Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the London City Council and London Utility Commission violated the Open Records Act in the disposition of Sentinel-Echo staff writer Rob McDaniel's April 8, 2015, request for "any and all documents relating to the proposal in princip [le] between the London Utility Commission and the U.S. Army Corps of Engineers discussed and voted upon in the Monday, April 6, 2015 London City Council meeting." For the reasons that follow, we find no violation of the Act.
Mr. McDaniel's request was addressed to London Mayor Troy Rudder. On April 13, 2015, the day the request was received, City Attorney Larry G. Bryson replied as follows:
On behalf of Mayor Rudder, we are denying this request for the following reasons:
1. Blanket Request. A request for "any and all document" as you have made is a "blanket request" for documents. The Kentucky Office of the Attorney General has consistently recognized that blanket requests for information on a particular subject need not be honored. [Citations omitted.]
2. The Action was not final. This action by the City Council is not final. The documents that have been exchanged are preliminary in nature. No final decision has been made at this time. KRS 61.878(1)(i) excludes "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and KRS 61.810(1)(h) 1 [ sic ] excludes "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[;]" have been interpreted to authorize nondisclosure of preliminary reports, worknotes, and memoranda containing the opinions, observations, advice, and recommendations of personnel within an agency. [Citations omitted.] These subsections are intended to insure the integrity of the decision making process by protecting all pre-decisional documents. Documents which fall within the parameters of these exceptions retain their exempt status unless they are adopted as final agency action. [Citation omitted.]
3. Threatened Litigation and Attorney Client Privilege Information. As you know since you attended the meeting, the Council went from the open meeting of the Council under the exception of Open Meetings Statute to discuss threatened litigation (per KRS 61.810(1)(c)). The documents that you have requested contain opinions, mental impressions and legal theories of undersigned counsel in his representation of his client (the City and London Utility commission) and discussion with his client. KRS 61.878 itself contains an exception for the attorney client privilege ?
On April 15, 2015, Sentinel-Echo Managing Editor Mike Moore appealed to this office, stating his position as follows:
On April 6, 2015, the London City Council ? adjourned into executive session to discuss proposed or pending litigation. The executive session lasted about 45 minutes. Afterward, the council came out of executive session, and it reentered its regular session. At that time, City attor[ne]y Larry G. Bryson made the following statement: "If you all are in agreement, someone should make a motion to upon the recommendation of the London Utility Commission to authorize the city attorney to accept in principle the proposal from the Army Corps of Engineers."
After the meeting, Sentinel-Echo reporter Rob McDaniel asked for a copy of the proposal. At that time, he was denied by Bryson, who said the city has been negotiating the agreement for several years, and Bryson added, "I can't say much about it at this point."
This newspaper subsequently [requested] a copy of the proposal that the London City Council unanimously voted to approve during the April 6, 2015 meeting.
?
Does a vote by a public agency agreeing to a proposal in principle constitute final action and should the public be able to have access to the proposal?
This newspaper feels that the action taken that night indicates final action by the London Utility Commission, which falls under the City of London's umbrella of authority. Therefore, the requested documentation should be open to the public.
?
[I]f the city attorney feels there is some privileged information, then he could redact that areas [ sic] he feels privileged.
The City Attorney responded to the appeal on April 23, 2015, elaborating on the three arguments as follows:
1.) The request was over a blanket request for "any and all documents" relating to the proposal. This is an overly burdensome request as this is an issue that has been ongoing for over ten (10) years and negotiations have been continuous throughout. ?
2.) The action is not final. The City Council voted on a proposal "in princip [le]", a proposal has not officially been presented at this time and therefore there is no actual settlement proposal for the City of London to provide at this time. This discussion took place in closed session, the vote of the Council was essentially to allow me, as City Attorney, to continue with negotiations and move further with settlement discussions. This is not "final action" by the City as the Sentinel Echo suggests. [Citations omitted.]
3.) The request for document pertains to threatened litigation and attorney/client privileged information. As I mentioned previously, this issue has been ongoing for over ten (10) years with litigation being a continued threat, the Council went into Closed Session to discuss this under the exception. Discussions have taken place between me and numerous attorneys with the Army Corp[s] of Engineers and the Department of Justice. All of the Correspondence has been confidential and in the matter of settlement discussions and was made with understanding that it would not be shared with anyone other than our respective clients. These documents are attorney client privileged documents and information that I have exchanged with my client from the settlement discussions. ?
Mr. Bryson further states:
Opposing counsel and I have both been very particular that ALL of our settlement discussions and documents exchanged in support of our position may only be disclosed to our respective clients/parties. He and I think we may have a possible resolution of the dispute; he asked that I get approval, "in princip [le]" to the proposal; at this time, we do not even have exact settlement figures. After I received approval from the City Council in princip [le] to the proposal, I notified him and he is getting approval from those who must approve, in princip [le], the proposal and then , we will be able to discuss the specifics of the settlement terms. ? [T]he vote by the City Council to agree in princip [le] to the proposal that had been made was to give me the direction that settlement discussion could proceed and counsel for the opposing party is seeking the same approval from those he represents; if we do not settle this matter, it will be litigated. ? Disclosure of this information (their request was "...any and all documents..." will jeopardize the settlement discussions and is contrary to my agreement with opposing counsel.
(Emphasis in original.) We address first Mr. Bryson's argument that the request for records was excessively vague.
It is not clear from the terms of Mr. McDaniel's request whether he was asking to inspect the records or to receive copies by mail. With regard to requests to receive copies by mail, KRS 61.872(3)(b) provides, in pertinent part:
The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.) "[T]he primary purpose of the [Open Records] Act is making records available for public inspection? If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 95-ORD-108. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
Accordingly, we have often held that "blanket requests for information on a particular subject need not be honored. " OAG 90-83; see also 95-ORD-108 and opinions cited therein. Thus, we held that a request to the City of Louisville for "all items pertaining to UPS and the airport expansion" was properly denied for lack of specificity. OAG 91-58 (emphasis omitted). Similarly, a request for "[a]ll memoranda, correspondence and/or documentation of whatever kind and nature regarding [a certain employee] not included in her personnel file" was insufficiently specific. OAG 90-83. 2
This standard of precise description for records by mail is generally not met by what has been described as the "open-ended any-and-all-records-thatrelate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. Furthermore, as the agency's response pointed out, "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ? generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14.
In 00-ORD-79, we found that a request for copies of "[a]ny and all records related to the granting of easements by the City of Indian Hills to its property owners for the purpose of connecting to any MSD sewer line ? from January 1, 1990 to January 1, 1999" was properly denied for lack of a precise description:
Mr. Mabry provided information that the number of properties that received easements was small and limited the timeframe of his records request. However, he did not identify the records that he wanted copied in definite, specific, and unequivocal terms. Unless he can describe the records he seeks with precision, the City is not obligated to search through its records for "any and all" records that may relate to his request.
Here, the request was for " any and all documents relating to the proposal in princip [le] between the London Utility Commission and the U.S. Army Corps of Engineers discussed and voted upon in the Monday, April 6, 2015 London City Council meeting" (emphasis added), which is no more precise a description than was given in 00-ORD-79.
Although Mr. Moore argues that the request "was not vague, but rather it was specific to the information we are seeking," we note that he did not specify an identifiable class of records, nor did he limit the request to a particular period of time. If the request was meant to be for copies by mail, the City and the Utility Commission did not violate the Open Records Act by requiring greater specificity. Furthermore, where a person does not reside or have a principal place of business outside the county where the records are located, there is no right to receive copies by mail. KRS 61.872(3)(b).
The following analysis applies to the extent that Mr. McDaniel's request was for inspection of the records as opposed to mailed copies. A final settlement agreement to which a public agency is a party is, absent extraordinary circumstances, a public record subject to public disclosure. See, e.g. , 15-ORD-001. Nevertheless, under the facts as described by Mr. Bryson, we find that the "agreement in principle" to settle the ongoing legal dispute does not constitute final agency action.
In an appeal decided by this office in 2004, Murray State University had reached an agreement to settle a lawsuit on the eve of trial, but no final settlement agreement had yet been executed. Although the trial had been cancelled, we found that the settlement had "not been finalized by the execution of [an agreement] and the dismissal" of the pending action. Recognizing that "records relating to the settlement ? have been, and are being, created in the inchoate period leading up to the execution of the final settlement agreement," we ruled that no formal settlement had yet been executed and the matter remained in a preliminary stage. In so concluding, we noted that "MSU has fully demonstrated that the need for confidentiality of preliminary matters relating to the settlement ? will exist until a formal settlement is executed and the case dismissed." 04-ORD-030 (copy attached).
Similarly, the City and the Utility Commission in the present appeal have effectively articulated the ongoing need for confidentiality until a final settlement of the current dispute is executed. Moreover, based on Mr. Bryson's representations, the City's dispute is at a significantly earlier stage in the settlement process than the MSU action was in 04-ORD-030, since the parties did not actually reach an agreement at the city council meeting; rather, at best, the council authorized Mr. Bryson to propose certain terms to the other side and "continue with negotiations. " Accordingly, we deem 04-ORD-030 controlling in this case and, adopting its reasoning, conclude that records relating to the potential settlement of this dispute retain a preliminary character under KRS 61.878(i) and (j). Therefore, we deem the issue of attorney-client privilege to be moot at this time and find no violation of the Open Records Act.
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 proceedings.
Footnotes
Footnotes
1 The intended reference is obviously to KRS 61.878(1)(j).
2 To whatever extent our prior decisions may have applied a "reasonable particularity" standard to requests for on-site inspection of records, they have been implicitly overruled by Com. v. Chestnut, 250 S.W.3d 655 (Ky. 2008). Our analysis here is concerned with requests for copies by mail under KRS 61.872(3)(b).