June 30, 1997

In re: John J. Bleidt/Department of Corrections

Open Records Decision

This matter comes to the Attorney General on appeal from the Department of Corrections's denial of the open records request of John J. Bleidt, Esq., to inspect "all notes, taped conversations/interviews and documents" regarding an investigation conducted by the Department as it relates to his client, Ms. Debbie Flach.

Citing KRS 61.878(1)(h) (i) and (j), Ms. Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, denied Mr. Bleidt's request, explaining:

KRS 61.878(1)(h) excludes from disclosure records compiled in the process of detecting and investigating statutory or regulatory violations. These records may be open after enforcement action has been taken or a decision has been made to forgo any action. The records may contain preliminary drafts and/or correspondence which would be exempt under KRS 61.878(1)(i). KRS 61.878(1)(j) precludes the release of any preliminary recommendations and memoranda. At the present time, the investigation is ongoing; therefore, any and all records generated during the course of said investigation are exempt from disclosure.

In his letter of appeal, Mr. Bleidt asks this office to determine whether the denial of his request for the Department's investigative records relating to his client was consistent with the Open Records Act.

On April 22, 1997, we sent a "Notification of Receipt of Open Records Appeal" to the Department of Corrections and enclosed a copy of Mr. Bleidt's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Biggs, on behalf of the Department, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs stated, in relevant part:

It is the Department's position that Ms. Flach is not entitled to all records, documents and information obtained in the course of the investigation. Ms. Flach was not the subject of said investigation. She and all other staff working out of the Louisville office were questioned. If an employee is the target of an investigation, he or she would be entitled to review the investigative record once said investigation was closed. However, if an employee is not the subject of an investigation, some of the exceptions delineated in KRS 61.878 would preclude release of all documentation, except for the complaint and final report. Portions of the complaint may be redacted as well, if the name of the complainant would not otherwise be known. If the investigation involved institutional staff, the Department may have to consider, on a case by case basis, whether the security of the institution, staff and/or inmates would be affected to preclude disclosure under 197.025. While KRS 61.884 permits a person access to any public record relating to him or in which he is mentioned, this "right" is subject to the exceptions of KRS 61.878. During the course of any investigation, individuals are going to give unsolicited comments and/or advice regarding other employees. Individuals will interject their opinion and even offer their recommendation as to the "proper" course of action for dealing with a particular person or circumstance. Such would be precluded from disclosure by KRS 61.878(1)(j).

Pursuant to KRS 61.880(2) and 40 KAR 1:030, Section 3, the undersigned requested additional information from the Department as to the nature and status of the investigation in which the requested records were related.

To facilitate this office's review, the Department furnished us with a copy of the investigative report in question. The contents were not disclosed to other parties, and have since been returned to the Department. KRS 61.880(2)(c); 40 KAR 1:030 Section 3.

Although we cannot reveal the contents of the report, we can generally describe the report as a part of the Department's ongoing internal administrative action of allegations made by a probation and parole officer in a letter to a circuit court judge about certain drug testing services provided by a private vendor and various related conduct of employees of the Department's Division of Probation and Parole in Louisville. The investigative report was prepared by Mr. Larry D. Ball, Kentucky Justice Cabinet, and forwarded to Mr. Doug Sapp, Commissioner, Department of Corrections, for his consideration.

For the reasons which follow, we conclude that the Department's denial of Mr. Bleidt's request was proper and consistent with provisions of the Open Records Act.

KRS 61.878(1)(h) authorizes the nondisclosure of:

Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.

This office has consistently recognized that an agency involved in an administrative adjudication is not required to disgorge documents relating to its investigation or enforcement action until the action has been concluded. 93-ORD-69.

However, such documents must be made available for inspection at the conclusion of the administrative action unless they are exempted by other provisions of the Open Records Act. KRS 61.878(1)(h).

In the instant action, Ms. Biggs indicates that the Department's internal administrative investigation is still ongoing. The Department has informed Mr. Bleidt that the records may be made available for his inspection after the action is either concluded or a decision is made to forgo any action. She did advise him that certain of the investigative documents in which recommendations or opinions were expressed may be exempt under KRS 61.878(1)(i) and (j), as preliminary documents, to the extent they were not incorporated into or made a part of the Cabinet's final decision or action regarding the matter under investigation.

Since the administrative action is still ongoing, we conclude that the Cabinet properly denied Mr. Bleidt's request for "all notes, taped conversations/interviews and documents" regarding the investigation under KRS 61.878(1)(h).

In addition, among the public records which may be excluded from public inspection are those set forth in KRS 61.878(1)(i) and (j):

(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.

This office has consistently concluded that intraoffice and interagency records are exempt from public inspection, particularly where the documents are preliminary (not evidence of final agency action) and contain opinions of the writers. 95-ORD-54; 93-ORD-125; OAG 90-66; OAG 86-5; OAG 85-104.

In OAG 78-626, at p. 2, this Office recognized:

Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(g) [now (i) ]. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.

In considering the underlying purpose of these exemptions, this office has previously observed:

One of the purposes of KRS 61.878(1) [ (i) and (j) ] appears to us to be to allow the free flow of discussion among governmental officials which is preliminary to the final decision. Consequently recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.

OAG 88-85, at p. 4.

We believe that this view is consistent with the rule announced by the Kentucky Supreme Court in University of Kentucky v Courier-Journal, Ky., 830 S.W.2d 373 (1992). In that case, the Court held that documents that were once preliminary in nature lose their exempt status only if they are adopted by the public agency as part of its final action. See also, Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982).

Having examined the investigative report which gave rise to this appeal, we concur with Ms. Biggs's description and characterization of the records withheld and conclude they were properly withheld from disclosure, pursuant to KRS 61.878(1)(i) and (j), as preliminary recommendations, intra-agency and inter-agency notes, and handwritten notes, none of which indicate they were intended to give notice of final agency action.

The investigative report has been forwarded to the Commissioner of the Department of Corrections for his consideration. At this point it remains a preliminary internal document setting forth opinions, observations, and recommendations of the author of the report, along with interviews of employees and other documents. Until final agency action has been taken, the report is exempt from disclosure under KRS 61.878(h), (i), and (j), and properly withheld by the Department. If the report or any other preliminary documents are incorporated into or made a part of the final agency action, they would be open for inspection, "unless exempted by other provisions of KRS 61.870 to 61.884." KRS 61.878(1)(h).

Finally, we note, the concluding sentence in KRS 61.878(3) provides:

A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.

However, once the administrative action is completed, a public agency employee, under authority of KRS 61.878(3), would be entitled to inspect and to copy any record including preliminary and other supporting documentation that relates to him or her.

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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

John J. Bleidt

Bleidt & Casper

105 South Sherrin Avenue

Louisville KY 40207

Tamela Biggs

Staff Attorney

Department of Corrections

State Office Building

Frankfort KY 40601