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 Fern Creek Fire Protection District ("District") violated the Open Records Act in denying Dale Shewmaker's September 15, 2018, request (received on September 17, 2018) for a copy of "[a]ll formal complaints or charges brought against Chief Mike Schmidt that were made public during the Sept. 10th Board meeting[, all] correspondence between the Board of Trustees and Investigation Service contracted to examine issues related to Chief Mike Schmidt since January 1, 2018[, and m]inutes from full [B]oard meeting or committee as selected by Chairman meeting, where charges were heard." In a timely written response per KRS 61.880(1), Chairman Dan Bannon advised Mr. Shewmaker that, "No formal complaints or charges were made public during the September 10th Board meeting. Accordingly, there are no documents to produce responsive to his request." Citing Palmer v. Driggers, 60 S.W.3d 591, 600 (Ky. App. 2001), Chairman Bannon further indicated that "[e]ven if complaints or charges had been made public during this meeting, however, they would be exempt from disclosure pursuant to KRS 61.878(1)(i) and (j) as preliminary agency records[.]"
With regard to any responsive correspondence, Chairman Bannon stated that such "materials concern an ongoing investigation involving a public agency employee" and the District was therefore denying access pursuant to KRS 61.878(1)(i) and (j). He cited 16-ORD-231 and 17-ORD-108 in support of the District's position that "[r]ecords which are part of an ongoing investigation 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." In addition, the District stated that "[s]ome or all of the records requested, . . . are protected by the attorney-client privilege and work product doctrine, and cannot be disclosed pursuant to KRS 61.878(1)[(l)] and Kentucky Rule of Evidence 503; see Univ. of Louisville v. Hahn, 80 S.W.3d 771, 774-76 (Ky. App. 2001)." Because "no charges have been made public or otherwise heard," Chairman Bannon stated there were no existing documents responsive to Mr. Shewmaker's request for minutes from the Board or committee meeting where the charges were heard. 1
Upon receiving notification of Mr. Shewmaker's appeal from this office, attorney Jeffrey A. Calabrese, Stoll Keenon Ogden PLLC, responded on behalf of the District. Mr. Calabrese stated, consistent with KRS 75.130, the District "has preferred charges against its Fire Chief, Mike Schmidt, Jr. , and has scheduled a timely hearing before the full board of trustees. See KRS 75.130(3)." However, pursuant to KRS 75.130(1), "the District may not take final action until a hearing is conducted. Thus, while the administrative matter is pending before the board of trustees as provided under KRS 75.130, the charges and any other preliminary documents are non-final. "
Quoting from 99-ORD-164, 2 Mr. Calabrese explained, "[T]he pending disciplinary proceedings are also in a preliminary stage pending final action before the full board of trustees. Thus, the preferred charges are non-final and may be properly withheld from disclosure under KRS 61.878(1)(i) and (j)." He argued this also applied to "any purported initial complaints made by other District personnel involving the Fire Chief's conduct." This office finds that existing legal authority, including 18-ORD-194 (a recent decision involving a request for copies of the formal complaints filed against Chief Schmidt and the "official statement of charges)," validates the District's position regarding all existing documents responsive to Mr. Shewmaker's request.
"Despite its manifest intention to enact a disclosure statute, 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)]." 3 Beckham v. Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575, 577-578 (Ky. 1994); 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), the "preliminary exceptions," in a variety of contexts. See City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983)(recognizing that records "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 under subsections [(i)] and [(j)] of the Act"); Univ. of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992); Palmer v. Driggers, above . See 16-ORD-167.
The Kentucky Court of Appeals reaffirmed this controlling line of authority in University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013), recognizing that "piecemeal disclosure along the path of the decision making process is not mandatory" and the subject discussions were "preliminary to resolution of the ultimate issue." See 02-ORD-18 (witness transcripts and investigative summaries fall within KRS 61.878(1)(i) and (j), "unless adopted . . . as the basis of final action" as the Attorney General is "not prepared to read into [the case law] , a distinction between records within the investigative file that the Court of Appeals did not make in [ City of Louisville ]"); 14-ORD-024. Applying the foregoing line of authority to the facts presented here, this office finds the District's position persuasive, as the unrefuted evidence confirms that no final disciplinary action has been taken.
In considering the question of access to public records pertaining to public employee misconduct and unfounded accusations of misconduct in different contexts, the courts and this office have consistently recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know." OAG 88-25, p. 3. See Palmer v. Driggers, above ; 95-ORD-47 (rejecting the argument that KRS 161.790 permits a public agency to withhold a complaint lodged against a teacher and the final action of the tribunal notwithstanding teacher's right to a private hearing on contract termination) . Compare 99-ORD-164 (school district had not taken final action and the "termination letters and all documents related to disciplinary action" maintained their preliminary status until such time as final action was taken); 15-ORD-112; 16-ORD-238. However, this line of authority makes it equally clear that "disclosure of records pertaining to allegations of public employee misconduct or discipline is contingent on the finality of any investigation and, if applicable, resulting disciplinary proceedings; the review or investigation remains ongoing in this case and that fact is dispositive." 4 16-ORD-231, p. 5; 18-ORD-194.
The instant appeal presents no basis to depart from 18-ORD-194 (In re: Anthony Schmidt/Fern Creek Fire Protection District, rendered October 10, 2018). By letter dated September 11, 2018, Anthony Schmidt requested copies of "both formal complaints filed by Major Todd Newman and Captain Joe Elstone against Fire Chief Mike Schmidt Jr." and "the official statement of charges." On September 13, 2018, the District advised Mr. Schmidt that no formal complaint filed by Major Todd Newman existed. However, the District otherwise denied the request on the bases of KRS 61.878(1)(h) and (i), as well as 61.878(3). Following the governing case law cited above, in addition to 99-ORD-164 and 16-ORD-231, this office affirmed the District's response. Here, as in 18-ORD-194, this office finds no meaningful distinction "between teacher disciplinary proceedings and a disciplinary proceeding under KRS 75.130," and therefore concludes the District did not violate the Act in denying Mr. Shewmaker's request for the complaints or charges against Chief Schmidt and the related correspondence.
In denying the existence of any responsive minutes, the District explained that no formal complaints or charges were made public during its meeting on September 10. The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only 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. In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), however, public agencies must explain the nonexistence of the records if appropriate. See 01-ORD-38; 12-ORD-231; 15-ORD-210. This office has recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record [such as KRS 61.835 ] creates a presumption of the record's existence, but this presumption is rebuttable." 5 11-ORD-074, p. 2 (agency failed to rebut the presumption); 12-ORD-195. The agency can overcome this presumption by explaining why the record does not exist. Id. In Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), the Court approved this position, 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. " See 12-ORD-195; 12-ORD-221.
Given the mandate of KRS 61.835 ( see n. 1), the District was required to promptly record minutes of the meeting it held on September 10 and the minutes "shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." However, in light of counsel's explanation for the reason that no responsive minutes exist, namely that no meeting has been held where formal complaints or charges against Chief Schmidt were made public, including the September 10 meeting, this office has no basis upon which to find the District violated the Open Records Act in denying access to nonexistent minutes. See 17-ORD-190. The denial is affirmed.
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 KRS 61.835 is entitled, "Minutes to be recorded -- Open to public." Pursuant to KRS 61.835, the minutes of action taken at every meeting of a public agency (under KRS 61.870(1)), "setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." (Emphasis added). If, at the meeting in question, "nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to inspection ." 05-OMD-188, p. 4, citing 95-OMD-64, p. 4 (emphasis added); 05-ORD-209.
2 Until final action has been taken on the charges, the [charges] and all documents related to the disciplinary action maintain their preliminary status, and may be properly withheld from disclosure under KRS 61.878(1)(i) and (j)." 99-ORD-164, p. 4.
3 Among the public records that may be excluded from public inspection in the absence of a court order are documents 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.
4 Relying upon City of Louisville , in 95-ORD-47, this office held that a school board was required to provide the requester with a copy of the written charges and those documents reflecting final disposition of tribunal hearings conducted under KRS 161.790 relative to a contract termination because the tribunal's decision was final. See also 07-ORD-241; 10-ORD-046.
5 Compare Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005) recognizing that a requester is not entitled to a hearing on his claim that certain records actually exist, in the absence of "a prima facie showing that such records do exist."