NOT TO BE PUBLISHED 

94-ORD-135

November 21, 1994

IN RE: Ron L. Walker/Lexington-Fayette Urban County

Government Human Rights Commission

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Mr. Ron L. Walker, an attorney representing Mr. Vinson King, to the Lexington-Fayette Urban County Government Human Rights Commission on July 27, 1994. Mr. Walker requested access to "the results of the [Commission's] investigation" into Mr. King's claim of racial discrimination. On behalf of the Commission, Mr. William D. Wharton, Executive Director, partially denied Mr. Walker's request, advising him that the following records would not be disclosed:

Witness Statement - 9 pages - by witness;

Investigative Inquiry - 2 pages - by Jesse J. Moton;

Statistical Documents - 5 pages - Department of Education.

In addition to KRS 61.878(1)(a), (g), (h), (i), (j), and (k), now codified and hereinafter referred to as KRS 61.878(1)(a), (h), (i), (j), (k), and (l), Mr. Wharton relied on various state and federal laws in partially denying Mr. Walker's request.

We are asked to determine if the Lexington Fayette Urban County Government Human Rights Commission properly relied on KRS 61.878(1)(a), (h), (i), (k), and (l) in partially denying Mr. Walker's request. For the reasons set forth below, 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 thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.

In our view, the question raised in this appeal can be likened 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); OAG 80-43; OAG 83-41; OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 89-69; OAG 91-23. 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 the investigator's log, notes, inquiry, and final investigative memorandum. In addition, the Commission withheld an interoffice memorandum, witness statement, and statistical documents. Like the Internal Affairs Division of the Louisville Police Department, the investigator for the Commission does not have authority to issue a binding decision, but acts as a fact finder. Similarly, 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.

In the present appeal, the Director did not adopt the investigator's notes or recommendations as part of his final

action. Although he referred to the evidence presented in the report, he did not expressly incorporate those documents. Therefore, the investigator's logs, notes, report, and other memoranda did not lose their internal, preliminary character, and were properly withheld by the Commission.

This office has also recognized that witness statements are exempt from public inspection pursuant to KRS 61.878(1)(i) and (j). OAG 84-249; OAG 84-298; OAG 85-95; OAG 85-135; and OAG 86-19. Thus, in OAG 85-95, at p. 3, we observed:

[A] statement is a preliminary record in the internal investigative files of the police department and excluded, from those records subject to public inspection, by KRS 61.878(1)[(i)] and [(j)] unless it is incorporated into any notice of final action by the police department.

See also, City of Louisville v. The Courier-Journal and Louisville Times Co., supra. The Commission therefore properly denied this portion of the request.

With respect to Mr. Walker's request for "statistical documents" obtained by the Commission in the course of its investigation, we find that the Commission's actions were consistent with the Open Records Act. Subsection (2) of KRS 61.878 provides:

No exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person.

This provision has been interpreted by the Attorney General in two opinions. In OAG 83-371, we held that the Jefferson County Board of Education was obligated to release class and grade statistical data prepared by the Jefferson County School District and that such records are open to public inspection as long as the data is not descriptive of any readily identifiable person.

Similarly, in OAG 87-71, we held that although the confidentiality provisions relative to adoption proceedings prohibit the release of the names of persons appearing in adoption records, the Open Records Act requires the disclosure

of statistical data which is not descriptive of any readily identifiable person. In that opinion, we required the public agency to furnish the requester with relevant statistical data.

These opinions suggest that a public agency which maintains statistics on a given subject must release those statistics upon receipt of an open records request, as long as the data is "not descriptive of any readily identifiable person." We have examined the statistical documents obtained by the Human Rights Commission in the course of its investigation, and find that they clearly identify individuals who have been dismissed by school districts since 1985, and the reasons for their dismissals. Thus, the records are clearly descriptive of readily identifiable persons, and not subject to disclosure pursuant to KRS 61.878(2). We therefore find that the Commission properly withheld these records.

Because KRS 61.878(1)(i) and (j) authorize the nondisclosure of the investigative file compiled by the Commission, we do not address the applicability of KRS 344.200(4) and 344.250(6), as well as 29 CFR 1610.17, 42 U.S.C. 2000e, and Section 83 of the EEOC Compliance Manual, except to note that these provision, which apply to proceedings before the state Human Rights Commission and the federal Equal Employment Opportunity Commission, do not appear to prohibit disclosure of records compiled in an investigation to the complainant or his representative. In a series of opinions, this office recognized that these nondisclosure provisions are intended to insure that "those directly involved in the conciliation process can fully and in good faith participate therein, uninhibited by any threat that their statements and actions will be released to anyone not otherwise privy thereto." OAG 84-376, p. 4 (modified on other grounds, OAG 88-55), see also OAG 85-5 (modified on other grounds OAG 88-55). This series of opinions dealt with requests from third parties, i.e., persons "not otherwise privy" to the conciliation

process. Mr. Walker, as the legal representative of Vinson King, is "directly involved in the . . . process . . . ." Thus, we see no reason why these provisions should operate as a bar to his inspection of the file. Nevertheless, and as noted, KRS 61.878(1)(i) and (j) authorize the Commission to withhold the disputed records, and we therefore conclude that its actions were consistent with the Open Records Act.

Mr. Walker and the Lexington Fayette Urban County Human Rights Commission may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any

action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/1044

Distributed to:

William D. Wharton

Executive Director

Lexington Fayette Urban County

Human Rights Commission

162 East Main Street, Suite 226

Lexington, KY 40507-1318

Hon. Ron L. Walker

Brooks & Fitzpatrick

183 North Upper Street

Lexington, KY 40507

Hon. Edward E. Dove

Security Trust Building

Suite 200

271 West Short Street

Lexington, KY 40507