A courageous open records decision issued by the attorney general's office on October 15 in a records access dispute between Kentuckians for the Commonwealth and the Public Service Commission.

Not only does the decision expose the political machinations that dominate the legislative process, but it represents a cogent analysis of the preliminary documents exceptions, long recognized as the most overused and abused exceptions to the open records law. The decision strictly construes the exceptions as expressly required by statute and attempts to rein in their injudicious and profligate use.

By way of background, on February 22 a representative of Kentuckians for the Commonwealth, Meta Mendel-Reyes, submitted a request for "any written communications, including email, or records of meetings pertaining to [Senate Bill 100, relating to net metering] that have taken place between PSC staff or PSC Commissioners and: staff of the Kentucky Legislative Research Commission; members of the Kentucky General Assembly or their staff; members of the Kentucky Executive Branch; representatives of electric utility companies, including electric cooperatives; representatives of associations of electric utilities; solar installers or representatives of solar industry associations; representatives of the Kentucky Chamber of Commerce; or others registered in Kentucky as legislative lobbyists or executive branch lobbyists."

PSC promptly denied the request explaining that "such records are not available to the public at this time," quoting the language of the exceptions and declaring that, "Any communications regarding pending legislation that the Commission or its staff may have had with the Legislative Research Commission, the Kentucky Legislature or members or staff of either group, or the other entities identified in your request fall under these exceptions."

In August, Kentuckians for the Commonwealth appealed PSC's denial of the request. Relying on well-established legal authority, the attorney general rejected PSC's reliance on the preliminary documents exceptions with respect to all but two responsive records. The staff otherwise found that PSC's response was procedurally and substantively deficient.

Although the attorney general recently ruled against PSC in another appeal involving Kentuckians for the Commonwealth -- because PSC refused to permit the attorney general's staff to confidentially review records responsive to Mendel-Reyes request for similar records from the 2018 session relating to House Bill 227, also relating to net metering -- PSC agreed to allow the staff to review the disputed records in this appeal.

The attorney general described the records, in broad terms, as: (1) communications between representatives of the PSC and legislators or Legislative Research Commission staff; (2) communications between representatives of the PSC and private lobbyists; (3) communications between representatives of the PSC and the Governor's Office; and (4) communications between the PSC and the Energy and Environment Cabinet, to the Secretary's Office of which the PSC is attached for administrative purposes pursuant to KRS 224.10-022."

Whatever inferences can be drawn from the existence of these communications about the controversial net metering legislation, the attorney general focused on the application of the exceptions to the records withheld, carefully parsing the language of the two "preliminary documents exceptions."

KRS 61.871 states that the exceptions provided by the open records law or otherwise provided by law "shall be strictly construed."

The two "preliminary documents" exceptions, KRS 61.878(1)(i) and(j) authorize public agencies to withhold:

"preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;

"preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"

Kentucky's Supreme Court has made abundantly clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action."

Nevertheless, public agencies regularly invoke these exceptions, as PSC did here, without regard to the content of the records. Extremists on either end of the access divide argue, on the one hand, that all preliminary records are open once final action is taken or, on the other hand, that no preliminary records are open after final action unless they are expressly incorporated or physically attached.

The truth lies somewhere in the middle, and the courts have slowly begun to curb this agency abuse which ignores the language of the exceptions and the legislative directive that all of the exceptions to the open records law must be strictly construed.

The attorney general's role in identifying and addressing this irreconcilable difference in interpretation cannot be overstated.

In the open records decision issued last week, the attorney general flatly rejected the argument advanced by PSC that responsive communications were preliminary because at the time Kentuckians for the Commonwealth made the request SB 100 had not passed both in the House and Senate.

He observed (and this is important) that PSC's argument, "misconstrues the purpose and operation of KRS 61.878(1)(j), which exists '[t]o preserve the integrity of a public agency's internal decision making process.' Given this statutory purpose, it follows that the 'final agency action' which deprives a record of preliminary status is *not the final action of some other entity, but the final action of the public agency that creates or possesses the record*. More specifically, an executive branch agency may not rely on the assertion that 'final agency action' as to its records occurs only in the legislative branch."

Additionally, the attorney general rejected PSC argument that because it "has no authority to take final action on pending legislation," its communications pertaining to pending legislation are forever preliminary and therefore exempt.

Again, the OAG staff noted, "This argument reflects an excessively narrow understanding of 'final agency action,' which need not always consist of some quasi-judicial or quasi-legislative action taken pursuant to a specific grant of jurisdiction. Here, the PSC formulated a final expression of its position as to a pending bill and transmitted it to members of the legislative branch as an act of advocacy. Those letters therefore constituted 'final agency action' by the PSC."

Even more groundbreaking, the attorney general rejected PSC's argument that email communications with *lobbyists* are exempt as "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency," under KRS 61.878(1)(i).

Citing opinions dating from the nineties, the attorney general reaffirmed that:

"Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee, or enter into a government contract based on bids."

And that:

"The exception codified at KRS 61.878(1)(i) is generally reserved for that narrow category of public records that reflects letter exchange by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality."

Correspondence intended to petition or advocate for a particular action by a public agency have consistently been treated as open records.​

With respect to correspondence with representatives of two professional lobbying firms and an advocacy organization, the attorney general observed:

"The records produced in camera give no indication of any express or implied assurances of confidentiality. Furthermore, Kentucky law requires both executive agency lobbyists and legislative lobbyists to file detailed registration statements with, respectively, the Executive Branch Ethics Commission and the Legislative Ethics Commission. KRS 11A.211; KRS 6.807. 'It is the public policy of this Commonwealth that a public servant shall work for the benefit of the people of the Commonwealth.' KRS 11A.005. It is also Kentucky's public policy that '[t]he identity and expenditures of certain persons who attempt to influence executive and legislative actions should be publicly identified and regulated to preserve and maintain the integrity of government.' KRS 6.801(2). This public policy is inconsistent with any expectation of 'confidentiality' on the part of legislative or executive lobbying groups.

"The essential nature of lobbying is precisely 'advocating or recommending a certain course of action' by a governmental entity. The disputed records in this appeal are no exception to that rule, as they consist of either advocacy of specific action concerning pending legislation or requests for information to assist in private legislative lobbying."

Purely fact based communications between PSC and the Governor's Office and between PSC and the Energy and Environment Cabinet, the attorney general held, are also open records because they are devoid of opinion or recommendation.

In the final analysis, only two of the communications implicated by Kentuckians for the Commonwealth's request contained opinion and were therefore exempt under the exception for preliminary memoranda in which opinions are expressed.

This demonstrates that public agencies are inclined to paint with very broad brush strokes in denying access to records they deem preliminary under a loose rather than a strict construction of the exceptions and that they casually (and conveniently) treat as one "predecisional" exception.

The decision represents an affront to so many powerbrokers, it is inconceivable that it will not be appealed to the Franklin Circuit Court.

But this much is clear: It is a courageous position for the attorney general; proof of the importance of his ability to conduct confidential review of disputed records; a step in the right direction toward restricting the overbroad construction of the preliminary documents exceptions; and a great victory for open government.