93-ORD-109

October 1, 1993

IN RE: Alice Stansel/Kentucky Transportation Cabinet

OPEN RECORDS DECISION

This appeal originated in a request for records submitted by Ms. Alice Stansel to the Transportation Cabinet on July 30, 1993. Ms. Stansel, an accountant attached to the Cabinet's Division of Service & Supply, requested access to the report prepared by Ms. Anna L. Patterson, Executive Staff Advisor for the Office of Minority Affairs following a request from Commissioner Mark Suter for an investigation of various allegations, including allegations of sexual harassment, made by Division employees. On behalf of the Transportation Cabinet, Commissioner Suter responded to Ms. Stansel's request on July 30, advising her that "the appropriate office is researching their files and anything not protected by law will be made available . . . ." On September 1, Commissioner Suter denied Ms. Stansel's request, relying on KRS 61.878(1)(a), (g), and (h) of the Open Records Law. He cited OAG 85-135 in support of his argument that "records in an investigative file consisting of interviews with a person's co-workers where those co-workers express their personal opinions on a variety of matters . . . is properly excluded from public inspection."

Pursuant to KRS 61.880(2), this Office requested additional information from the Cabinet to substantiate its position. We also asked that the Cabinet provide us with a copy of the disputed record. On September 13, Commissioner Suter responded to our request. He explained the sensitive nature of the report, particularly those portions dealing with allegations of sexual harassment. He indicated that it would be impossible to state when final action on the problems dealt with in the report would be taken. Continuing, he observed:

At this point, my office has been meeting with the division's management and others who will be helpful in implementing the training and conflict resolution procedures suggested in the report. As you can see, resolution of this situation will be methodical and will require a substantial amount of time.

To facilitate our review of the Cabinet's actions, Commissioner Suter attached a copy of the investigative report which is the subject of this dispute.

We have examined the report which is styled "Investigative Findings" and "Conclusions." It is a five page document identifying by name the employees who were interviewed and the nature of their allegations relative to sexual harassment. In addition, it contains a discussion of a number of other problems in the Division which were identified by the employees. The report contains a brief analysis of the factors contributing to these problems and proposes a number of solutions and remedial measures which might be implemented. The copy of the report which was provided to this Office pursuant to KRS 61.880(2) was not disclosed to other parties, and has been destroyed.

This question presented in this appeal is whether the Transportation Cabinet properly denied Ms. Stansel's request pursuant to KRS 61.878(1)(a), (g), and (h). For the reasons set forth below, we conclude that although its response was procedurally deficient, the Cabinet properly denied Ms. Stansel's request.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.

Nothing in the statute permits an agency to postpone or delay its written response pending review by the "appropriate office." In our view, a statement that "the appropriate office is researching their files and anything not protected by law will be made available" does not satisfy the agency's obligation, particularly where a single document is

requested and it is readily accessible. The burden on the public agency to respond in three business days may, on occasion, be an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the record, or the record is in active use, in storage, or not available, the agency is required to notify the requester of its decision within three business days.

Turning to the substantive issue raised in this appeal, we find that the Cabinet properly denied Ms. Stansel's request. KRS 61.878(1)(i) exempts from the mandatory disclosure provisions of the Open Records Act:

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

Ms. Patterson's report contains impressions gained after interviewing various employees of the Division of Service and Supply, offers opinions as to their allegations and complaints, and makes recommendations as to how the Division's problems can be resolved. "While the opinions expressed are derived from interviews . . . they are only the opinions of one investigator and are clearly preliminary and directed toward the formulation of policy." OAG 76-692, at p. 2. See also, OAG 78-378, OAG 80-43; OAG 81-285.

Moreover, Ms. Patterson has no authority to take final agency action relative to the Division's problems. She is an investigator whose function is to collect information and make recommendations. Her report is a textbook example of a preliminary memorandum in which opinions are expressed or policies formulated or recommended. It can be likened to the Internal Affairs report which was the subject of the Kentucky Court of Appeals decision in City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982). At page 659 of that opinion, the court observed:

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 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.

Because Ms. Patterson has no authority to take final action in this matter, and resolution of these conflicts is in the hands of the Commissioner and the Division's management, Ms. Patterson's report must be characterized as a preliminary memorandum. OAG 82-339; OAG 82-431; OAG 84-298; OAG 86-19; OAG 86-22; OAG 86-46; OAG 86-58; OAG 86-64; OAG 87-23; OAG 89-24; OAG 90-16; OAG 90-58. Accordingly, we conclude that the Transportation Cabinet properly denied Ms. Stansel's request.

Ms. Stansel and the Cabinet may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General shall be notified of any actions filed against the Transportation Cabinet pursuant to KRS 61.880(3), the Attorney General shall not be named as a party to these actions or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

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Distributed to:

Hon. Mark H. Suter, Commissioner

Department of Administrative Services

Transportation Cabinet

State Office Building

Frankfort, KY 40601

Ms. Alice Stansel, Accountant

KyTC Div. Service & Supply

1230 Wilkinson Blvd.

Frankfort, KY 40622