NOT TO BE PUBLISHED

95-ORD-86

June 5, 1995

In re: Alford T. Ford/Kentucky State Police

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Kentucky State Police's ("KSP") denial of Mr. Alford T. Ford's request for a copy of the KSP Internal Affairs Report regarding the shooting of Alford T. Ford, Jr.

In his request, Mr. Ford asked to inspect interview notes, recommendations, etc., in regard to the investigation and Internal Affairs Report.

Ms. Diane H. Smith, Official Custodian of Records, responding on behalf of KSP, denied Mr. Ford's request, stating:

Your request for the Internal Affairs Report is denied. The Internal Affairs Report is an internal report containing preliminary recommendations in which opinions are expressed and from which policies are formulated or recommended. As such this report is exempt from release pursuant to KRS 61.878(1)(j). The report was spawned by report 10-92-2909, a copy of which has been provided to you.

In addition to the above, Ms. Smith, in a follow-up letter to Mr. Ford concerning his open records request and subsequent to his letter of appeal, enclosed a copy of the initial complaint and final disposition of the investigation of the shooting of Alford T. Ford, Jr.

In further explanation of her denial of Mr. Ford's request, Ms. Smith stated:

The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(k) [now recodified as KRS 61.878(1)(l)] exempts records made confidential by separate statute. An internal affairs investigation contains inter-office memoranda and the opinions of investigators which are exempt from inspection under KRS 61.878(1)(i)[now recodified as KRS 61.878(1)(j)]. Therefore, your request for testimony and other contents of this internal affairs investigation is denied. We also rely on OAG 82-263 and OAG 83-39 and [OAG-]366.

For the reasons which follow, it is the decision of this office that the Kentucky State Police acted consistently with the Open Records Act in denying Mr. Ford's request to inspect the interview notes, recommendations, etc., in regard to the investigation and Internal Affairs Report.

In support of her denial, Ms. Smith cited KRS 61.878(1)(j), which authorizes the withholding of records containing "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."

In City of Louisville v. Courier-Journal, Ky.App., 637 S.W.2d 658 (1982), the Court of Appeals held that sections of the Open Records Act (now recodified as KRS 61.878(1)(i) and (j)), protect police internal affairs from public disclosure. The Court of Appeals said at page 660:

In summary, we hold that the investigative files of internal affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g)(h) [now recodified as KRS 61.878(1)(i)(j)]. This does not extend to complaints which initially spawned the investigation. The public upon request has a right to know what complaints have been made and the final action taken by the chief thereon.

In addition, this office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agencies' final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j).

In 94-ORD-135, this office stated:

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 the instant appeal, Mr. Ford has been provided with a copy of the initial complaint and final disposition of the investigation. The investigative files remain preliminary unless they are incorporated into and made part of the agency's final action.

Pursuant to KRS 61.880(2), this office requested the Kentucky State Police to supply additional documentation to support its denial. In response, Ms. Smith supplied this office with a copy of a letter from Ella Ford to the Internal Affairs Division, Kentucky State Police. This undated letter was received by the Internal Affairs Division on May 14, 1993. The KSP has indicated that this was the letter which spawned the internal affairs investigation. A copy of this letter was provided by KSP to Mr. Ford.

In addition, KSP supplied this office with a copy of the final disposition of the investigation. The final disposition report indicates that the "Final Determination" of the Internal Affairs Division was that the citizen complaint was unfounded and the "Recommended Action" was "no further action." The final disposition document is styled "Memorandum" and is signed by the Branch Commander and Division Director of the "Administrative Division Review" and the "Affected Division Review," respectively.

The final report of the KSP, which was given to Mr. Ford, contains no reference to and does not incorporate any internal preliminary recommendations, interview notes, interoffice memoranda, or opinions of investigators. Thus, the files of the Internal Affairs Division's investigation are exempt from disclosure under authority of KRS 61.878(1)(j) and the agency's denial to inspect the files was consistent with the Open Records Act.

Mr. Ford may challenge this decision 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/369

Distributed to:

Ms. Diane H. Smith

Official Custodian of the Records

Kentucky State Police

919 Versailles Road

Frankfort, KY 40601

Mr. Alford T. Ford

205 Keller Street

Cumberland, KY 40823