NOT TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

94-ORD-20

 

February 25, 1994

 

 

 

 

 

 

IN RE: Jon L. Fleischaker/City of Louisville

 

 

OPEN RECORDS DECISION

 

 

This appeal originated in a request for public records submitted by Mr. Gardiner Harris, a staff writer for the Courier-Journal, to the Louisville Division of Police on November 9, 1993. Mr. Harris requested access to all "complaints--formal and informal, written and telephoned--filed between August 1990 and July 1993." In a letter dated November 17, 1993, Mr. Paul V. Guagliardo, Assistant Director of Law, responded to Mr. Harris's request, advising him:

 

  • With regard to 'informal' or 'telephoned' complaints, we must deny your request under KRS 61.878(1)(h) and (i). Such communications from private individuals are considered 'correspondence with private individuals not intended to give notice of final action [sic].' In some instances, informal complaints might be the result of preliminary, interoffice communications or opinions of other city employees.

    • Although Mr. Guagliardo released the "formal, written complaints," he denied Mr. Harris's request for "'informal' or 'telephoned'" complaints.

     

    On behalf of his clients, the Courier-Journal and Louisville Times Company and Mr. Harris, Mr. Jon L. Fleischaker initiated this appeal with the Attorney General pursuant to KRS 61.880(2). Mr. Fleischaker argues that the City's reliance on KRS 61.878(1)(h) and (i) is misplaced. Specifically, he

    asserts that informal or telephoned complaints cannot properly be characterized as "correspondence with private individuals" inasmuch the term "correspondence" is defined as "communication by letters . . . ." Webster's Ninth New Collegiate Dictionary 293 (1991). Informal or telephoned complaints are not, in his view, letters, nor are the police records in which those complaints are reduced to writing.

     

    Citing City of Louisville v. Courier-Journal, Ky.App., 637 S.W.2d 658 (1983) and Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983), Mr. Fleischaker maintains that none of the exceptions to the Open Records Act authorize a public agency to withhold complaints which spawn final action by the agency. He observes:

     

  • [T]he fact that the Police Department may or may not take any formal disciplinary action in response to a particular complaint does not exempt agency records reflecting the complaint from public inspection. No action is final action.

    • Mr. Fleischaker urges this Office to issue a decision consistent with these views.

     

    On December 8, 1993, Mr. Guagliardo responded to these arguments. In his response, he described the procedures which govern receipt of telephone calls from citizens:

     

  • A citizen may call and wish to report, for example, that a police officer was rude or that he observed a police car speeding. The Internal Affairs officer will make a handwritten note of the telephone call. He/she will advise the caller that if the caller wishes the police department to begin an investigation into alleged misconduct by the officer, the caller will be required to sign a formal complaint per KRS 15.520. In most instances, the callers say something to the effect 'I don't want to file a complaint,' or 'I just thought someone should know.' Or, the caller may indicate he/she wishes to think about it. In some cases, after thinking about it, the caller decides to proceed and a formal complaint is

    filed. (Mr. Harris, the Courier-Journal reporter, will, of course, have access to those complaints.)

    The Internal Affairs detective completes a form with his notes of the telephone conversation. The forms are kept in a file in the event a formal complaint is filed or the caller later claims that he told the police but that the police department took no action. A copy of the form is forwarded to the Deputy Chief for his review. He may forward the note to the officer's captain with recommendations. If the Deputy Chief concludes that the allegations of misconduct are serious, he may direct Internal Affairs to conduct an investigation to independently substantiate the oral allegations per KRS 15.520(a)(3). The Deputy Chief's directive is considered a complaint subject to disclosure and, upon completion of the investigation (KRS 61.878(1)(g)), such directives are routinely provided pursuant to Open Records requests--including the many requests the Courier-Journal has made over the years.

    • However, Mr. Guagliardo observes, neither the telephone calls nor the Internal Affairs detective's notes about the call generate disciplinary action. Indeed, he notes, there is no requirement that the Department maintain records of these calls.

     

    Although he acknowledges that Mr. Fleischaker may be correct in arguing that the telephone calls cannot be characterized as "correspondence," Mr. Guagliardo asserts that they are not "complaints" as defined in KRS 15.520, or as defined by the courts. He relies on the same line of authority cited by Mr. Fleischaker, but argues that the cases support his view. Mr. Guagliardo reasons:

     

  • The telephone calls at issue here spawned no investigations. There was no final action to take because there was no evidence to act upon.

    • He characterizes the disputed records as "intra-office memoranda from one police department employee to another (or to the file) in which oral (via telephone) allegations by a citizen against a police department employee are reported."

     

    The question presented in this open records appeal is whether the City of Louisville properly relied on KRS 61.878(1)(h) and (i) in denying Mr. Harris's request. For the reasons set forth below, we conclude that the City improperly denied the request.

     

    KRS 61.878(1)(h) and (i) authorize a public agency to withhold:

     

  • (h) Preliminary drafts, notes, correspondence 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[.]

    •

    • In City of Louisville v. Courier-Journal, supra, the Kentucky Court of Appeals firmly established that complaints against public officers and employees are not exempt from inspection after final action is taken, or the decision is made to take no action, under either of these exceptions. Since whatever final actions are taken stem from the initial complaints, they are deemed incorporated as part of those final determinations. At page 660 of its opinion, the Court observed:

     

  • In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)[(h)] and [(i)]. This does not extend to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon.

    • This Office has itself rendered numerous opinions on this issue. See, e.g., OAG 81-127; OAG 81-291; OAG 83-41; OAG 84-315; OAG 85-126; OAG 85-136; OAG 89-13; OAG 89-73; OAG

    89-74; OAG 91-33; OAG 91-49; OAG 91-62; OAG 91-81; OAG 91-90; OAG 91-91; OAG 92-34.

     

    In a subsequent decision, the Court of Appeals echoed this position in a case more directly on point. In Kentucky State Board of Medical Licensure v. Courier-Journal, supra at 956, the Court stated:

     

  • It is beyond contention that complaints which 'initially spawned' any investigation . . . [of a public official or employee] may not be excluded [from the operation of the Open Records Act] because the public 'has a right to know what complaints have been made.' [City of Louisville, supra at 660].

    • The Court rejected the public agency's attempt to categorize complaints as formal statutory complaints and private individual complaints, declaring that these characterizations have "no bearing on whether such complaints must be released." Board of Medical Licensure, supra at 956. The Court reasoned:

     

  • Inasmuch as final actions stem from the complaints, they must be incorporated as part of the final determination and are therefore not exempt under KRS 61.878(1)[(h)] or [(i)].

    • It is this same dichotomy which the City asks this Office to recognize.

     

    Mr. Guagliardo maintains that while these citizen telephone calls probably cannot be excluded as "correspondence with private individual," neither can they be treated at formal complaints within the meaning of KRS 15.520. He argues that neither the calls, nor the detectives' notes about the calls, generate disciplinary action. We do not agree.

     

    Mr. Guagliardo acknowledges that the intake form on which the detective makes his or her notes is forwarded to the Deputy Chief for review. The Deputy Chief has at least two options: He may forward the form to the officer's captain with

    recommendations, or, if the allegations of misconduct are serious, he may direct Internal Affairs to conduct a full blown investigation to substantiate the oral allegations. Presumably, he may also treat the form as a frivolous complaint, and return it to the central file. Regardless of which option he elects, the determination he makes stems from the citizen's call. Absent the call, there would be no action. The City's attempt to categorize complaints as formal statutory complaints and informal telephone complaints is analogous to the Board of Medical Licensure's attempt to categorize complaints, and no more legally sound.

     

    We have examined a copy of the intake form used by the Louisville Division of Police Internal Affairs Unit. On it, the detective records the caller's name, sex, date of birth, address, telephone number (both home and work) and Social Security number. The detective indicates when the call was received and by whom, the incident location, including the identity of the employee against whom the complaint is lodged, and details of the incident. The intake form contains a check off section indicating whether the complaint procedure was explained and whether the caller indicated that he or she intends to file a formal complaint. The reviewer's signature appears in the final section, along with the date of review, and the nature of the followup recommended.

     

    It is clear that the form either spawns further investigation or is deemed sufficient on its face, requiring no further investigation. In the latter case, the form may (again presumably) be filed away as frivolous, or forwarded to the officer's superior with recommendations. Under any of these circumstances, it must be characterized as a complaint to which the public should be afforded access. Pursuant to KRS 61.878(4), the City may of course redact any excepted material from the intake forms, and make the nonexcepted material available.

     

    The City of Louisville may challenge this decision by initiating action in the appropriate circuit court. 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.

     

    CHRIS GORMAN

    ATTORNEY GENERAL

     

     

     

    AMYE B. MAJORS

    ASSISTANT ATTORNEY GENERAL

     

     

    jgh/1691

     

     

    Distributed to:

     

    Hon. Paul V. Guagliardo

    Assistant Director of Law

    City of Louisville

    Department of Law

    Room 200, City Hall

    Louisville, KY 40202-2771

     

    Hon. Jon L. Fleischaker

    Attorneys At Law

    Wyatt, Tarrant & Combs

    Citizens Plaza

    Louisville, KY 40202