Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Air Pollution Control District and the Office of the Mayor violated the Open Records Act in partially denying Courier-Journal reporter James Bruggers' requests for records relating to a notice of violation issued by the district to Diageo Americas Supply, Inc., in September 2012 and final action taken thereon on July 23, 2013. As The Courier's appeal proceeded, the agencies released additional records to Mr. Bruggers but identified sixteen records for which they claimed continuing exemption based on KRS 61.878(1)(i), (j), and (l), 1 and the attorney-client privilege. We affirm the agencies' denial of Mr. Bruggers' request for these remaining documents.
In separate but nearly identical requests submitted to the district and the mayor's office, Mr. Bruggers requested:
. all written correspondence between Diageo officials or their representatives and APCD enforcement staff, including executive director Lauren Anderson, subsequent to APCD's issuance of violation notices against the company Diageo in September 2012, and the agreement/settlement that was reached and made public in letters dated July 23, 2013, regarding whiskey aging warehouses on Millers Lane; [and]
. all communication between the Mayor's office and APCD regarding the notices of violation, the investigation of Diageo and the agreement that was reached. 2
With reference to written correspondence concerning the notice of violation, investigation, and agreement between Diageo and district staff, and communications between the Mayor's office and the district, the agencies initially advised:
Records of drafts, notes, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . do not reflect notice of an agency's final determination [and] have been withheld as exempt pursuant to KRS 61.878(1)(i) and (j).
Records . . . that are subject to the attorney-client privilege or pertain to settlement negotiations have been withheld as exempt pursuant to KRS 61.878(1)(l), or made confidential by acts of the General Assembly [sic].
Mr. Bruggers thereafter questioned the agencies' position, noting that the district had never denied him "access to records that went into the development of an enforcement action once an agreement between two parties has been reached." 3 Unable to resolve the dispute, The Courier-Journal initiated this appeal.
In its letter of appeal, The Courier focused on the finality of the agreement between the district and Diageo in an effort to undermine the agencies' invocation of KRS 61.878(1)(h). As noted, the agencies withdrew their KRS 61.878(1)(h) argument at the commencement of this appeal. With reference to the remaining exemptions invoked, The Courier questioned the adequacy of the agencies' responses arguing that the responses failed to:
explain which enactment of the Kentucky General Assembly supposedly justifies withholding the unspecified documents they have declined to release . . . [or to] provide any of the detail that would be necessary to satisfy [the] statutory burden of proving that the withheld records actually fall within the claimed exemptions.
It was The Courier's position that the agencies must provide "'sufficient information about the nature of the withheld record (or categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it.'" Citing City of Ft. Thomas at 852.
In supplemental correspondence, the agencies amplified on their position that KRS 61.878(1)(i), (j), and (l) support nondisclosure of the remaining sixteen records. They identified the records as follows:
1. Email dated September 11, 2013, between Thomas Nord, Phil Miller and Ellen Hesen and Lauren Anderson - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
2. Email dated September 7, 2012, between Lauren Anderson, Andrea Wilson, Barry Becton, Ellen Hesen, Mary Weiderwohl and Ted Smith - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
3. Email dated January 31, 2013, between, Ellen Hesen and Stacy Dott - Exempt pursuant to KRS 61.878(1)(l) as attorney-client privilege.
4. Email dated December 11, 2012, between, Ellen Hesen and Stacy Dott - Exempt pursuant to KRS 61.878(1)(1) as attorney client privilege.
5. APCD - Mayor's Report dated August and September 2012 - exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
6. Email dated September 16, 2012, between Lauren Anderson, Ellen Hesen and Ted Smith - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
7. Email dated September 17, 2012, between Ted Smith, Lauren Anderson and Ellen Hesen - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
8. Email dated January 15, 2013, between Lauren Anderson and Ellen Hesen - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
9. Email dated May 14, 2013, between Lauren Anderson and Ellen Hesen - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
10. Email dated May 12, 2013, between Lauren Anderson, Ted Smith and Ellen Hesen - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
11. Email dated January 11, 2013, between Lauren Anderson, Ted Smith and Ellen Hesen - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
12. Email dated December 6, 2012, between Lauren Anderson and Lori Hatton - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
13. Email dated August 6, 2013, between Stacy Dott and Babs Elliot - exempt pursuant to KRS 61.878(1)(l) as attorney-client privilege.
14. Email dated August 6, 2013, between Stacy Dott and Babs Elliot - Exempt pursuant to KRS 61.878(1)(l) as attorney-client privilege.
15. Email dated July 23, 2013, between Chris Poynter, Ellen Hesen, and Mary Weiderwohl - Exempt pursuant to KRS 61.878(1)(i) and (j) as preliminary communications and not final action of the public agency.
16. Email dated July 19, 2013, from Thomas Nord - nonresponsive to records request. 4
Noting that Mr. Bruggers had already received "final letters between Diageo and Metro Government proposing resolution of the violations" and would also receive the only responsive document "pertaining to corrective action or a proposed action plan," the agencies defended the remaining denials:
Drafts of these letters have been withheld due to their preliminary status where such drafts were not adopted, referenced, or included in a final action by the government agency. These documents are preliminary and are communications generated in the course of settlement discussions that remain preliminary and do not reflect the agency's final action. Additionally, such draft documents were provided with the expectation that they would remain confidential. It would be against public policy to deny confidentiality in these situations because confidentiality encourages settlement between the parties.
. . .
[A]ny documents between the Mayor's office and APCD staff that are preliminary in which opinions are expressed, and do not reflect final action continue to be withheld. Additionally, . . . any communications that are between the Mayor's office or APCD and counsel for the government regarding the Diageo matter continue to be withheld as exempt.
Having thus provided sufficient information about the nature of the withheld records to permit assessment of the claimed exemption, we find that the agencies "satisfied [their] statutory burden of proving that the withheld records actually fall within the claimed exemptions" as construed by the courts and this office over time. We therefore affirm their partial denial of Mr. Bruggers' requests.
Our decision turns on the application of KRS 61.878(1)(i) and (j) to the records withheld. 5 Those exceptions authorize nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]
While these exceptions have been repeatedly analyzed over time, little has changed in the mode of analysis since the courts first undertook to do so. Preliminary drafts, notes, correspondence, recommendations, and memoranda in which opinions are expressed or policies formulated retain their preliminary characterization, even after final agency action is taken, unless they are adopted as part of that final action. 6 Accord, Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956-957 (Ky. App. 1983) (recognizing that "documents defined in subsections [(i)] and [(j)] which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records . . .[, but u]nless so adopted and made a part of the [agency's] final action, such documents shall remain excluded under subsection [(i)] and [(j)] of the Act"); see also University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (holding that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). The Court of Appeals reaffirmed this position in November 2013, reversing a circuit court opinion that email exchanged by public employees in anticipation of a scheduled meeting to discuss a matter still in negotiation qualified for protection under KRS 61.878(1)(i) and (j) "and that piecemeal disclosure along the path of the decision making process is not mandatory." University of Louisville v. Sharp, No. 2012-CA-000838-MR, p. 2 (November 22, 2013). To preserve the integrity of a public agency's internal decision making process by promoting full and frank discussion between and among public employees and officials and by equipping them with the tools needed in hammering out official action, "the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality" 7 in pre-decisional records not adopted in that official action.
In 96-ORD-205, this office affirmed the Natural Resources and Environmental Protection Cabinet's 8 denial of a request for records, including records of communication between cabinet personnel and others, relating to a notice of violation issued to a steel coke plant based on the presence of hazardous waste and contaminated soil at the plant. At page 4 of that decision, we recognized that disclosure of communications "of this nature would chill the free flow of information between the component parts of the Cabinet" restraining Cabinet officials "from theorizing, questioning, hypothesizing, or commenting in regard to their assigned duties for fear of having their drafts, notes, and preliminary comments thrown into the public arena as if they were 'final action of a public agency. '" The Cabinet had taken no final action when the appeal that resulted in 96-ORD-205 was filed, but the analysis in 96-ORD-205 applies with equal force to the appeal before us. The agencies, having taken final action on the notice of violation issued to Diageo Americas Supply, Inc., in July 2013, reviewed the remaining documents through the prism of that action and determined that the sixteen records withheld were not adopted as part of that final action. Our inspection of the records, under authority of KRS 61.880(2)(c), confirms the agencies' position. Compare 02-ORD-097, p. 8 (post-decisional communication relating to compliance measures do not enjoy protection under KRS 61.878(1)(i) and (j) since it is "not in the nature of pre-decisional expression of opinion or formulation of policy . . . but is instead a record or accounting of compliance measures . . . [and] 'agreed-upon action . . .'"). We therefore affirm the agencies' partial denial of Mr. Bruggers' requests. Whatever their past practice has been relative to post-agreement disclosure of "records that went into the development of an enforcement action, " the agencies properly relied on KRS 61.878(1)(i) and (j) in withholding those sixteen records not adopted as part of the action in this appeal.
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.
# 375
Distributed to:
Jon L. FleischakerDee AllenBrianda Rojas
Footnotes
Footnotes