Some keen-eyed media representatives spied this open records decision on the attorney general's weekly summary of open records and meetings decisions issued during the previous week.

They asked: What is going on? The governor's office didn't provide responsive emails for in camera [in private] inspection by the attorney general's staff in an open records appeal?

https://ag.ky.gov/orom/2019/19-ORD-178.doc

My answer probably didn't surprise them. I wrote:

"This is not novel. Nor did it begin with the Governor. UK started this ball rolling (basing their position on a guidance letter from the US Dept of Education interpreting FERPA) in the sexual harassment context but it actually predates even those cases."

What may have surprised them is the dramatic increase in the number of appeals in which this occurs since a few short years ago.

The facts of this appeal, and the resulting open records decision, may give it greater visibility. It involves a request from E&E News reporter Kevin Bogardus. He requested "copies of all emails sent to and from the following individuals at the Office of the Kentucky Governor related to former EPA Administrator Scott Pruitt and Pruitt's consulting from July 5, 2018 to the date that this request is processed: Matt Bevin; Jenean Hampton; Blake Brickman; Bryan Sunderland; Steve Pitt."

The governor's office denied his request based on the familiar argument that all responsive emails are exempt under the exceptions for preliminary documents, attorney client privilege, or attorney work product. Bogardus then appealed to the Office of the Attorney General.

As they have successfully done in the past, but less successfully done in recent years, the AG's open records staff requested the responsive emails "for substantiation" because mere invocation of these exceptions was insufficient to prove their application.

The statute on which the staff relied was enacted in 1994. It provides:

"The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."

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

The statute is echoed in a regulation adopted in 1995, restating the open records staff's authority and explaining that "if documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."

https://apps.legislature.ky.gov/law/kar/040/001/030.pdf

Although he did, to his credit, provide a general index of the emails withheld and the corresponding exception or privilege, the governor refused the open records staff's request to produce the records for in camera review in Mr. Bogardus's appeal.

And as we recently learned, a summary is not a substitute for the records themselves. The attorney general ruled against the governor and the case will likely proceed to the circuit court.

As noted, the governor was by no means the first to refuse the staff's request and, sadly, is unlikely to be the last.

Continuing, I advised the media representatives who raised this issue:

It's why the AG is in court. He intervened in the UK Kernel and the WKU Herald case, but the issue has gotten somewhat watered down in the courts' analysis to date. The strongest statement about the statute appears in the Cabinet for Health and Family Services v Todd County Standard case."

In that case, the Court of Appeals strongly censured the cabinet for refusing to honor the open records staff's request for documentation substantiating its denial of the existence of responsive records—a denial that was later exposed as a lie. Affirming the imposition of attorneys' fees and penalties for willfully withholding the records, the court declared that the cabinet should not benefit "from intentionally frustrating the Attorney General's review of an open records request," and concluded that "such result would subvert the General Assembly's intent behind providing review by the Attorney General under KRS 61.880(5)."

https://cases.justia.com/kentucky/court-of-appeals/2015-2012-ca-000336-…

Since I left the office in September 2016 the number of appeals in which the open records staff has ruled against public agencies of all kinds because they refused to honor the staff's request to produce disputed records for in camera inspection—and thus failed to meet their burden of proving that they properly denied the initial open records request--stands, by rough count, at 20. No statistics exist for previous years, but it is likely that number meets or exceeds the total number of appeals where the staff confronted this issue in my 25 years of service.

Subverting the intent of laws mandating attorney general review of open records appeals doesn't trouble these agencies. Nor does hauling citizens or the media into court to appeal an adverse ruling from the attorney general and expending taxpayer dollars on prosecuting these cases as well as attorneys' fees and penalties if they lose.

We often hear of solutions looking for problems. This is a serious problem that is looking for a solution.