April 17, 1996

In re: Terry L. Keys/Lexington-Fayette Urban County Human Rights Commission


This matter comes to the Attorney General on appeal from the Lexington-Fayette Urban County Human Rights Commission's partial denial of Mr. Terry L. Keys's open records request to inspect the Commission's records in the case of Terry L. Keys vs. Joseph-Beth Booksellers.

Mr. William D. Wharton, Executive Director, on behalf of the Commission, advised Mr. Keys that his 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, G. Phillips and K. Cobb

2. Investigative Memo - 2 pages - by G. Phillips

3. Final Investigative Report - 6 pages - G. Phillips

4. Investigator Notes - 38 pages - by S. Hughes, J. Moton, and G. Phillips

Mr. Wharton denied access to these under authority of KRS 61.878(1)(a), (2)(g)(h)(j)(k); KRS 344.200(4); KRS 344.250(6); OAG 79-387, 42 U.S.C. 2000e, 29 CFR 1610.17, and Section 83 of the EEOC Compliance Manual. Subsequent to receipt of Mr. Keys's letter of appeal and as is authorized by KRS 61.880(2) and 40 KAR 1:030 Section 2, the Commission supplied this office with additional documentation and further advised that the records were also withheld under authority of KRS 61.878(1)(i) and (j).

This office is asked to determine whether the Commission properly denied Mr. Keys access to these records. 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 recommenda- tions. They have been interpreted by this office to authorize the nondisclosure of preliminary reports and memoranda containing the opinions, observations, and memoranda of personnel within an agency. 94-ORD-92; 94-ORD-135. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.

The question raised in this appeal is similar 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); 94-ORD-135. 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 appeal before us, the documents which the Commission withheld consist of an investigative log, investigative memo, investigator notes and a final investigative report. The investigator for the Commission does not have the authority to issue a binding decision, but acts as a fact finder. The documents which the investigator generates in the course of an investigation remain preliminary and may be withheld from disclosure unless they are adopted by the Executive Director as part of his final action. 94-ORD-92.

KRS 61.880(2) and 40 KAR 1:030, Section 3, authorize this office to request additional documentation from the agency against which the open records complaint is made. 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. At our request, a copy of the Commission's Determination was forwarded to this office for review and has since been destroyed.

A review of the Determination indicates that the Executive Director did not expressly adopt either the investigative log or memo, the investigator's notes or the final investigative report as part of his final action. Although he referred to the evidence presented in the investigation, he did not expressly incorporate or adopt those documents as part of the final agency action. Therefore, the above referenced documents did not lose their internal, preliminary character and could be properly withheld by the Commission as preliminary documents under KRS 61.878(1)(i) and (j). 94-ORD-135.

Since KRS 61.878(1)(i) and (j) authorize the nondisclosure of the documents addressed above and are dispositive of this appeal, 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 and Section 83 of the E.E.O.C. Compliance Manual and other provisions of the Open Records Act cited by the Commission in its response.

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 proceeding.






Distributed to:

Terry L. Keys, President

Opinions Incorporated

1055 Dove Run Road, Suite 216

Lexington, Kentucky 40502

William D. Wharton

Executive Director

Lexington-Fayette Urban County

Human Rights Commission

162 East Main Street, Suite 226

Lexington, Kentucky 40507-1318