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Happier times for Governor and Attorney General

The Associated Press reports on the open records decision, 23-ORD-006, issued earlier this week by the Office of the Attorney General in an appeal from the Office of the Governor's partial denial of a records request.…;

The OAG was asked to review a December 2 request submitted by Sean Southard to the Office of the Governor and the response of the Office of the Governor. 

In the decision, the OAG describes that request:

"First, the Appellant requested '[a]ny and all correspondence' between the 13 individuals and two other individuals. Second, the Appellant requested '[a]ny and all correspondence . . . to or from' the 13 individuals 'mentioning or related to school closures, remote learning, nontraditional instruction or NTI, KEA or the Kentucky Education Association, JCTA or the Jefferson County Teachers Association from December 10, 2019 to present.”

The OAG then describes the Office of the Governor's "timely response," meaning a response that was issued within five business days of the request as required by law. The Office of the Governor:

"withheld one communication under KRS 61.878(1)(i) and (j) because it was 'a communication solely regarding the scheduling of a meeting that may not have occurred.' The agency also denied the Appellant’s request for correspondence 'mentioning or related to' specific subjects, because it claimed the request was insufficiently specific to enable the agency to identify the requested records. Quoting 19-ORD-084, the agency asserted that 'a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request.'"

In a footnote, the Office of the Attorney General explains that the Office of the Governor "also provided three responsive records, but redacted from them a cell phone number and personal e-mail address under KRS 61.878(1)(a)."

The OAG affirmed denial of the correspondence in which a meeting was scheduled, citing the pertinent legal authority, specifically Univ. of Louisville v. Sharp, 416 S.W.3d 313, 316 (Ky. App. 2013); see also Courier-Journal v. Jones, 895 S.W.2d 6, 10 (Ky. App. 1995). Rightly or wrongly, the courts have held that 

communications in which meetings are scheduled are exempt as preliminary documents, in the first case, and the Governor's schedule was is exempt as a preliminary document, in the second case. 

"Here," the OAG concluded, "the agency asserts that the withheld communication related solely to the scheduling of a meeting. Thus, because the communication was not adopted as the basis of final agency action, the agency properly withheld it under KRS 61.878(1)(j)." The Governor wins on this point. Southard, the OAG comments in the first footnote, "does not contest redactions" of a cellphone number and personal email address from the three records the office of the Governor released. 

A second footnote verifies that the Office of the Governor supplemented its initial response when it received notification of Southard's appeal:

"On appeal, the agency [meaning the Office of the Governor] argues the Attorney General must recuse himself from this appeal because the Attorney General has filed to run as a candidate in the 2023 gubernatorial election. Although the Attorney General has recused himself from this decision, the Office must nevertheless carry out its mandate to adjudicate disputes under the Act. See KRS 61.880(2). Moreover, the Office has previously rendered decisions pursuant to its mandate under KRS 61.880(2) in similar situations."

this was a gratuitous demand and response since in my 25 years of direct experience as an assistant attorney general reviewing open records appeals it was rare, indeed, for the Attorney General to involve himself in this daily office responsibility, there being more pressing business for him to attend to. This is not to say that his subordinates -- I liked to call them "the palace guard" -- do not step in to analyze open records disputes from all political angles and protect "the boss" from any potential backlash. 

But this is nothing new in the Cameron administration. No one wishes more than I that it were not the case. Open records appeals should be free from mid-level political influence as well as the Attorney General's direct (albeit exceedingly rare) interference, but no attorney general can honestly say that his staff never interfered, or his interests were not at least to some extent considered, in the resolution of a high profile open records appeal.

Daniel Cameron's "recusal" is therefore a red herring. 

What the decision does not delineate is what other arguments the Office of the Governor advanced in its supplemental response. That supplemental response is permitted by state regulation, and it presents the opportunity for a public agency to correct misstatements of fact in the letter of appeal and to amplify on, or even supplement, it's initial response.

The omission of these salient details is part of this OAG's goal of truncated open records and open meetings decisions. My colleagues and I no doubt erred in our extended delineation of facts and legal analysis, but three to five pages limits the public's ability to fully understand how and why the Office of the Attorney General reached its decision. 

A copy of all underlying documentation in an appeal is public record and available under the open records law. These materials are critical to understanding whether, as the Office of the Governor claims, the Office of the Attorney General “changed the rules of the game during the appeal process" and "never given [the Office of the Governor] the opportunity to respond to the specific request they ruled on.”

The OAG writes:

"Here, the agency claims it cannot determine the scope of the Appellant’s request because he seeks 'any and all records' related to certain subjects. But the Appellant did not request 'any and all records.' Rather, he requested 'correspondence,' the ordinary meaning of which is 'letters or emails exchanged.' 22- ORD-255. Thus, the Appellant has limited his request by persons, time frame, subject matter, and type of records."

Having not seen the underlying "record on appeal," I cannot say with certainty, but it appears Southard offered suggestions for locating the records identified in his original request in his letter of appeal to the OAG (to which the request and denial were attached). 

Did this constitute a new request? If so, the Office of the Governor could have raised the argument that this was not Southard's original request and that its original response that the request was overly broad and unreasonably burdensome was based on the original request. 

Or it could have issued a response to the "new request" with five business days. But this doesn't really support a claim of a rule change mid-appeal. 

A request for all correspondence between 15 parties within a three year span is, indeed, broad (although state records retention requirements generally mandate retention of routine correspondence of no more than two years). The challenges associated with recovery of hard copy correspondence are far more daunting than recovery of email-- where most public officials conduct routine business -- since it can be electronically searched by sender name, recipient name, timeframe, and subject.

But, again without having seen the underlying record on appeal, it is impossible to gauge what, if any proof the Governor offered in support of his claim of an unreasonable burden.

Until there is a careful review of these documents, politicians and pundits should calm down. I, for one, think there was an honest misunderstanding.

The OAG must review open records appeals with 20 business days unless the deadline for his decision is extended by an additional 30 days for one of the reasons identified in the law. With multiple appeals pending at any time, this precludes the deep legal analysis in which a court might engage. But it remains a singular virtue of Kentucky's law: speedy (and free) resolution of an open records or open meetings appeal without the time and expense associated with an appeal to the courts -- the latter being the only recourse in many states.

The particular issue this appeal presents is particularly confounding in a world of electronic records. What is an overly broad and unreasonably burdensome request in the digital age? This issue should be presented to the courts for deep legal analysis, rather than the speedy but, perforce, more superficial review the OAG can conduct in 20 days. Let the courts be the guide and the OAG must follow this guidance. I, for one, would welcome an appeal of this open records decision, 23-ORD-006, to the appellate courts since it has, not necessarily here but in many cases, become a far too overused evasion 

But, for now, we need to amp down the accusations. The Office of the Governor responded within five business days, released some records, and withheld others based on a claim of unreasonable burden. This was the office's right and duty. It does not signify some nefarious design to hide the truth from the public, as Southard claimed when he immediately forwarded a copy of the open records decision -- which will not be released to the press under normal protocol until Monday, January 23 -- to Fox Digital News. 

(Nothing wrong there, either. Southard was free to do with the open records decision whatever he wished once it was in his hands on January 17. But the Fox reporting was not exactly neutral). 

A long political season lies ahead. The Democratic Party has made extensive use of the open records law, to date, and the Republican Party is now following suit. This is a common and widely recognized use of the open records law to uncover, for example, an incumbent’s unexplained travel and expenses.…

It's only the political rhetoric associated --not with the content of the record but with the handling of the request and appeal -- that is unprecedented. Sadly, however, it is not unexpected.