Public agency records custodians beware!

University of Kentucky v The Kernel Press recently became final. In it, the Kentucky Supreme Court takes no prisoners.

http://opinions.kycourts.net/sc/2019-SC-0468-DG.pdf?fbclid=IwAR3h-PrriV…

"It's very unusual to get an opinion of that length which includes language so critical of one of the party's actions," The Kernel's attorney, Tom Miller, observed.

The case establishes a clear standard for agency denials of open records requests:

"For each document the [agency] claims can be properly withheld from production pursuant to the ORA, the [agency] has the burden to prove that the document fits within an exception by identifying the specific ORA exception and explaining how it applies. KRS 61.880."

Expanding on this holding, the Court declares:

"A public agency can deny an ORA request based on one or more of the statutory exceptions but the agency's obligation in those circumstances is clear: "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880. 'The agency's explanation must be detailed enough to permit the court to assess its claim and the opposing party to challenge it.'"

While this should be nothing new to open records practitioners — the Court has clearly delineated these requirements twice before — the Court went to great pains to point out the deficiencies in UK's response.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065

https://caselaw.findlaw.com/ky-supreme-court/1653242.html

The Court's strong condemnation of UK's denial — on both procedural and substantive grounds — signals the end of "boilerplate" responses with vague references to responsive records, parroting the language of the statutory exceptions relied upon.

Such boilerplate responses are, according to the Kentucky Supreme Court, "wholly unacceptable."

But the problem persists.

Here, for example, are two recent examples of agency responses that fall short of the mark.

The Frankfort State Journal reports on its recent request to the City of Frankfort for "emails and or messages sent or received on public/private devices or accounts related to the recent hack into city servers." The request was limited to a five day timeframe and "city elected officials, department heads, IT staff, [and] City Manager/Clerk/Solicitor."

https://www.state-journal.com/news/focus-what-we-know-and-don-t-know-ab…

The city responded:

"1) The records you seek are exempt pursuant to KRS 61.878(1)(m) – Public infrastructure records related to information technology which, if disclosed, have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act.

"2) Additional records, particularly emails related to your request, are exempt pursuant to KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503, because they are a confidential record protected by the attorney-client privilege and work product rule. Additionally, they contain the advice of counsel constituting attorney client privilege and contain attorney work product."

In an entirely separate open records exchange, the Bluegrass Institute for Public Policy Solutions requested, among other things, a contract for lobbying services between UofL Health and McCarthy Strategic Solution and UofL Health's procurement policies.

UofL Health partially denied access to the contract, explaining that the redacted information:

". . . is exempt from disclosure pursuant to Section 61.878(1)(c)[sic] records that are confidential or proprietary which if openly disclosed would permit an unfair commercial advantage to competitors of the entity."

Acknowledging the existence of "a variety of internal processes, controls, assigned responsibilities, and a hierarchy for all approvals," UofL Health neither fulfilled nor denied BIPPS's request for procurement policies.

To quote the Kentucky Supreme Court, "this is not how the ORA process works."

As those knowledgeable in the open records law agreed, and The State Journal reported, "These responses are nowhere close to sufficient and [the requester] should press them for a more detailed response. What they've given does not come close to satisfying their obligations."

Admonishing UK in the strongest possible terms, the Court, "reiterated the ORA obligations of a state agency, statutory obligations that were ignored or minimized by the University at every step in this case."

Public agencies must step up now or suffer the consequences later. On this point, the Supreme Court could not have been clearer.