the cover memorandum, we deem all such forwarded documents to be responsive to Mr. Rose's request.
2 As we noted in 18-ORD-010: "KSP may, of course, review the records 'for the purpose of identifying and redacting any information that implicates protected privacy interests' [under] KRS 61.878(1)(a). 04-ORD-162."
As we noted in 18-ORD-010: "KSP may, of course, review the records 'for the purpose of identifying and redacting any information that implicates protected privacy interests' [under] KRS 61.878(1)(a). 04-ORD-162."