July 25, 1995

In re: Doreen Canton/Lexington-Fayette Urban County Government Human Rights Commission


This matter comes to the Attorney General on appeal from the Lexington-Fayette Urban County Government Human Rights Commission's response to Ms. Doreen Canton's open records request.

On February 14, 1995, Ms. Canton, an attorney, filed an open records request, on behalf of The Gap, Inc., for the Commission's records in the case of Anjonette Wuest v. The Gap, Inc., HRC #09-92-0205; and EEOC #24H-92-0176.

On April 12, 1995, Mr. William D. Wharton, on behalf of the Commission, partially denied Ms. Canton's request by advising that her request was granted except for the following records which were removed from the case record and would not be disclosed:

1. Investigative Log - 1 page - by J. Moton

2. Attorney's Notes - 1 page - by E. Dove

3. Correspondence from Charging Party - 2 pages

4. Correspondence to Charging Party - 4 pages - by J. Moton

5. Final Investigative Report - 8 pages - by J. Moton

6. Interoffice Memorandum - 1 pages - by J. Moton

7. Investigative Notes - 9 pages - by J. Moton

8. Correspondence to witnesses - 2 pages - by J. Moton

9. Memorandum to file - 1 pages - by W. Wharton

10. Witness Statements - 7 pages

In addition to KRS 61.878(1)(a), (h), (i), (j) and (k), Mr. Wharton relied upon various other state and federal laws in partially denying Ms. Canton's request. (Note: Subsequent to Ms. Canton's letter of appeal, the Commission supplied additional documentation and, among other things to be referred to later, indicated that it had erroneously miscited the applicable statute, KRS 61.878(1), as KRS 61.878(2)).

This office is asked to determine if the Commission properly relied upon KRS 61.878(1)(a), (h), (i), (j) and (k) in partially denying Ms. Canton's request. For the reasons which follow, we conclude that the Commission's actions were consistent with the Open Records Act.

KRS 61.878(1)(i) and (j), permit an agency to withhold:

(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;

(j) 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 been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. 94-ORD-92. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.

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 appeal before us, the documents which the Commission withheld consist of the investigative log, notes, and final investigative report. In addition, the Commission withheld its attorney's notes, correspondence from and to the charging party, an interoffice memorandum, correspondence to witnesses, witness statements, and a memorandum to file. The investigator for the Commission does not have authority to issue a binding decision, but acts as a fact finder. 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. 94-ORD-92.

To determine the status of the case which involves the records that are the subject matter of this appeal, the undersigned contacted Mr. Ed Dove, attorney for the Commission. Mr. Dove stated that the Commission had issued a Determination as to the merits of the subject charge and the matter was currently in the conciliation process. A copy of the Commission's Determination was forwarded to this office. KRS 61.880(2)(b) and 40 KAR 1:030, Section 3, authorize this office to request additional documentation from the agency against which the complaint is made.

In the instant appeal, a review of the Determination indicates that the Executive Director did not expressly adopt the investigator's notes or recommendations as part of his final action. Although he referred to the evidence presented in the investigation, he did not expressly incorporate those documents. Therefore, the investigator's log, notes and final report were properly withheld by the Commission. 94-ORD-135.

Of like effect are the other documents withheld. Although the Director may have gathered evidence from the documents withheld, he neither quoted from nor expressly incorporated them in his Determination. Thus, the Commission properly denied inspection of those documents.

Moreover, this office has recognized that witness statements are preliminary records and are exempt from inspection under KRS 61.878(1)(i) and (j) unless they are incorporated into the final action of the agency. 94-ORD-135; OAG 85-95. No witness statements were expressly incorporated into the Determination. In OAG 88-25, we held that records which are the work product of an attorney in the course of advising a client are not discoverable under the Kentucky Rules of Civil Procedure and are exempt from public disclosure under KRS 447.154 and KRS 61.878(1)(l). See OAG 88-25. Thus, for these additional reasons, the Commission properly denied inspection of witness statements and attorney's notes.

Since KRS 61.878(1)(i) and (j) authorize nondisclosure of the investigative file and documents addressed above, we do not address the applicability of KRS 344.200(4) and KRS 344.250(6), as well as 42 U.S.C. 2000(e) and 29 C.F.E. 1610.17 Section 83 of the E.E.O.C. Compliance Manual.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.






Distributed to:

William D. Wharton

Executive Director

Lexington-Fayette Urban County

Human Rights Commission

162 East Main Street, Suite 226

Lexington, KY 40507-1318

Doreen Canton

Taft, Stettinius & Hollister

1800 Star Bank Center

425 Walnut Street

Cincinnati, OH 45202-3957