October 21, 1993







IN RE: Henry E. Hayden/Cabinet for Human Resources, Department

for Social Services






This appeal originated in a request for public records submitted by Mr. Henry E. Hayden to the Cabinet for Human Resources, Department for Social Services, on June 15, 1993. Mr. Hayden, an attorney representing Ms. Martha R. Payne, requested a copy of "the report compiled by Fred Atkinson on Ruth Reneer for the Cabinet for Human Resources." That report was prepared following an investigation by Mr. Atkins, a Family Services Program Specialist attached to the Department's Quality Assurance Branch, into a complaint filed by Ms. Payne, who is Ms. Reneer's daughter. Ms. Payne alleged that three employees of the Department engaged in professional improprieties while conducting an adult protective services investigation into her mother's condition. She asked that the Quality Assurance Branch review the case and the employee's performance.


Commissioner Peggy Wallace denied Mr. Hayden's request on June 25, 1993. Relying on KRS 61.878(1)(h) and (i), she maintained that the disputed record was preliminary in character, and therefore exempt from public inspection. In a followup letter to this Office, Commissioner Wallace explained that Mr. Atkinson's report "was a summary of the hearing process and preliminary to the final decision and subsequent letter to Ms. Payne, the complainant, by Mr. Jim McClure

[,Manager of the Quality Assurance Branch]." To facilitate our review of the Department's actions, Commissioner Wallace provided us with a copy of Ms. Payne's complaint, Mr. Atkinson's report, and Mr. McClure's letter to Ms. Payne,

notifying her of the Department's final action in the matter. Pursuant to KRS 61.880(2), those records were not disclosed to other parties, and have now been destroyed.


In his letter of appeal to this Office, Mr. Hayden expresses the view that many of Mr. Atkinson's findings must have been ignored "since no reference at all is made to much of the evidence that was submitted by Ms. Payne." Alternatively, he argues that Mr. Atkinson did not "make sufficient findings that would allow the decision of Mr. McClure to stand." It is his position that neither of the exceptions cited by the Department authorizes the nondisclosure of the record. He urges this Office to issue a decision consistent with this view.


The question presented in this appeal is whether the Department for Social Services properly relied on KRS 61.878(1)(h) and (i) in denying Mr. Hayden's request for the preliminary administrative review report prepared by Mr. Atkinson. For the reasons set forth below, and based on our earlier decision in 92-ORD-1365, we conclude that the Department failed to sustain its burden of proof relative to its invocation of KRS 61.878(1)(h) and (i).


In 92-ORD-1365 we dealt with a nearly identical issue involving the Department and an individual who requested an administrative review of a child abuse case. The same procedural mechanisms appear to govern the administrative review process in the present appeal. At page 4 and 5 of that decision, this Office opined:


KRS 61.878(1)(h) and (i) authorize the nondisclosure of:


(h) Preliminary drafts, notes, correspondence with private indi-

viduals, other than correspon-

dence which is intended to give notice of final action of a public agency;


(i) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]


This Office and Kentucky's courts have recognized that the internal investigative

files of a public agency are exempt from public inspection under these provisions unless they are adopted by the agency as part of its final action. For example, in City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982), the Kentucky Court of Appeals was asked to determine whether the investi-

gative files of the Louisville Police Depart-

ment were exempt from public inspection under the exceptions for preliminary docu-

ments. The court answered in the affirma-

tive, noting:


Internal affairs, as was stipu-

lated, has no independent author-

ity to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.


Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.


(Emphasis added.) City of Louisville, supra, at 659. See also Kentucky State Board of Medical Licensure v. Courier-

Journal, Ky.App., 663 S.W.2d 953 (1983); Courier-Journal & Louisville Times Co. v. The University of Kentucky, Ky., 830 S.W.2d 373 (1992); OAG 80-43; OAG 83-41; OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 89-69; OAG 91-23.


When a complaint is filed with the Quality Assurance Branch, it is assigned to

a quality assurance specialist, who is responsible for investigating the handling of the case "utilizing established policies and procedures and where appropriate recommend[ing] changes." The specialist conducts interviews, reviews records, and issues a preliminary report in which he or she determines whether policies and proce-

dures were followed and the quality of services provided to the client or com-

plainant. The Quality Assurance Branch Manager, in turn, reviews the preliminary report and prepares a final report contain-

ing a written summary of Findings and Recommendations for submission to the Commissioner. Presumably, the branch manager may or may not adopt the preliminary report.


Here, as in 92-ORD-1365, Mr. McClure acknowledges in his final report that his decision is based on a "careful review of the Findings of Fact presented to [him] by Fred Atkinson . . . ." The report recites, almost to the letter, Mr. Atkinson's report. Again, the Department fails to advance any arguments in support of its position that the report falls within the parameters of KRS 61.878(1)(h) and (i). As we noted in 92-ORD-1365, this Office has long recognized that the mere invocation of the exception, without an adequate explanation of how the exception applies, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882(3).


Based on our review of the preliminary administrative review report prepared by Ms. Atkinson and Mr. McClure's final report, and in light of our holding in 92-ORD-1365, we conclude that Mr. McClure adopted the Findings of Fact, Law and Policy Reference, and Conclusion contained in Mr. Atkinson's report. Although the Summary of Interviews and Summary of Documentation are omitted, the balance of the report is incorporated, virtually verbatim, into Mr. McClure's final report. We therefore conclude that the Department failed to sustain its burden of proof relative to the invocation of KRS 61.878(1)(h) and (i), and must release the preliminary administrative review report to Mr. Hayden immediately.


The Department may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882. Although the Attorney General should

be notified of any action in the circuit court, pursuant to KRS 61.880(3), he should not be named as a party in that action, or any subsequent proceedings.














Distributed to:


Commissioner Peggy Wallace

Department for Social Services

Cabinet for Human Resources

Post Office Box 213

Hartford, KY 42347


Hon. Henry E. Hayden

Attorneys At Law

119 E. Center Street

Hartford, KY 42347