NOT TO BE PUBLISHED
97-ORD-107
June 30, 1997
In re: John J. Bleidt/Department of Corrections
Open Records Decision
This matter comes to the Attorney General on appeal from the
Department of Corrections's denial of the open records request of
John J. Bleidt, Esq., to inspect "all notes, taped
conversations/interviews and documents" regarding an
investigation conducted by the Department as it relates to his
client, Ms. Debbie Flach.
Citing KRS 61.878(1)(h) (i) and (j), Ms. Tamela Biggs, Staff
Attorney, Office of General Counsel, Department of Corrections,
denied Mr. Bleidt's request, explaining:
KRS 61.878(1)(h) excludes from disclosure records compiled in
the process of detecting and investigating statutory or
regulatory violations. These records may be open after
enforcement action has been taken or a decision has been made to
forgo any action. The records may contain preliminary drafts
and/or correspondence which would be exempt under KRS
61.878(1)(i). KRS 61.878(1)(j) precludes the release of any
preliminary recommendations and memoranda. At the present time,
the investigation is ongoing; therefore, any and all records
generated during the course of said investigation are exempt from
disclosure.
In his letter of appeal, Mr. Bleidt asks this office to
determine whether the denial of his request for the Department's
investigative records relating to his client was consistent with
the Open Records Act.
On April 22, 1997, we sent a "Notification of Receipt of
Open Records Appeal" to the Department of Corrections and
enclosed a copy of Mr. Bleidt's letter of appeal. As authorized
by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Biggs, on
behalf of the Department, provided this office with a response to
the issues raised in the appeal. In her response, Ms. Biggs
stated, in relevant part:
It is the Department's position that Ms. Flach is not entitled
to all records, documents and information obtained in the course
of the investigation. Ms. Flach was not the subject of said
investigation. She and all other staff working out of the
Louisville office were questioned. If an employee is the target
of an investigation, he or she would be entitled to review the
investigative record once said investigation was closed. However,
if an employee is not the subject of an investigation, some of
the exceptions delineated in KRS 61.878 would preclude release of
all documentation, except for the complaint and final report.
Portions of the complaint may be redacted as well, if the name of
the complainant would not otherwise be known. If the
investigation involved institutional staff, the Department may
have to consider, on a case by case basis, whether the security
of the institution, staff and/or inmates would be affected to
preclude disclosure under 197.025. While KRS 61.884 permits a
person access to any public record relating to him or in which he
is mentioned, this "right" is subject to the exceptions
of KRS 61.878. During the course of any investigation,
individuals are going to give unsolicited comments and/or advice
regarding other employees. Individuals will interject their
opinion and even offer their recommendation as to the
"proper" course of action for dealing with a particular
person or circumstance. Such would be precluded from disclosure
by KRS 61.878(1)(j).
Pursuant to KRS 61.880(2) and 40 KAR 1:030, Section 3, the
undersigned requested additional information from the Department
as to the nature and status of the investigation in which the
requested records were related.
To facilitate this office's review, the Department furnished
us with a copy of the investigative report in question. The
contents were not disclosed to other parties, and have since been
returned to the Department. KRS 61.880(2)(c); 40 KAR 1:030
Section 3.
Although we cannot reveal the contents of the report, we can
generally describe the report as a part of the Department's
ongoing internal administrative action of allegations made by a
probation and parole officer in a letter to a circuit court judge
about certain drug testing services provided by a private vendor
and various related conduct of employees of the Department's
Division of Probation and Parole in Louisville. The investigative
report was prepared by Mr. Larry D. Ball, Kentucky Justice
Cabinet, and forwarded to Mr. Doug Sapp, Commissioner, Department
of Corrections, for his consideration.
For the reasons which follow, we conclude that the
Department's denial of Mr. Bleidt's request was proper and
consistent with provisions of the Open Records Act.
KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in
administrative adjudication that were compiled in the process of
detecting and investigating statutory or regulatory violations if
the disclosure of the information would harm the agency by
revealing the identity of informants not otherwise known or by
premature release of information to be used in a prospective law
enforcement action or administrative adjudication. Unless
exempted by other provisions of KRS 61.870 to 61.884, public
records exempted under this provision shall be open after
enforcement action is completed or a decision is made to take no
action. . . . The exemptions provided by this subsection shall
not be used by the custodian of the records to delay or impede
the exercise of rights granted by KRS 61.870 to 61.884.
This office has consistently recognized that an agency involved in an administrative adjudication is not required to disgorge documents relating to its investigation or enforcement action until the action has been concluded. 93-ORD-69.
However, such documents must be made available for inspection
at the conclusion of the administrative action unless they are
exempted by other provisions of the Open Records Act. KRS
61.878(1)(h).
In the instant action, Ms. Biggs indicates that the
Department's internal administrative investigation is still
ongoing. The Department has informed Mr. Bleidt that the records
may be made available for his inspection after the action is
either concluded or a decision is made to forgo any action. She
did advise him that certain of the investigative documents in
which recommendations or opinions were expressed may be exempt
under KRS 61.878(1)(i) and (j), as preliminary documents, to the
extent they were not incorporated into or made a part of the
Cabinet's final decision or action regarding the matter under
investigation.
Since the administrative action is still ongoing, we conclude
that the Cabinet properly denied Mr. Bleidt's request for
"all notes, taped conversations/interviews and
documents" regarding the investigation under KRS
61.878(1)(h).
In addition, among the public records which may be excluded
from public inspection are those set forth in KRS 61.878(1)(i)
and (j):
(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.
This office has consistently concluded that intraoffice and
interagency records are exempt from public inspection,
particularly where the documents are preliminary (not evidence of
final agency action) and contain opinions of the writers.
95-ORD-54; 93-ORD-125; OAG 90-66; OAG 86-5; OAG 85-104.
In OAG 78-626, at p. 2, this Office recognized:
Not every paper in the office of a public agency is a public
record subject to public inspection. Many papers are simply work
papers which are exempted because they are preliminary drafts and
notes. KRS 61.878(1)(g) [now (i) ]. Yellow pads can be filled
with outlines, notes, drafts and doodlings which are
unceremoniously thrown in the wastebasket or which may in certain
cases be kept in a desk drawer for future reference. Such
preliminary drafts and notes and preliminary memoranda are part
of the tools which a public employee or officer uses in hammering
out official action within the function of his office. They are
expressly exempted by the Open Records Law and may be destroyed
or kept at will and are not subject to public inspection.
In considering the underlying purpose of these exemptions,
this office has previously observed:
One of the purposes of KRS 61.878(1) [ (i) and (j) ] appears
to us to be to allow the free flow of discussion among
governmental officials which is preliminary to the final
decision. Consequently recommendations and opinions expressed by
a subordinate to a superior should not be subject to public
scrutiny. Otherwise, there would be a chilling effect cast upon
the ability of government to function as a system. There must be
an open atmosphere among staff members whereby they may express
their opinions, give recommendations and otherwise engage in a
preliminary process in support of the ultimate decision-maker's
final decision.
OAG 88-85, at p. 4.
We believe that this view is consistent with the rule
announced by the Kentucky Supreme Court in University of
Kentucky v Courier-Journal, Ky., 830 S.W.2d 373 (1992). In
that case, the Court held that documents that were once
preliminary in nature lose their exempt status only if they are
adopted by the public agency as part of its final action. See
also, Kentucky State Board of Medical Licensure v
Courier-Journal and Louisville Times Co., Ky.App., 637
S.W.2d 658 (1982).
Having examined the investigative report which gave rise to
this appeal, we concur with Ms. Biggs's description and
characterization of the records withheld and conclude they were
properly withheld from disclosure, pursuant to KRS 61.878(1)(i)
and (j), as preliminary recommendations, intra-agency and
inter-agency notes, and handwritten notes, none of which indicate
they were intended to give notice of final agency action.
The investigative report has been forwarded to the
Commissioner of the Department of Corrections for his
consideration. At this point it remains a preliminary internal
document setting forth opinions, observations, and
recommendations of the author of the report, along with
interviews of employees and other documents. Until final agency
action has been taken, the report is exempt from disclosure under
KRS 61.878(h), (i), and (j), and properly withheld by the
Department. If the report or any other preliminary documents are
incorporated into or made a part of the final agency action, they
would be open for inspection, "unless exempted by other
provisions of KRS 61.870 to 61.884." KRS 61.878(1)(h).
Finally, we note, the concluding sentence in KRS 61.878(3)
provides:
A public agency employee, including university employees,
applicant, or eligible shall not have the right to inspect or
copy any examination or any documents relating to ongoing
criminal or administrative investigations by an agency.
However, once the administrative action is completed, a public
agency employee, under authority of KRS 61.878(3), would be
entitled to inspect and to copy any record including preliminary
and other supporting documentation that relates to him or her.
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
#459
Distributed to:
John J. Bleidt
Bleidt & Casper
105 South Sherrin Avenue
Louisville KY 40207
Tamela Biggs
Staff Attorney
Department of Corrections
State Office Building
Frankfort KY 40601