Opinion
Opinion By: Jack Conway,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Warren County Attorney violated the Open Records Act in not invoking specific exemptions in withholding documents. We find that the Warren County Attorney procedurally violated the Open Records Act in failing to invoke specific exemptions in withholding documents.
David O'Brien Suetholz ("Suetholz") submitted an open records request on behalf of the Kentucky AFL-CIO to the Warren County Attorney, Amy Hale Milliken, on Feb. 4, 2015. Suetholz requested:
1. All records of any communication including but not limited to letters, emails from public and personal email accounts, faxes, text messages to public and personal cell phones between you, the Warren County Attorney or any of the employees of the Warren County Attorney to or from any individual or organization not an officer, official, employee or agent of Warren County, including but not limited to, the Bluegrass Institute, the American Legislative Exchange Council, the National Right to Work Committee, the National Right to Work Legal Defense Foundation, the Heritage Foundation, Cato Institute, Doug Stafford, Office of Senator Rand Paul, the law firm English, Lucas, Priest & Owsley LLP, Jason Nemes, the law firm Fultz, Maddox, Hovious & Dickens PLC, Protect My Check Inc., My Check My Choice.org, LLC, Americans for Propserity, Yessin & Associates LLC, Law Offices of Brent W. Yessin, P.A., Brent Yessin, the Bowling Green Area Chamber of Commerce, David Adkisson, the Kentucky Chamber of Commerce or any other entity or individual encouraging or discouraging introduction, enactment, adoption, support for or relating to in any way to local or county right-to-work ordinances;
2. All records detailing any offer, request for proposal, and/or any agreement negotiated and/or entered into by the County to provide or pay for legal services relating to the right-to-work ordinance excluding any records protected by the attorney-client privilege;
3. All records, minutes, and/or final documents detailing sessions, meetings, and/or hearings of the Fiscal Court, County Executive, and/or other County bodies where adopting a right-to-work ordinance was discussed or voted on;
4. All travel vouchers for the Warren County Attorney or employees of the Warren County Attorney to discuss the Right to Work ordinance; and
5. The official calendar of the Warren County Attorney for the month of December, 2014 and January, 2015.
The Warren County Attorney responded on Feb. 5, 2015, stating as follows:
Request Number 1: I have collected all documents in my possession that are responsive to your request and not exempt pursuant to the Open Records law.
Request Number 2: I have nothing in my possession concerning this request. However, the Warren Fiscal Court Clerk should be able to provide you with this information.
Request Number 3: I have nothing in my possession concerning this request. However, the Warren Fiscal Court Clerk should be able to provide you with this information.
Request Number 4: No documents exist concerning this request.
Request Number 5: Pursuant to KRS 61.878, the Open Records exemptions, this request is denied.
Suetholz initiated this appeal on Apr. 10, 2015, on the grounds that the Warren County Attorney's response "is vague and does not comply with KRS 61.880(1)." Suetholz stated that he had "become aware of email correspondence to and from Ms. Milliken regarding right-to-work issues. This correspondence is not mentioned in Ms. Milliken's ORA response. These omissions illustrate a good faith basis to believe that Ms. Milliken does not respect the procedural importance of a response to the ORA . . . ." In support, Suetholz attached several emails. 1 Suetholz argues that the Warren County Attorney "fails to cite the specific statutory exception upon which she relies in denying the request and provides no explanation as to why she did not provide the records requested," and noted that a public agency must provide "a requesting party with sufficient information about the nature of any withheld documents to permit a requester to dispute their characterization. . . . As Ms. Millken cited no statutory exemptions for her refusal to provide records, the Kentucky State AFL-CIO is limited to asking the Attorney General to address procedural issues."
Ms. Milliken responded on Apr. 21, 2015. Ms. Milliken stated that "with regard to Judge Henderson's emails . . . . My search engine did not locate this email during my search pursuant to his request. I had no reason to withhold this email, I just did not find it during my search." Ms. Milliken then stated that "the email from Terry Martin . . . was included in my response to Mr. Suetholz," attaching an affidavit from her administrative assistant in support. Ms. Milliken further stated:
At the same time an open records request was sent to my office, Mr. Suetholz also issued an almost identical open records request to the County Judge Executive in Warren County for the Warren Fiscal Court. This resulted in duplicative requests for the same emails. . . . I, personally, assisted with getting the response together for the County Judge-Executive and provided the emails listed . . . to the County Judge's Office for enclosure. It is certainly a possibility that due to the simultaneous requests, these four emails were included in the County Judge-Executive's response but not included in mine. I apologize for any issue, but this was merely an oversight . . . it should be clear that there was no intent to withhold anything.
Ms. Milliken attached the other open records request and affidavits from County Judge/Executive Mike Buchanon and Deputy County Judge/Executive Marie Smith in support. Ms. Milliken concluded by stating that "I provided everything I had to the County Judge-Executive to provide in the response from Warren County. While it is certainly possible that some emails were included in the County's response and not mine, due to duplicate requests, I certainly did not intentionally withhold anything . . . ."
Suetholz submitted a supplemental response on Apr. 28, 2015. Suetholz argued that "Ms. Milliken's reasoning that she 'just did not find [the email] during [her] search' is in direct contravention to the Spirit and purpose of the Open Records Act. " Suetholz further argued that the Warren County Attorney "is required to adopt rules and regulations that conform to the Open Records Act. . . . One would think that . . . Ms. Milliken would have already taken steps to ensure that any records within her purview that pertain to local 'right to work' ordinances are free from damage and disorganization."
KRS 61.880(1) provides that "an agency 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. " "The agency should provide the requesting party . . . with sufficient information about the nature of the withheld record (or the categories of withheld records) . . . to permit the requester to dispute the claim . . . ." City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013); 14-ORD-181; see also Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. Ct. App. 1996) ("The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."); 14-ORD-195; 09-ORD-186; 04-ORD-198. "A 'limited and perfunctory response,' however, does not 'even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance.'" 11-ORD-180; 06-ORD-114; 04-ORD-183 (quoting Edmonson, 926 S.W.2d at 858).
Here, the Warren County Attorney did not specify any exemptions that would permit the requester to dispute their classification. The Warren County Attorney merely produced "all documents in my possession that are responsive to your request and not exempt pursuant to the Open Records Law" and stated that "pursuant to KRS 61.878, the Open Records exemptions, this request is denied." "In the 'final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his[/her] request, and from the official custodian in providing the records which satisfy the request.'" 12-ORD-065. We do not dispute the Warren County Attorney's good faith in attempting to comply with the request. However, the Warren County Attorney did not invoke any specific exemptions; it merely provided all documents that it claimed were not exempt. The Warren County Attorney's response was thus procedurally deficient in that it did not specifically state the exemptions under which documents were withheld. Accordingly, in failing to invoke specific exemptions in withholding documents, the Warren County Attorney procedurally violated 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.
# 158
Distribution:
David O'Brien SuetholzAmy Hale Milliken
Footnotes
Footnotes