Request By:
Jon L. Fleischaker
Dismore & Shohl LLP
1400 PNC Plaza
500 West Jefferson Street
Louisville, KY 40202Michael T. Alexander
Deputy General Counsel
Office of the Governor
700 Capitol Avenue, Suite 100
Frankfort, KY 40601Michael G. Adams
Deputy General Counsel
Office of the Governor
700 Capitol Avenue, Suite 100
Frankfort, KY 40601Tom Loftus
The Courier-Journal
332 Capital Avenue, 2nd Floor
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor properly relied on executive privilege and KRS 61.878(1)(a), (i), and (j) in partially denying 1 Courier-Journal reporter Tom Loftus' June 13, 2005, request for "copies of any and all emails sent to and from the State government email address of sadie @ky. gov . since Dec. 9, 2003 to the present date [June 13]." For the reasons that follow, we find that the Office of the Governor failed to meet its burden of proof in partially denying Mr. Loftus' request.
In a letter dated June 24, 2005, 2 Deputy General Counsel Michael G. Adams advised Mr. Loftus that "certain emails" had been withheld on the basis of KRS 61.878(1)(a), (i), and (j) 3 because they consisted of:
. Emails to or from sadie @ky. gov which include information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[;]
. Correspondence with private individuals, none of which relates to the administration of a government contract or a petition for agency action[;]
. Preliminary drafts, notes, or preliminary memoranda between/among sadie @ky. gov and state officials including observations, opinions and/or recommendations[.]
One month later, The Courier-Journal initiated this appeal, asserting that the Office of the Governor's virtual blanket denial of Mr. Loftus' request suggested a liberal interpretation of the cited exceptions that is not warranted by their express language or the clear mandate of the Open Records Act set forth at KRS 61.871. In addition, The Courier argued that the "limited and perfunctory" response issued by the Office of the Governor, containing little more than a recitation of the language of the cited exceptions, did not satisfy the requirements of KRS 61.880 as construed in Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996).
Shortly after The Courier-Journal initiated this appeal, the undersigned Assistant Attorney General requested that the Office of the Governor transmit the disputed records to her "[t]o facilitate review of the issue on appeal, and under authority of KRS 61.880(2)(c) . . . ." (Emphasis added.) The undersigned Assistant Attorney General specifically acknowledged her "obligation not to disclose these records."
By letter dated August 10, 2005, the Office of the Governor declined this request, expanding upon its original arguments, and invoking, for the first time, executive privilege. The Office of the Governor suggested that this office was incapable of acting as "a disinterested arbiter in this open records dispute." Referencing Miscellaneous Grand Jury Proceeding No. 88, the Office of the Governor, through Mr. Adams, noted that the Attorney General has subpoenaed "certain of the sadie @ky. gov emails, and Circuit Judge Graham, recognizing executive privilege, has placed these items under seal rather than compelling their production to the Attorney General." On this basis, Mr. Adams maintained, the disputed emails "are automatically exempt from disclosure, per the precedent of [the Attorney General's] Office." 4 It was the position of his office that "[i]t defies logic to suggest that a reporter may obtain, or that the Attorney General may obtain, in an open records request items that a circuit judge already has ruled, in the context of a criminal proceeding, are protected by executive privilege and thus to be disclosed only upon a showing of relevance and necessity to that proceeding." 5 Respectfully, we disagree.
Before proceeding to the ultimate issue on this appeal, we briefly address the concerns expressed by the Office of the Governor relative to this office's ability to fairly and objectively adjudicate this open records dispute. KRS 61.880(2) assigns to the Attorney General the role of dispute mediator in an open records appeal. In construing this provision, this office has observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
Also, if this matter is appealed to the appropriate circuit court--which could have been done without requesting the opinion--that court will make a de novo review of the evidence. [Citations omitted.] Therefore this opinion will not prejudice the requesting party in any way.
OAG 92-10, p. 5, citing OAG 91-35, p. 3; see also OAG 78-639. Because there is no provision for independent review under circumstances such as those presented here, this office must proceed with a review of the appeal "without favoritism or bias." Id . We have successfully done so on numerous occasions in which our impartiality was called into question, including those occasions on which we were asked to conduct a KRS 61.880(2) or KRS 61.846(2) review of disputes involving this office and in which we found violations of the Open Records and Open Meetings Acts. See, e.g., 97-ORD-117 (Office of the Attorney General improperly relied on KRS 61.878(1)(a) in denying request for records relating to investigation); 99-ORD-121 (Office of the Attorney General violated KRS 61.880(1) in its denial of request for records of its Consumer Protection Division); 01-OMD-154 (Kentucky Child Support Guidelines Commission, which Attorney General was contractually obligated to legally advise, violated Open Meetings Act in failing to comply with requirements for special meetings); accord, 99-ORD-36; 05-ORD-075 (Attorney General adjudicates disputes involving Department of Public Advocacy). Here, as in past appeals, we assure the parties that "[w]e strive to maintain absolute [independence and] impartiality in discharging [the statutory] duty "with which we are charged by KRS 61.880(2). 97-ORD-117, p. 1.
To facilitate our review of open records appeals, KRS 61.880(2)(c) and 40 KAR 1:030(3) vest this office with the authority to inspect the records in dispute. KRS 61.880(2)(c) this provides in relevant part:
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.
Similarly, 40 KAR 1:030(3) provides:
KRS 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. 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.
In 96-ORD-206, this office acknowledged that we were "severely handicapped in conducting our review" by virtue of the agency's refusal to honor our request for copies of the disputed records or respond to our written inquires. Quoting from an earlier decision, we observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception, [footnote omitted] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial does not satisfy the burden of proof imposed on the agency. We have received no supporting documentation to confirm the assertion, nor have we been afforded access to . . . [the disputed record] which we specifically requested.
95-ORD-61, p. 5, cited in 96-ORD-206. Relying on KRS 61.880(2)(c) and 40 KAR 1:030(3), we noted:
[T]he General Assembly has twice vested the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review. Without this authority, the Attorney General's ability to render a reasoned open records decision would be severely impaired. The Attorney General recognizes that he is bound to observe the confidentiality of the records, and does not share [the agency's] apparent view that disclosure to this office pursuant to KRS 61.880(2)(c) constitutes waiver as to any legitimate privilege [or exemption] asserted. Because he does not have authority to compel disclosure of the disputed records, his only recourse is to find against the public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future.
96-ORD-106, p. 5. In both 95-ORD-61 and 96-ORD-206, the Attorney General concluded that the agencies whose denials were challenged had not met their burden of proof in sustaining those denials under KRS 61.880(2)(c). 6 We are constrained to reach the same conclusion in the appeal now before us.
The Office of Governor resists disclosure of the records in dispute on the basis of executive privilege, KRS 61.878(1)(a), KRS 61.878(1)(i), and KRS 61.878(1)(j), asserting that these protections preclude in camera inspection by this office for the exclusive purpose of adjudicating the open records now before us. While we readily acknowledge that the duty we are statutorily assigned is only quasi-adjudicative , we remind the Office of the Governor that, like a court, we are tasked with "issu[ing] . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884," 7 and that those decisions, if not appealed within thirty days from the day we render them, "shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained." 8
Further, we remind the Office of the Governor that KRS 61.880(2)(c) provides that an agency resisting disclosure has the burden of proof to sustain its action. In light of the statement of legislative policy set forth at KRS 61.871, and declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others," we are not prepared to accept, in the interest of comity, that all of the responsive documents are shielded from public inspection by operation of executive privilege, KRS 61.878(1)(a), (1)(i), or (1)(j).
In general, the cases cited by the parties to this appeal which analyze executive privilege focus on the necessity of "separating the wheat from the chaff in a determination of that which is and that which is not entitled to the claim of privilege. " Revenue Cabinet v. Graham, Ky., 710 S.W.2d 227, 229 (1986). In Graham , the Kentucky Supreme Court identified U.S. v. Nixon, 418 U.S. 683, 945 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), as "[a]rguably the most noteworthy case in which privilege was asserted against the in camera production of documents . . .," extracting the following quotation:
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. 9
U.S. v. Nixon, 418 U.S. at 706, cited in Graham at 229. Continuing, the Court rejected the agency claim:
that to allow in camera inspection against its claim of privilege would be a challenge to its veracity and would, in effect, make the court an arbiter. This is a horse long since ridden and sent to its stall via Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803). At 177 therein Chief Justice Marshall explained with regard to the balance of powers among the executive, legislative, and judicial branches that "it is emphatically the province and duty of the judicial department to say what the law is." An in camera examination permits the Court to do exactly that, to review the requested documents and to determine the application of the law of privilege thereto.
Id . Although the Office of the Attorney General is an executive branch agency, in its statutorily assigned role of dispute mediator under the Open Records Law it acts in a quasi-judicial capacity and, to this limited extent, it is our duty "to say what the law is . . . [by] review[ing] the requested documents and . . . determin[ing] the application of the law of privilege thereto." Id . The Office of the Governor has effectively precluded us from discharging this duty, and we therefore must conclude that that Office failed to meet its statutorily assigned burden of proof relative to the invocation of executive privilege.
By the same token, we cannot blindly accept the position taken by the Office of the Governor that the disputed emails are otherwise protected under the rule announced in Courier-Journal v. Jones , above. 10 Suffice it to say that the appeal before us involves email transmissions, not an appointment calendar, and that Jones therefore cannot be considered "simply dispositive. " We have no doubt that with respect to certain of the disputed emails "the public's right to know is subservient to . . . the need for governmental confidentiality" which is recognized in KRS 61.878(1)(i) and (j). Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 75, 878 (1995). We are foreclosed from making such a determination relative to individual emails by virtue of the Office of the Governor's refusal to comply with our KRS 61.880(2)(c) request. Compare, 05-ORD-144 (affirming, in part, the Office of the Governor's denial of access to 154 emails sent by or to Dave Disponett). Bearing in mind that the public agency resisting disclosure is assigned the burden of proof to sustain its action, that the Open Records Act "exhibits general bias favoring disclosure, " Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324, 327 (1992), and that, perhaps most importantly, "free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others," 11 we find that the Office of the Governor has not met its burden of proof in sustaining the denial of The Courier-Journal's request and must produce the disputed emails for Mr. Loftus' inspection.
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.
Footnotes
Footnotes
1 The Office of the Governor released three emails to Mr. Loftus and withheld the remainder.
2 In a timely written response, Deputy General Counsel Michael T. Alexander notified Mr. Loftus that "due to the breadth of [his] request," the requested records would not be available until June 24, 2005.
3 Erroneously cited as KRS 61.878(1)(a), (j), and (k).
4 In support, Mr. Adams cited OAG 80-353, OAG 89-22, OAG 91-121, OAG 92-119, and OAG 92-126. Mr. Adams did not produce a copy of the order sealing the records and we are foreclosed from ascertaining the scope of that order. Assuming that the Office of the Governor retained copies of the disputed emails, any such order is binding on that office only if it is bound by the express terms of the order. Accord, 96-ORD-244, Note 1, (notwithstanding entry of an order by U.S. Magistrate sealing search warrants and affidavits executed on Legislative Research Commission, and directing the district clerk to maintain the documents under seal, LRC, which had retained copies of the disputed records, was not bound by the terms of the order, and "[s]uch orders are binding on a public agency only when it is a party bound by the terms of the order"). The referenced authorities are therefore inapposite.
5 Mr. Adams also amplified on the original statutory bases invoked for largely denying Mr. Loftus' request, asserting that "[t]he decision in Courier-Journal v. Jones, Ky. App., 895 S.W.2d 6 (1995), is simply dispositive, " and focusing on the Jones Court's "understandable bemusement that 'we are never informed just what the media seeks and for what purpose.'" Id. at 7. We believe the better view, and the view to which this office has consistently adhered, is found in Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994) wherein the court declared that an open records analysis "does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next." See, e.g., OAG 82-233; OAG 89-76; OAG 92-30; 01-ORD-8; 05-ORD-025.
6 See also 04-ORD-031 (Kenton County Fiscal Court failed to meet statutory burden of proof in denying access to records relating to dismissal of director of animal control by failing to produce disputed records and respond to inquiries lawfully requested under KRS 61.880(2)(c)); 05-ORD-169 (Attorney General cannot affirm City of Mayfield's denial of request for investigative records on the basis of records' nonexistence where city elected not to respond to written inquiries lawfully submitted under authority of KRS 61.880(2)(c)).
7 KRS 61.880(2)(a).
8 KRS 61.880(2)(c).
9 With reference to "the protection that a . . . court will be obliged to provide" in conducting in camera inspection of public records for which the claim is asserted, we note that KRS 61.880(2)(c) expressly provides that "[t]he Attorney General may also request a copy of the records involved but they shall not be disclosed ." (Emphasis added.) See also, 40 KAR 1:030(3) (expressly providing that "[i]f documents . . . 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 "). (Emphasis added.) The undersigned Assistant Attorney General fully acknowledged her duty not to disclose the records in her August 1 letter to the Office of the Governor.
10 Courier-Journal v. Jones addresses the application of KRS 61.878(1)(i) and (j) to the Governor's appointment calendar and does not address the application of KRS 61.878(1)(a) to that document. It is in no way "dispositive" of the issue of access under that exception. We will expend no additional effort in analyzing the Office of the Governor's unsubstantiated position relative to KRS 61.878(1)(a) except to note that Enterprise Policy Number C10-060, Internet and Electronic Mail Acceptable Use Policy, which appears on the Commonwealth Office of Technology website at http://gotsource.ky.gov/dscgi/ds.py/View/Collection-1450 , and which is deemed applicable to "all Executive Branch agencies and users," states that users "shall have no expectation of privacy associated with Email transmissions . . . using the Commonwealth's resources."
11 KRS 61.871.