NOT TO BE PUBLISHED

96-ORD-134

June 11, 1996

In re: James Malone/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. James Malone's open records request for agency records concerning allegations of sexual discrimination of Regina Moss by her KSP superiors and a copy of any complaints that alleged sexual or employment discrimination directed against Ms. Moss and the results of any investigations into the allegations.

Ms. Diane H. Smith, Official Custodian of Records, KSP, denied Mr. Malone's request, stating:

A search of the records reveals no complaint filed by Regina Moss. Further review revealed that an internal investigation was conducted based on oral information from another employee. There is no initial complaint in this investigation and I have enclosed a copy of the final disposition.

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)(j) exempts records made confidential by separate statute. KRS 61.878(1)(l) exempts preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. This applies to an internal affairs investigation because the investigation contains these types of documents. In OAG 83-366, the Attorney General has opined these documents need not be released.

We are asked to determine if the response of the Kentucky State Police to Mr. Malone's request was consistent with the Open Records Act. For the reasons which follow, we conclude that its response was in accord with and consistent with provisions of the Act.

In upholding a similar agency denial involving a verbal allegation of misconduct by a state police officer, this Office, in OAG 86-78, p. 4, held as follows:

While, normally, the complaint which spawned the investigation and the report setting forth the final action taken by the public agency relative to the investigation are public records, in this particular situation an oral allegation rather than a written complaint initiated the investigation and there is no final written report or decision of the public agency pertaining to the investigation.

In this instance, the KSP states there was no initial complaint which initiated the internal investigation. The KSP indicates the internal investigation was conducted based upon oral information from another employee. Thus, the requested document did not exist. An agency cannot afford access to a record that does not exist. 95-ORD-96. Accordingly, we conclude that the KSP's response to the request for the initiating complaint was consistent with the Open Records Act.

As to other agency records regarding the internal affairs investigation, Mr. Malone was provided a copy of the final disposition of the investigation. The final report contains no reference to and does not incorporate any internal preliminary recommendations, interview notes or complaints, interoffice memoranda, or opinions of investigators.

In support of her denial of access to other records, Ms. Smith cited KRS 61.878(1)(l) as authority for withholding of records containing “[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.” This is a miscite. The correct cite should be KRS 61.878(1)(j), which relates to preliminary matters as quoted in her response.

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.

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 agency's 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. Malone was provided with a copy of the final disposition of the investigation. As noted above, there was no written initiating complaint. The investigative files remain preliminary unless they are incorporated into and made part of the agency's final action and are exempt from disclosure under authority of KRS 61.878(1)(j). Thus, we conclude that the KSP's denial of the request to inspect records in its investigative file was consistent with the Open Records Act. 95-ORD-86.

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

JMR/602

Distributed to:

James Malone

Staff Writer

The Courier-Journal

525 West Broadway

P. O. Box 740031

Louisville, Kentucky 40201-7431

Diane Smith

Official Custodian of Records

Kentucky State Police

919 Versailles Road

Frankfort, Kentucky 40601