Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,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 Derrick Rose's request for records concerning KSP Trooper Anthony Harrison. For the reasons that follow, we find KSP violated the Act.
By letter dated February 28, 2018, Mr. Derrick Rose (Appellant), WHAS 11 News, requested inspection of:
Completed investigative file of the Kentucky State Police internal investigation of Kentucky State Police Trooper Anthony Harrison, including but not limited to any and all transcripts, documents, records, audio and video recording from the KSP internal investigation which also include any records used to make an adopt a final determination of the investigation.
On March 8, 2018, KSP issued its response to Appellant. Included in the response were a "Request for IA Investigation," and two memorandums from two investigations of Trooper Anthony Harrison. The memorandums were from the Commander, Internal Affairs Branch, to the Commissioner, KSP, regarding investigation IA-17-015, which included a final determination of "Substantiated, " and "Use of Force, Ten (10) day suspension without pay, with five (5) days probated; " and another memorandum from the Commander, Internal Affairs Branch, to the Commissioner, regarding investigation IA-17-034, which included a final determination of "Substantiated, " and "Conduct Unbecoming, Four (4) day suspension without pay, with no days probated + Five (5) days to serve that were probated from IA-17-015." The response also stated:
Enclosed please find these records. Certain information (DOB, SSN, address, phone numbers, etc.) contained in this report has been redacted pursuant to KRS 61.878(1)(a), as disclosure would constitute an unwarranted invasion of personal privacy. . . . Please be advised, 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. Keeping preliminary documents exempt from disclosure protects the integrity of the investigations by allowing investigators to freely express opinions without fear of retaliation. Open Records decisions 93-0RD-026; 94-ORD-135, 95-ORD-086; 98-ORD-106; 99-ORD-055, 01-ORD-182; 03-ORD-051 all affirm denial of documents except for the initial complaint and final disposition. See also The City of Louisville v. The Courier Journal, 637 S.W.2d 658 (Ky. App. 1982). 1
Appellant filed an appeal with this office on April 25, 2018, arguing that he believed the records were no longer preliminary and that the records should be released. In a response to the appeal dated May 1, 2018, KSP Staff Attorney Cody Weber reiterated the position that KSP had taken in its initial response and further stated:
. . . [T]he Kentucky State Police is currently in litigation regarding the Kentucky State Police's release of entire Internal Affairs investigative files. That case is currently on appeal with the Kentucky Court of Appeals (No. 2017-CA-750). The subject of that appeal involving the release of entire Internal Affairs investigative files is the same subject of this current appeal pertaining to Trooper Anthony Harrison. As such, the Kentucky State Police will not be releasing the entire Internal Affairs investigative files until litigation has concluded and is ordered to do so.
KSP again relied on KRS 61.878(1)(i) and (j) for withholding the release of the entire Internal Affairs records. KSP's position is that those statutes allow for the nondisclosure of the "entire 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 investigators to freely express opinions without fear of retaliation. "
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 with that request.
When viewed in light of 15-ORD-067, 2 and later decisions finding KSP's withholding of IA investigative files and recommendations were in violation of the Open Records Act (18-ORD-001, 18-ORD-010, and 18-ORD-022), and the authorities upon which those decisions were premised, the record on appeal validates only KSP's withholding of the opinions and recommendations pertaining to discipline imposed that were not relied upon by the final decision maker, i.e. , the Commissioner.
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 Med. 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"); Univ. 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); Univ. 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, 3 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 dating back to 2001, the Attorney General determined in 15-ORD-067 that the Hopkinsville Police Department 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 again followed here.
Our in camera review of the records withheld confirms that in the two cases at issue involving Trooper Harrison, IA-17-015, and IA-17-034, the final decision maker, i.e. , the KSP Commissioner, agreed with the "final determination" by the Internal Affairs Branch, that the allegations which prompted the investigation were "substantiated. " The Internal Affairs Branch 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 both instances 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. 4 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. To the extent that recommendations for punishment from lower command levels, the Legal Services Branch, and the Deputy Commissioner, were not adopted by the Commissioner as the final determination, and the Commissioner therefore did not rely upon those recommendations, those recommendations retain their preliminary character and may be withheld under KRS 61.878(1)(i) and (j).
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.
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