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 Louisville Metro Police Department ("LMPD") violated the Open Records Act in the disposition of Louisville Public Media Reporter Ryan Van Velzer's April 12, 2018, request for "access to the . . . Personnel files for Officer Brian Smith including but not limited to disciplinary records, complaints, investigations and reprimands." On April 18, 2018, Mr. Van Velzer stated, LMPD provided a response indicating the agency would release the "opening and closing letters" for the Professional Standards Unit ("PSU") investigations relating to Officer Smith. However, LMPD declined to provide "predecisional and investigatory records," invoking KRS 61.878(1)(i) and (j) and citing prior decisions of this office. By e-mail dated April 20, 2018, Mr. Van Velzer submitted a new request asking for "[a]ll Special Investigations Division records associated with" Officer Smith. Alicia Smiley, Public Information Officer, first noted in her April 20, 2018, response, that LMPD had provided Mr. Van Velzer with "opening and closing letters" for the PSU investigations involving Officer Smith. According to Ms. Smiley, "KRS 61.878(1)(i) and (j) both allow for the nondisclosure of the entire PSU case file as these documents express opinions and are preliminary in nature." Ms. Smiley relied upon prior decisions of this office from 1993-2003, and cited City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982). She further stated that LMPD "did not locate any Public Integrity Unit ["PIU"] investigations involving" Officer Smith.
Noting the finality of both PSU investigations, Mr. Van Velzer asked Ms. Smiley to explain why LMPD was not releasing the same level of detailed information with regard to Officer Smith's PSU cases that LMPD made publicly available on its Transparency webpage with regard to certain "redacted Special Investigations Division records." Ms. Smiley stated, "Only the Chief of Police issues a final determination with regards to a PSU investigation and that is the Chief's closing letter which is why he says it is 'my final action. ...' Anything outside of a final action is preliminary." She further explained that cases to which Mr. Van Velzer was referring, that can be accessed on the agency's website, "are PIU cases. I previously advised you that [Officer] Smith only has PSU cases and no PIU cases." Mr. Van Velzer subsequently forwarded a copy of 15-ORD-067 to Ms. Smiley in support of his position. LMPD confirmed receipt of the referenced ORD, but maintained its position that by releasing the "final documents for PSU investigations involving" Officer Smith it had discharged its obligations per the Act. In accordance with existing case law and prior decisions by the Office of the Attorney General construing KRS 61.878(1)(i) and (j), specifically 15-ORD-067, this office disagrees.
Upon receiving notification of Mr. Van Velzer's appeal from this office, Annale E. Renneker, Assistant Jefferson County Attorney, responded on behalf of LMPD. 1 Ms. Renneker acknowledged the Court in City of Louisville v. Courier-Journal recognized "that to the extent the Chief of Police adopts Internal Affairs ['] notes or recommendations as part of his final action, the preliminary characterization is lost." LMPD maintained that PSU is the equivalent to IA in that case and its holding therefore applies here. LMPD reiterated the Chief has the ultimate authority to impose discipline (a fact nobody disputes). "This means that while PSU may conduct an investigation," LMPD asserted, "the Chief decides whether an employee's actions have violated policy." 2
LMPD further stated that then-Chief Robert White issued the "final action letter" of May 28, 2009, for PSU Case # 09-013. The letter states, "the Sustained finding of Conduct Unbecoming was the result and final action of Chief White's investigation." Chief White is no longer an LMPD employee. Accordingly, "LMPD is unable to confirm whether he relied on the notes or recommendations of the PSU investigation. However, his letter does state the Sustained finding was a result of his investigation rather than PSU's investigation; this indicates he did not rely on any notes or recommendations of PSU." Chief Steve Conrad issued the "final action letter of January 26, 2018, for PSU Case # 16-271; the letter states, "the Sustained finding of Conduct Unbecoming (Social Networking) was the result and final action of Chief Conrad's investigation into the matter." LMPD asserted "this indicates that Chief Conrad did not rely on any notes or recommendations of PSU when making his final decision. " Enclosed with Ms. Renneker's May 8, 2018, appeal response was the affidavit of Chief Conrad, "in which he explains that following a meeting with [Officer Smith]," during which Officer Smith admitted to making the Facebook posts, Chief Conrad determined that Officer Smith's conduct violated LMPD Standard Operating Procedure 5.1.3 and found the alleged violation of Conduct Unbecoming (Social Networking) Sustained. 3
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j) in a variety of contexts, but little has changed regarding the relevant analysis. 4 See City of Louisville, 637 S.W.2d 658; Ky. State Bd. of Med. Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983)(records defined at subsections (i) and (j) "which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records . . ." but unless those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded"); Univ. of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992)("investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"); Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6 (Ky. App. 1995); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); Univ. of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013)(holding that certain e-mails fell within KRS 61.878(1)(i) and (j), and retained their preliminary character as the subject meeting did not conclusively resolve the ultimate issue and "piecemeal disclosure along the path of the decision making process is not mandatory"); 99-ORD-220; 02-ORD-86; 07-ORD-156; 10-ORD-034; 11-ORD-052; 12-ORD-055; 15-ORD-189.
Given the limited information provided regarding the specific records withheld under KRS 61.878(1)(i) and (j), this office asked LMPD to provide us with a hard copy of each PSU file in dispute for the purpose of in camera review. See KRS 61.880(2)(c) and 40 KAR 1:030 Section 3. LMPD promptly complied.
Our in camera review of PSU # 16-271 confirmed that LMPD properly withheld most of the records in the file. Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, this office is not permitted to reveal the content of the relevant documentation. However, it verifies Chief Conrad's account of the events that preceded his final disposition of the case, i.e. , Officer Smith's 30-day suspension. Following a meeting with Officer Smith and his attorney on January 19, 2018, by letter dated January 26, 2018, Chief Conrad notified Officer Smith of the "result" and "final action in regard to my subsequent investigation into this matter." Notwithstanding any similarities between the findings ultimately made by the Chief and those of PSU, Chief Conrad maintained that he based the decision to suspend Officer Smith on the admission that he made during their meeting. This office has previously held that when a public agency's "final decision mirrors [preliminary] findings and recommendations, albeit in abbreviated form, it must logically be inferred that they were adopted as the basis of that decision, particularly where there is no persuasive proof in the record to overcome this inference." 01-ORD-123, p. 6; 10-ORD-034. Here, as in 10-ORD-034, there is persuasive proof in the record as to PSU # 16-271. Id. , p. 11. "Therefore, even though the final decision is in accord with the recommendation of the Professional Standards Unit, and reaches that conclusion for the same reason, we believe Chief [Conrad's] affidavit sufficiently shows that his final action finding the complaint [Sustained] did not 'necessarily stem' from the investigative record[.]" Id.
In contrast, LMPD offered no proof to substantiate its position that Chief White based his final action (SOP 5.1.3-Conduct Unbecoming-Sustained) regarding the discipline imposed in PSU # 09-013 exclusively on his investigation. LMPD did not elaborate regarding what his investigation consisted of and did not provide any evidence that Chief White independently questioned Officer Smith, etc. Rather, the record on appeal does not contain the affidavit of Chief White ( compare 10-ORD-034) because he is no longer employed at LMPD. Accordingly, LMPD is "unable to confirm whether he relied on the notes or recommendations of the PSU investigation." This office is not permitted to reveal the content of the file relating to PSU # 09-013. However, our in camera review of the investigative file did not locate any source of relevant information that Chief White could have relied upon independent of the PSU investigation or, at a minimum, the statement given by Officer Smith. Even assuming Chief White relied exclusively on the statement Officer Smith gave, his final action was, to that extent, based on the statement. Unlike PSU # 16-271, the record in PSU # 09-013 lacks any "persuasive proof" that Chief White's final decision, which is also "in accord with the recommendation of [PSU] and reaches that conclusion for the same reason," did not stem from the investigative record. 5 10-ORD-034, p. 11.
The Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69. A record "is adopted as the basis of final action insofar as the final action 'necessarily stem [s] from' that document." 10-ORD-034, p. 11 (quoting City of Louisville, 637 S.W.2d at 660). "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. 16-ORD-256, p. 4. "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, p. 14 (citing City of Louisville, above ). 6 Like that of the Hopkinsville Police Department in 15-ORD-067, LMPD's argument "'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. '" 15-ORD-067, p. 3 (citing 11-ORD-052). "In other words, 'the fact that none of the [records] were expressly incorporated into the final report does not end the inquiry.' [Citation omitted.]. 'When the decision mirrors those findings and recommendations . . . it must logically be inferred that they were adopted as the basis of that decision . . . .'" 15-ORD-067, p. 3 (citing 14-ORD-181); 16-ORD-106; 17-ORD-156.
In 15-ORD-067, this office rejected the fundamental position set forth by LMPD here. The Attorney General determined 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 (adopting the reasoning of 15-ORD-067). The analysis contained at pages 3-7 of 15-ORD-067 is equally controlling here; a copy of that decision is enclosed. See 97-ORD-168, pp. 5-6 (citing 93-ORD-103); compare 01-ORD-47; 01-ORD-83. "[A]n internal affairs report cannot be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. " 97-ORD-168, p. 6; 15-ORD-067. Moreover, "[s]uch records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports." Id. The purpose for which KRS 61.878(1)(i) and (j) were enacted, "namely to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken." Id. , p. 6.
Applying the analysis found in 15-ORD-067, this office also notes that both files include records that are similar to "administrative records opening the file" or "statements of the law" (SOPs, black-and-white photographs of the officer, "Agreement and Release," etc.), checklists, etc. deemed nonexempt in 15-ORD-170 (applying 15-ORD-067). These records "cannot be properly characterized as drafts, notes, or recommendations, nor do they contain any opinions or recommendations even if characterized as memoranda." 7 16-ORD-106, pp. 5-6. LMPD improperly withheld these records.
LMPD has the burden of justifying its denial under KRS 61.880(1) and 61.880(2)(c). Whether it was the admissions made by Officer Smith, or the actual text messages (review in camera ), or both, any records that Chief White relied upon forfeited their preliminary status. Inclusion of what is boilerplate or generic prefatory language in Chief White's "final letter," standing alone, is not sufficiently persuasive. See 16-ORD-106.
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 Ms. Renneker initially explained the difference between PIU investigations ("monitors and conducts criminal investigations of Louisville Metro Government employees, including all officer-involved shootings and in-custody deaths") and PSU investigations ("conducts internal and administrative investigations of department policy violations by department members"). She further stated, "The two redacted LMPD PIU investigation reports on its Transparency page were posted for the public due to the nature of the investigations; the reports were from high-profile officer-involved shooting investigations."
2 This fact is neither disputed nor dispositive.
3 Chief Conrad attested that he "received, through collateral litigation, copies of Facebook postings allegedly made by Office Brian Smith." Following the PSU investigation that he initiated, Chief Conrad met with Officer Smith and his attorney. Chief Conrad further attested that, "As a result of Officer Brian Smith's admission regarding the subject Facebook postings, I determine a thirty day suspension to be the appropriate discipline."
4 Among the public records that may be excluded from public inspection in the absence of a court order authorizing inspection are those identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
5 The "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 12-ORD-211.
6 All of the decisions upon which LMPD initially relied, except for one, predated 01-ORD-83 but nevertheless required agency disclosure of investigative records "incorporated" (and in some cases if "adopted") into the final action.
7 In 11-ORD-108, at pages 10-11, this office reasoned:
A "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002).<<7> 97-ORD-183, p. 4. A "note," on the other hand, is defined as a "brief record, esp. one written down to aid the memory." Id. at 951; 97-ORD-183, p. 4. In the alternative, a "note" is "created as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting." Id. (citations omitted). No credible argument can be made that a photograph is a "draft" or "note" according to the "common and approved uses" of those terms; likewise, a photograph(s) is clearly not "correspondence with private individuals." KRS 61.878(1)(j) is equally inapplicable given that a photograph cannot be properly characterized as a "recommendation" or "memoranda." Accordingly, "disclosure [of the record(s) in dispute] is not contingent upon the occurrence of final agency action." 99-ORD-220; 06-ORD-135. ?