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 denying WDRB News Reporter Travis Ragdale's January 15, 2019, request for "access to and a copy of the following complete 'response to resistance' investigations: RR-15-029, RR-16-031, RR-16-051, RR-17-001, RR-18-008 and any response to resistance paperwork filed by troopers Jimmy Halcomb, Rob Farley and Det. Kevin Miller relating to an incident at Harlan Appalachian Regional Hospital in June 2016." Citing prior decisions by this office, including 01-ORD-123, 04-ORD-162, and 10-ORD-075, Mr. Ragsdale stated that such investigations are subject to disclosure under the Act. However, in a timely written response per KRS 61.880(1), Official Custodian of Records Stephanie A. Dawson denied Mr. Ragsdale's request entirely.
In denying the request, Ms. Dawson stated:
Response to Resistance investigations are for administrative purposes only, are not disciplinary in nature, and contain statements and express opinions of the involved people. When being interviewed, officers and other witnesses are told that the interview is for the purpose of administrative investigation only and that answers given will only be used accordingly. Statements provided by officers and other witnesses related to a response to resistance investigation are preliminary in nature, and as such are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j), which state that preliminary records expressing opinions shall remain exempt from disclosure through the Open Records Act. Further, KRS 61.878(1)(i) and (j) allow 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.
In accordance with governing case law and prior decisions by the Office of the Attorney General construing KRS 61.878(1)(i) and (j) in a similar context, specifically 15-ORD-067 1 (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, the record on appeal validates only the withholding by KSP of the opinions and recommendations pertaining to discipline imposed (or the decision that no action was necessary) that were not relied upon by the final decision maker. 2 Accordingly, KSP violated the Open Records Act in withholding all of the investigations and related paperwork in their entirety.
In his January 30, 2019, letter of appeal, Mr. Ragsdale reiterated WDRB's position that "response to resistance" investigations, more commonly known as "use of force" incidents, 3 are subject to disclosure. Citing 10-ORD-075, Mr. Ragland noted that whether "any disciplinary action was taken concerning the troopers involved is moot." He asserted, "If [KSP] at any point adopted the report (and decided to discipline the trooper or not), it forfeits its preliminary nature. In addition, in at least the case of trooper Farley, he indeed was disciplined for his actions so the investigations, by definition, would be 'disciplinary in nature.'" Arguing that KSP used the same "boilerplate language" in the subject denial that has previously been deemed to violate the Act, Mr. Ragland emphasized this office has consistently recognized that KSP improperly relied upon KRS 61.878(1)(i) and (j) to deny access to such investigations. In responding to Mr. Ragland's appeal on behalf of KSP, Staff Attorney Cody Weber first reiterated the original basis for its denial, verbatim. He further noted that KSP is "currently in litigation (Kentucky Court of Appeals No 2017-CA-750, the ongoing challenge to 16-ORD-106) regarding records being exempt from disclosure pursuant to KRS 61.878(1)(i) and (j) as it relates to release of entire Internal Affairs investigative files." Here, as on several prior occasions, 4 KSP has declined to disclose the requested investigations until No. 2017-CA-750 has concluded and the Court orders KSP to release any such records.
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);
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"); 5
University of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992);
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, 6 and more recently in 17-ORD-184, 18-ORD-001, 18-ORD-010, 18-ORD-115, 18-ORD-022, and 18-ORD-128, 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 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; 18-ORD-131. 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." 7 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 equally controlling here.
Given the lack of information provided regarding the contents of the specific records withheld from disclosure in this case, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, the Attorney General requested that KSP provide this office with unredacted copies of the records withheld for in camera review. Mr. Weber promptly complied, providing a DVD containing all of the subject investigations. 8 KRS 61.880(2)(c) and 40 KAR 1:030 Section 3 preclude the Attorney General from disclosing the contents of those records. However, our in camera review of the records withheld confirms that in RR-18-008, RR-17-001, and RR-16-051, IA determined that each trooper's response was reasonable and necessary, or "Justified." The KSP Commissioner, i.e., the final decision maker, reviewed the investigation (memoranda, interviews, pictures, audio recordings, etc.), and the recommendations and conclusions of IA, before concurring with its findings. Accordingly, the records comprising each of those investigations "were ultimately adopted by the final decision maker and therefore forfeited their preliminary characterization. " 9 18-ORD-001, p. 7; 18-ORD-177. 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; 18-ORD-001.
RR-16-031 is different from the aforementioned RR investigations only insofar as the original investigator was a potential witness and, upon further consideration, the command staff decided that IA should perform a review of the investigation to ensure it was thorough and objective. The status of the matter is unclear. Notwithstanding any procedural ambiguity in the record, however, the "Comments during Review" form indicates the Commissioner agreed, in part, with some recommendations and disagreed, in part, with other recommendations. Consistent with our analysis of KRS 61.878(1)(i) and (j) above, this office finds that KSP was entitled to withhold those portions of the investigative file that did not form the basis of his determination, but violated the Act in denying access to it entirely. See KRS 61.878(4).
Insofar as the IA Commander, and ultimately the Commissioner, implicitly deemed some limited portions of the witness interviews to be inconsistent or not credible in the referenced investigations, 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). See 18-ORD-115 (following 15-ORD-067 and 16-ORD-106); 18-ORD-001; 18-ORD-010; 18-ORD-128. As in prior cases, including 15-ORD-067 and 18-ORD-115, this office finds that such "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 . . . Thus, any such responsive documents were also improperly withheld. " 16-ORD-106, pp. 5-6 (citing 15-ORD-067). With regard to any RR "paperwork" filed by the named troopers in relation to a June 2016 incident at HARA, KSP provided this office with a copy of IA-17-003, which included audio/video recordings, photographs, witness interviews, etc. Again, this office is prohibited from disclosing the contents of the records in detail. See KRS 61.880(2)(c) and 40 KAR 1:030 Section 3. However, the foregoing analysis of KRS 61.878(1)(i) and (j) applies with equal force and this office finds that KSP violated the Act by withholding, in their entirety, records that its Commissioner relied upon or adopted, in whole or in part, as the basis for the final action, i.e. , discipline imposed as well as those administrative records ("Routing Sheets," etc.), checklists, etc. that do not qualify as preliminary.
KSP issued a case number in RR-15-029, but subsequently determined that a Response to Resistance investigation was unwarranted. A one-page memorandum directed to IA by the Sergeant assigned to review the matter is the only existing responsive document; he filed the memorandum in lieu of a Response to Resistance investigation. "The decision that no action was necessary constituted the agency's final action [.]" 15-ORD-067, p. 6. See
Palmer v. Driggers, 60 S.W.3d 591, 597 (Ky. App. 2001)(adopting the reasoning of 00-ORD-107 in holding "the fact that the agency decided to take no further action on the complaint or that the investigation was preempted by [the employee's] resignation, in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint"). Accordingly, the memorandum forfeited its preliminary character insofar as KSP adopted the findings contained therein as the basis for the determination that no further action was necessary.
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 In 15-ORD-067, this office held that a police department violated the Act in denying access to preliminary documents relating to Internal Affairs ("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."
2 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.
3 In 97-ORD-168, KSP asserted that a "Use of Force" internal inquiry was different from an Internal Affairs investigation. However, KSP explained that an investigation is conducted consisting of taking witness statements, review of evidence, etc. Once the investigation is complete, a report is prepared detailing the investigation and including the investigator's opinions and recommendations. This report, along with any other accompanying documents such as witness statements or other evidentiary items, is forwarded, through the chain of command, to the Commissioner for his review. Upon the Commissioner's direction, a document is then prepared by the Commander of Internal Affairs stating whether the final determination is that the use of force was justified or unjustified. Id. , pp. 6-7 (Emphasis added); 04-ORD-162. The subject RR investigations appear to essentially follow this protocol as well. In 10-ORD-075, this office noted, "Our understanding is that KSP no longer refers to inquiries by the term 'Use of Force,' and the record is unclear as to whether a Response to Resistance inquiry is the equivalent; however, the latter type of inquiry appears to share this distinction regarding how the process begins. As in 97-ORD-168, it appears that 'the occurrence triggers the inquiry,' and so ' the report itself represents the initiating document .'" 10-ORD-075, p. 9, n. 3 (emphasis added).
In 01-ORD-83, this office rejected the agency's position that an IA investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, reasoning that "courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." Id. , p. 14. The fundamental challenge KSP makes here and in court, stems from our longstanding interpretation of KRS 61.878(1)(i) and (j); the relevant legal analysis remains the same regardless of any distinctions that may exist among KSP internal procedures.
4 See 17-ORD-243 (no provision of the 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; 18-ORD-001. 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.'" 18-ORD-001, p. 5.
5 Significantly, in 02-ORD-018 this office held that witness statements and investigative summaries fell within the parameters of KRS 61.878(1)(i) and (j). The Attorney General observed that "proper standard for determining when a record within an investigative forfeits its preliminary character is found at page 659 of City of Louisville ," supra , wherein the Court held that if the Chief (or final decision maker) adopts the notes or recommendations that comprise the "Internal Affairs" report(s) "as part of his final action, clearly the preliminary characterization is lost to that extent." 02-ORD-018, pp. 5-6. See 10-ORD-046; (adopting 02-ORD-018); 12-ORD-055.
6 In 16-ORD-106, this office held that KSP violated the Open Records Act in denying access to all records contained in two IA investigative files, except for the initiating complaints and the final actions by the agency, on the bases of KRS 61.878(1)(i) and (j), "as the records forfeited their preliminary characterization to the extent adopted by the final decision maker." It is well-established that "a complaint, initiating or charging document, or any other document that spawns an investigation must be made available for public inspection at the conclusion of the investigation and upon the imposition of final agency action, including the decision to take no action." 05-ORD-005, p. 9 (citations omitted). See City of Louisville, supra, at 659 ("complaints are not per se exempt from public inspection once final action is taken" but "[i]nasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as part of those final determinations"). Regardless of any difference in semantics, KSP is required to disclose the initiating document or equivalent thereof, i.e. , Response to Resistance Report, in this context as in any other. See n. 3, above.
7 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; 16-ORD-106.
8 A number of the files were inaccessible by this office due to software compatibility issues or because the files were corrupted. Although our in camera review was inhibited, our analysis of the fundamental issue presented was not.
9 Certain attachments included as part of the investigations, for example, CAD (Computer-Aided Dispatch) reports, etc. do not fall within the parameters of either statutory exception and must be disclosed unless KSP demonstrates with adequate specificity that KRS 61.878(1)(h) or 17.150(2) applies.