Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Oldham County Planning and Development Services violated the Kentucky Open Records Act in partially denying Doreen D. Carlson's April 6, 2012, request for "[a]ll electronic communications (emails) regarding [2900 Barrickman Lane in Goshen, KY 40026 from] 3/1/11 to present" and "[a]ll documents [generated] since last request 1/12/12." Director Jim P. Urban advised Richard W. and Doreen Carlson ("the Carlsons") upon receipt "that the emails requested will be available on 4/18." However, by letter of that date Mr. Urban informed the Carlsons that legal counsel for the agency had advised "that only correspondence or communications that constitute a final decision of the agency, evidence leading to an official action, findings of fact or conclusions of law are subject to Open Records Requests." 1 He attached copies of the responsive e-mails deemed accessible by the public. The Carlsons initiated this appeal by letter dated January 12, 2013, questioning whether the agency violated the Act in failing to cite a statutory exception (s) and briefly explain how it applied to any responsive e-mails withheld, and whether the agency's implicit reliance on KRS 61.878(1)(i) and/or (j) was appropriate, noting that a June 18, 2012, letter attached thereto confirmed that "no official decision or action" had occurred regarding the subject property since October 27, 2011.
Upon receiving notification of the Carlsons' appeal, Oldham County Attorney John K. Carter responded on behalf of Planning and Development, arguing that Mr. Urban's April 18 letter was correct. Nevertheless, he noted, Mr. Urban "provided copies of emails all dated after the Carlsons' requests." Mr. Carter asserted that Mr. Urban's delay in producing the records until April 18, 2012, was "facially compliant with KRS 61.872(5)" in that locating and reviewing e-mails in order to determine whether they are subject to production is "time consuming." Regarding e-mails withheld "as being non-final action of a public agency, " Planning and Development for the first time quoted the language of KRS 61.878(1)(i) and (j) without further comment. Mr. Carter asserted that the Carlsons' appeal "has no merit" except for the allegation that Planning and Development failed to produce any existing responsive e-mails until April 18, 2012, "a mere nine days" beyond the statutory time frame. He acknowledged that Mr. Urban failed to provide a "written explanation" for the delay, arguing that he clearly "attempted to comply with the bulk of the request by making all records available to Carlson on April 9, 2012." By "its nature," Mr. Carter argued, electronic correspondence "requires more than three (3) days to determine (1) whether such communications exist and (2) whether those emails are subject to production under the Open Records Act. " Inasmuch as the request covered a period of more than one (1) year, the agency maintained it was "facially obvious" that three days would not be sufficient. 2 Regardless of whether the length of the delay was reasonable on the facts presented here, Planning and Development's interpretation of KRS 61.872(5) is contrary to its mandatory language and governing legal authority. Its ultimate disposition of the request was also substantively incorrect with certain exceptions.
Although Mr. Urban issued a written response to the Carlsons' April 6, 2012, request within three business days per KRS 61.880(1), that response, as in 12-ORD-151, was otherwise deficient insofar as the agency failed to either provide the Carlsons with access to all existing responsive e-mails within that period of time or cite the applicable statutory exception (s) and explain how it applied to any records being withheld. Planning and Development failed, in the alternative, to expressly invoke KRS 61.872(5), 3 the statutorily recognized exception to KRS 61.880(1), and provide a detailed explanation of the cause for delay in producing any existing responsive e-mails. See 12-ORD-151; 13-ORD-035. Noticeably absent from the April 6 response of Planning and Development and its final response on April 18 is any reference to KRS 61.872(5). Equally lacking is the statutorily required explanation of the cause for delay. Assuming the records being sought were "in active use, in storage or not otherwise available," Planning and Development failed to specify which of these permissible reasons for delay applied, if any. "The need to redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request and has not been found to be, in and of itself, a reason for additional delay." 12-ORD-227, p. 2. Planning and Development provided a specific date on which the records would be made available; however, it denied access to a significant number of responsive public records on that date instead. Its final response also lacked the specificity required under KRS 61.880(1), pursuant to which a "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. " (Emphasis added). In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. These requirements must be satisfied for a public agency to satisfy its burden of proof under KRS 61.880(1) and (2)(c). 04-ORD-106, p. 6.
Given the lack of evidence presented regarding the actual content of the e-mails in dispute or how the referenced statutory exceptions applied on the facts presented, this office requested that Planning and Development provide us with unredacted hard copies of all e-mails withheld on the bases of KRS 61.878(1)(i) and (j), the statutory exceptions invoked on appeal, for purposes of in camera inspection per KRS 61.880(1)(2) and 40 KAR 1:030, Section 3. Because the agency did not choose to provide any context in which to review the subject e-mails or elaborate regarding its position relative to KRS 61.878(1)(i) and (j), this office afforded Planning and Development a third opportunity to satisfy its burden of proof after conducting our initial review by again requesting additional information per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3 in order to facilitate a correct resolution of this matter. Specifically, this office asked the agency to clarify which kind of preliminary record it believed each particular email was and, when appropriate, to explain "what constituted the final action (or decision to take no action) of the agency in order to enable us to determine whether the subject e-mail forfeited its preliminary status because it was ultimately adopted, in whole or in part, as the basis of the final action, whether expressly or impliedly, or the subject e-mail retained its preliminary status and therefore is exempt. " Finally, this office asked Planning and Development to "identify the role or function of anyone named in the e-mails whose identity or position is not self-evident." The agency complied in a timely manner, specified which exception(s) it was relying upon relative to each of the e-mails remaining in dispute, and identified some individuals, but in many cases only paraphrased the relevant statutory language, asserting, for example, that a particular e-mail was "exempt as correspondence with a private individual not intended to give notice of a final action" or "also exempt under attorney/client privilege" without actually explaining how it applied. A "bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . ." 00-ORD-10, p. 11.
Having reviewed all of the e-mails remaining in dispute, 4 the Attorney General remains unable to conclusively determine whether some of the e-mails were ultimately adopted, in whole or in part, as the basis for a final action of the agency, or what exactly constituted the final action (s) each time, although it appears that some e-mails, at least in part, were so adopted; if so, those e-mails forfeited their preliminary status to that extent. Any responsive e-mails which are properly characterized as preliminary drafts, or preliminary recommendations and/or preliminary memoranda in which opinions are expressed or policies formulated, can be properly withheld on the basis of KRS 61.878(1)(i) and (j), respectively, unless adopted implicitly, or explicitly, as the basis for any final action by the agency, including the decision to take no action. The record lacks adequate information for this office to determine whether the agency's reliance on KRS 61.878(1)(i) relative to "correspondence with a private individual...." was justified in every instance though KRS 61.878(1)(i) was inapplicable on those occasions where action was requested or anticipated in response to such correspondence and relative to e-mails consisting of communications between two public officials. The agency failed to reference KRE 503(b), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which it also neglected to cite, as required under KRS 61.880(1), but ultimately invoked the attorney-client privilege relative to certain e-mails, in camera review of which confirmed that all three of the required elements were satisfied as required to justify reliance on the privilege in most instances; accordingly, this office finds that Planning and Development properly relied upon the attorney-client privilege in withholding those communications.
In resolving the questions presented, this office is guided by the legislative statement of policy codified at KRS 61.871, 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," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). "Despite its manifest intention to enact a disclosure statute," however, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994). See
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of these statutory exceptions in various contexts. See
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983);
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992); see 99-ORD-220. Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for a final action. See OAGs 83-405, 88-2, and 89-69. City of Louisville , above, the seminal case on this issue, and its progeny, including the subsequent line of opinions/ decisions by this office, are controlling. See 97-ORD-168, pp. 2-7; compare 01-ORD-47.
Regarding the underlying rationale of these statutory exceptions, the Attorney General has recognized that "KRS 61.878(1)[(i) and (j)] have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies." 93-ORD-125, p. 4. That rationale is deemed "equally compelling regardless of whether the communications are within an agency or between agencies." Id. Such preliminary drafts, notes, recommendations and memoranda "are part of the tools which a public employee or officer uses in hammering out official action within the function of his office." Id. In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to private individuals," is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " Id., p. 2. This exception does not apply to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6; 04-ORD-125. Significantly, "[w]ritings 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." OAG 90-142, p. 6. See 07-ORD-181 and 12-ORD-134 (copies attached hereto and incorporated by reference). If a record cannot be properly characterized as "correspondence with a private individual," contrary to Planning and Development's position, "the question of whether final action has been taken by the agency becomes irrelevant." 99-ORD-220, p. 7. Simply put, "we do not reach the second part of the KRS 61.878(1)(i) analysis, requiring final action of a public agency, if the first part of the analysis, requiring that the disputed record consist of correspondence, is not met." Id.
In 05-ORD-280 this office analyzed a series of then recent decisions involving access to intra/interagency e-mails, applying these authorities in contrasting the "conversational-type communications" at issue in 05-ORD-144, which were deemed to be "of a transitory nature, devoid of meaningful value to the agency" and consisting of "neither drafts, notes, or correspondence with private individuals, nor subjective expressions of opinion . . . [or] recommendation, " with the emails at issue in 05-ORD-210 and 05-ORD-221. In the latter decisions, the Attorney General affirmed the denials of access only as to e-mails containing recommendations and opinions, concluding that such e-mails fell squarely within the parameters of KRS 61.878(1)(j) and were protected from disclosure unless adopted as the basis for any final action by the agency. This office reviewed the subject emails produced for in camera review in each case, and in subsequent appeals involving e-mail correspondence, "through the prism of the Kentucky Open Records Act and not in light of [prior] or subsequent disclosures through other legal mechanisms." 05-ORD-144, p. 5; 12-ORD-075. Fundamental to each decision was the recognition that, based on the limited facts before us and the time constraints imposed under KRS 61.880(2), this office was "unable to trace each [email] to its conclusion, or determine what role the email played" in the final disposition of the matters to which it pertained. Id., p. 7. The instant appeal is no exception.
Although this office is precluded from revealing the contents of the e-mails provided for in camera review, 5 most of which the agency withheld under KRS 61.878(1)(i) and (j), this office can say that many e-mails were properly withheld (some of which are partially duplicative) . 6 However, the remaining e-mails withheld on the basis of KRS 61.878(1)(i) or (j) do not appear, based on the limited evidentiary record, to fall within the parameters of either statutory exception. Rather, nos. 24 and 25 clearly are not exempt as "correspondence . . ." given that action by the agency, namely a response to a request made under the Act, was expected and there was no assurance of confidentiality. Similarly, no. 60 (consisting primarily of attachments, including the Carlsons' January 11, 2011, and January 23, 2012, Open Records requests and the agency's January 23, 2012, response) is not comprised of documents to which KRS 61.878(1)(i)(action was requested) and (j) apply, with the exception of the response by Amy Alvey. Inasmuch as that letter comprised the agency's final action, it forfeited its preliminary character. 7
No. 61 consists of a routine exchange (requesting a telephone number but not containing it) between Mr. Urban and the Judge Executive's Office. KRS 61.878(1)(i) is facially inapplicable. Insofar as the citizen requested or expected action by the agency in response to his e-mail, no. 64 is not protected on that basis either. No. 65 is a partial duplicate of no. 64 and, in the absence of additional insight, appears non-exempt as the attachment seems to constitute the agency's decision or action. Because Mr. Urban's decision regarding the alleged situation constituted final action, no. 28 was improperly withheld under KRS 61.878(1)(i) and no. 72 is a partial duplicate which is not "correspondence" insofar as the private individual requested action by the agency. Planning and Development cited KRS 61.878(1)(j) relative to no. 82 as "memoranda (photograph)," but a photograph cannot be properly characterized as either a "recommendation" or a "memoranda." 11-ORD-108, p. 10. KRS 61.878(1)(i) is facially inapplicable to nos. 50-51, 91-92, and 49 given that a Chief of Police is not a "private individual." However, portions of the e-mail contain preliminary opinions, which Planning and Development was entitled to redact under KRS 61.878(1)(j) and/or constitute preliminary recommendations or memoranda, which also qualify. See KRS 61.878(4) .
Both the courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege in the context of an Open Records dispute if , as in
Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), all of the elements of the privileges are present. See 10-ORD-125 (copy attached hereto and incorporated by reference), pp. 6-11, for analysis of the privilege in the context of an Open Records dispute. This office has recognized that a public agency "'cannot withhold every document that relates to a particular matter under KRS 61.878(1)[(l)] and the attorney-client [privilege or] work product doctrine simply because it is represented by an attorney in the matter.'" 01-ORD-246, p. 17, quoting OAG 91-109; 03-ORD-015 (holding there is no "'litigation'" or "'residual'" exception that can be invoked by a public agency solely because it is engaged in litigation, or threatened litigation, and emphasizing that the attorney-client privilege and work product doctrine could not "be invoked absent a showing that each of the elements of KRE 503 or CR 26.02 [is present]"). KRE 503(b) only applies when a public agency can establish that all three of the following elements are present: 1) relationship of attorney and client; 2) communication by or to the client relating to the subject matter upon which professional advice is sought; and 3) the confidentiality of the expression for which the protection is claimed. 97-ORD-127, p. 1 (citation omitted). More recently, the Kentucky Supreme Court recognized that the attorney-client privilege "does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions."
Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008).
Planning and Development belatedly asserted the attorney-client privilege, but made no attempt to demonstrate that all of the required elements were satisfied in some instances. However, independent review of the responsive e-mails withheld on the basis of KRE 503 revealed that nos. 20, 31 (in part), 33-35 (except as to exchange between Urban and Voegele and not simply because comprised of exchange between clients and legal counsel) (partially duplicative) , 53 (not simply because consists of an exchange between legal counsel and the agency but also "draft" unless adopted in final version), 57, 59, and 63 (assuming that individual other than Mr. Urban is also represented by Mr. Craigmyle) satisfy KRE 503(b) and were properly withheld on that basis. "Bearing in mind that the Attorney General is constrained by time and resources from conducting an in-depth inquiry into the issue[s] presented, and that on occasion, the application of the Open Records Act must be determined by a court of law, an avenue that remains open to [either party if it] disagrees with our decision," 10-ORD-191, p. 5, this office partially affirms the denial. See KRS 61.880(5); 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.
Richard and Doreen CarlsonJim P. UrbanJohn K. Carter
Footnotes
Footnotes
1 Mr. Urban further advised that Mrs. Carlson reviewed the file relating to 1505 Hickory Hill on April 9, 2012, "and no copies were requested at that time (Item 1b). There are no electronic communications (emails) regarding 1505 Hickory Hill, LaGrange (Item 1a)." In relation to Item 1(b), Mr. Urban advised that Mrs. Carlson also reviewed the file relating to 2900 Barrickman Lane "and a total of 15 pages were copied and paid for at that time."
2 Planning and Development Services' belated secondary argument challenging the specificity of the Carlsons' request lacks merit. Even assuming the Carlsons did not "precisely describe" the records being sought per KRS 61.872(3)(b), which is debatable given that only e-mails relating to a specific piece of property during a specific time period were requested, this office has consistently recognized that a public agency is not permitted to deny a request entirely for that reason per Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008)( a request need only be "adequate for a reasonable person to ascertain [its] nature and scope"), but is permitted to require inspection of any existing potentially responsive documents prior to providing copies per KRS 61.872(3)(a). See 08-ORD-147; 08-ORD-170; 12-ORD-082; 12-ORD-169. The agency's belated assertion that any objection by the Carlsons "almost a year after the alleged omissions by" the agency "should be deemed waived" also finds no support in the Act. Compare KRS 61.846(2).
3 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
4 Upon close scrutiny of the requested hard copies, the undersigned Assistant Attorney General discovered that a significant number of the numerous responsive e-mails would already be in the Carlsons' possession as they either originated from one of three e-mail addresses belonging to Mr. and/or Mrs. Carlson, they were the only recipient(s), or they were among those to whom a copy was forwarded; accordingly, this office asked the Carlsons to clarify whether they wished for us to proceed relative to all responsive e-mails or focus on those not already in their possession. Mrs. Carlson confirmed that she was "interested in emails from other addresses because we have no knowledge of them if they were not accessible yet are non-exempt." Accordingly, our analysis focuses exclusively on e-mails not already in the Carlsons' possession.
5 Due to the high volume of e-mails provided in response to our initial request made under authority of KRS 61.880(2)(c), this office numbered the e-mails prior to removing those already in the possession of the Carlsons; accordingly, the e-mails are no longer in sequence nor do the numbers used to identify the subject e-mails correspond with the actual number of e-mails remaining in dispute.
6 E-mail no. 47, as Planning and Development ultimately advised, seems unresponsive.
7 The Carlsons presumably have said records and may not wish to purchase additional copies; however, the fact remains that KS 61.878(1)(j) does not apply.