NOT TO BE PUBLISHED
July 29, 1994
IN RE: Arthur Giles/Lexington-Fayette Urban
County Human Rights Commission
OPEN RECORDS DECISION
Mr. Arthur Giles challenges the actions of the Lexington-Fayette Urban County Human Rights Commission relative to his March 29, 1994, request to inspect and copy the case file pertaining to his complaint against Humana Hospital. On April 27, 1994, Mr. Giles received a letter from an individual identifying himself as Jesse J. Moton, Jr., Compliance Director, on stationery bearing no letterhead. Mr. Moton advised Mr. Giles that his "case" was "ready for . . . review . . . ." He requested that Mr. Giles "contact [his] office to let persons know when you will [sic] like to come in a [sic] review the file." Mr. Edward E. Dove, General Counsel for the Commission, indicates that the Commission did not respond until May 25, 1994. On that date, Mr. Giles was informed that he could review all nonexempt records, but that the Commission would withhold "investigators notes, investigation memorandum, and internal memorandum [sic] . . ." pursuant to KRS 61.878(1)(a), (g), (h), (j), and (k), various state and federal laws, and OAG 79-387.
On May 25, 1994, Mr. Giles obtained copies of the records in his file, excluding those identified above. He objects to the exclusion of these records, and the handling of his request generally, and asks that we review the Commission's actions. For the reasons set forth below, we conclude that the Commission's response, although procedurally deficient, was otherwise consistent with the Open Records Act.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Human Rights Commission violated the Open Records Act by failing to comply with the three-day deadline for agency response to a request for public records mandated by this provision. Regardless of when a case is concluded, the Commission is obligated to issue a response to such a request within three business days. We urge the Commission to review KRS 61.880(1) to insure that future responses conform to the Act.
KRS 61.878(1)(g) and (h), recodified in 1992 and hereinafter referred to as KRS 61.878(1)(h) and (i),1 permit an agency to withhold:
(h) Preliminary drafts, notes, corres- pondence with private individuals, other than correspondence 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[.]
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports
1KRS 61.878(1)(h) and (i) were again recodified in 1994, and now appear at KRS 61.878(1)(i) and (j).
and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
In our view, the question raised in this appeal can be likened to the question presented to the Kentucky Court of Appeals in City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982). In City of Louisville, the court was asked to determine whether the internal investigative files of the Louisville Police Department were exempt from public inspection under the exemptions for preliminary documents. The court answered in the affirmative, noting:
Internal affairs, as was stipulated, has no independent authority 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.
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. We believe that the cited authorities are dispositive of this appeal.
When a charge is filed with the Commission, it is assigned to an investigator who is responsible for collecting evidence and making recommendations relative to the charge in a final investigative report. That report may or may not be adopted by the Executive Director in his letter of determination. In the action before us, the documents which the Commission withheld consist of the investigator's notes and memoranda, as well as the investigative report. Like the Internal Affairs Division of the Louisville Police Department, the investigator for the Commission does not have authority to issue a binding decision, but acts as a fact finder.
Similarly, the documents which he generates in the course of his investigation remain preliminary unless they are adopted by the Executive Director as part of his final action.
In the present appeal, the Director did not adopt the investigator's notes or recommendations as part of his final action. Although he referred to the evidence presented in the report, he did not expressly incorporate those documents. Therefore, the investigator's notes, report, and other memoranda did not lose their internal, preliminary character, and were properly withheld by the Commission.
Because KRS 61.878(1)(h) and (i) authorize the nondisclosure of the requested documents, we decline to comment on the applicability of the other exceptions cited by the Commission. It is the opinion of this Office that the Commission afforded Mr. Giles access to all nonexempt public records contained in his case file, and that its actions were consistent with the Open Records Act.
Mr. Giles and the Lexington-Fayette Urban County Human Rights Commission may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. William D. Wharton
Human Rights Commission
162 East Main Street
Lexington, Kentucky 40507
Mr. Arthur Giles, III
340 Codell Drive, Apt. 4
Lexington, Kentucky 40509
Hon. Edward E. Dove
Security Trust Building
271 West Short Street
Lexington, Kentucky 40507