Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Russell Carollo initiated this appeal by letter dated April 21, 2016, challenging the disposition by the Office of the Attorney General ("OAG") of his March 31, 2016, request for "access to and copies of all records since Jan. 11, 2011, related in any way to Deloitte and/or Deloitte Consulting." Mr. Carollo's request "includes but is not limited to, all records of contracts, payments, audits, complaints, reports, and reviews of any kind." In addition, the request "includes, but is not limited to, all other public records request letters seeking any information related in any way to or otherwise identifying Deloitte, all other communication related to the requests, and all responsive materials provided to requesters. " Mr. Carollo further asked the OAG to "[i]nclude information contained in the material that otherwise would be considered non-responsive to the specific request. Please exercise your discretion and release information that could be considered technically exempt. " 1
The OAG received Mr. Carollo's request on April 8, 2016, and Executive Director Benjamin Long, Office of Consumer Protection, issued a timely written response per KRS 61.880(1) on behalf of the OAG on April 13, 2016. Mr. Long confirmed that "pursuant to our telephone conversation on April 12, 2016," the OAG has a number of IRS Form 990s "for unrelated charities or businesses which were prepared by Deloitte, but do not concern Deloitte in any way." Accordingly, the OAG deemed the Form 990s non-responsive and indicated those records would not be produced; likewise, Mr. Long advised that "a number of emailed newsletters received by our office which contain only a short reference that Deloitte was in the news" were deemed non-responsive and thus not produced. The OAG declined to produce "certain documents" that were generally described as "preliminary recommendations and/or preliminary memoranda in which opinions are expressed or policies formulated or recommended, and are therefore exempt from disclosure pursuant to KRS 61.878(1)(j)." Citing KRS 447.154, CR 26.02, and KRE 503, incorporated into the Act by operation of KRS 61.878(1)(1), Mr. Long advised that "[t]hese documents fall within the work product and attorney-client privileges, including but not limited to the common interest rule or doctrine relating to those privileges." 2
On appeal Mr. Carollo first argued that Mr. Long's response "did not specifically identify withheld materials, and, in addition, no segregable portions were produced." Mr. Carollo next asserted that Mr. Long's response was deficient as it "specifically identified non-responsive materials that were withheld, yet no legal exemptions were cited." In responding to Mr. Carollo's appeal, Mr. Long asserted that his response "sufficiently described the category of records and included the applicable exemptions. " 3 In addition, Mr. Long advised that no segregable portions were provided, as otherwise required under KRS 61.878(4), because the documents are protected in their entirety. Mr. Long explained that "these twelve (12) records include email correspondence among attorneys within the [OAG] or working with the [OAG] on matters of common interest, attorney research, and work product created by or at the direction of attorneys in the course of investigation and litigation." None of these records "give notice of a final action of a public agency, " he continued, "nor contain communication with anyone not in privilege with the [OAG] in regard to the matter contained therein." The records were created "by attorneys or at the direction of attorneys and contain opinions, mental impressions, and strategy of attorneys within the [OAG] or those working in common interest with them." No portion of any of the records has been previously disclosed to a third party.
Mr. Long also correctly observed that when the material is non-responsive, the public agency is not required to cite a statutory exception to justify its denial. To the extent Mr. Carollo was asserting that his request "was improperly interpreted to exclude these records . . ., the request would lack the requisite specificity for the agency to respond." The OAG "interpreted the request for all records ' . . . related in any way to Deloitte and/or Deloitte Consulting' to have a plain meaning of 'related' requiring some bearing on the entity Deloitte. If Mr. Carollo intended 'related to' to have no limitation then the request is not sufficiently specific." Citing a line of prior Open Records Decisions, Mr. Long argued that such a request would not satisfy KRS 61.872(3)(b) and would have been denied on that basis. Nevertheless, the OAG called Mr. Carollo upon receiving the Notification of his Open Records Appeal, "in an attempt to clarify and provide whatever non-exempt records he is attempting to obtain." Mr. Carollo declined to narrow the scope of his request during the call on April 28, 2016, advising that he preferred to communicate by e-mail. Accordingly, Mr. Long sent an e-mail documenting their conversation and requesting that Mr. Carollo confirm that he was not seeking the Form 990s, which a number of charities have filed with the OAG, and which Deloitte prepared on behalf of the charity in each case, as there is "no connection or interaction between [the OAG] and Deloitte as to these documents." To the extent he was asking for contracts between Deloitte and the Commonwealth of Kentucky, the OAG "is not the custodian of those contracts, if any exist."
Per Mr. Long's request, Mr. Carollo confirmed receipt of his April 28, 2016, e-mail by letter dated April 30, 2016. Mr. Carollo advised that Mr. Long could "exclude 990s." Even if the OAG is "not the custodian of the contracts," Mr. Carollo continued, "we still seek all records in the [A]ttorney [G]eneral's possession regarding contracts." By e-mail dated May 2, 2016, Mr. Long reiterated that the OAG does not possess any contracts with Deloitte "or documents concerning contracts between our office or any agency of the Commonwealth and Deloitte." The OAG is "not the custodian of any contracts with Deloitte, nor is it otherwise in possession of any contracts with Deloitte." Per KRS 61.872(4), Mr. Long notified Mr. Carollo that the Kentucky Finance and Administration Cabinet "may have information concerning contracts between Deloitte and the Commonwealth, if any such contracts exist" and provided him with contact information for that agency. Mr. Long reiterated on appeal that the OAG does not have any "contracts or documents regarding contracts." The record lacks any evidence to refute the agency's position that no such contracts exist in the possession or custody of the OAG. A public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 4 07-ORD-190, p. 6.
Relying upon the analysis of KRS 61.872(3)(b) found in 16-ORD-082 (In re: Russell Carollo/Office of the Attorney General, rendered May 2, 2016), and the authorities upon which that decision is premised, this office affirms the agency's denial of Mr. Carollo's broadly framed request. "As Mr. Carollo resides in Colorado, and requested an estimated total cost prior to the fulfillment of the request," here, as before, this office interprets the subject request as being a request for copies. 5 16-ORD-082, p. 5. In relevant part, KRS 61.872(3)(b) provides that a "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.) Mr. Carollo requested all records generated within a five-year period related " in any way " to Deloitte or Deloitte Consulting; his request included but was " not limited to, all records of contracts, payments, audits, complaints, reports, and reviews of any kind ." (Emphasis added.) In addition, the request included, but was " not limited to, all other public records" asking for information "related in any way to or otherwise identifying Deloitte" and the related communications and materials. (Emphasis added.) Finally, Mr. Carollo asked the OAG to include "material that otherwise would be considered non-responsive. "
This request is even less precise than a request for "all records related in any way to Purdue Pharma L.P.,"(deemed too imprecise to receive copies by mail in 16-ORD-082), as illustrated by the fact that records, for example, such as IRS Form 990s prepared by Deloitte for third parties were encompassed given how broadly the request was framed. Accordingly, the following excerpt from pages 5-6 of 16-ORD-082 is controlling:
. . . "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.
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-that-relate 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, "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.
16-ORD-082, pp. 5-6; see 13-ORD-077; 15-ORD-086. Because Mr. Carollo did not "precisely describe" the records being requested, as required to receive copies by mail, the OAG did not violate the Open Records Act in denying his request. Insofar as Mr. Carollo's request was primarily intended to include contracts or agreements, the OAG ultimately indicated that no such records exist and complied with KRS 61.872(4) by referring him to another state agency in whose custody such records would presumably reside. The denial is affirmed.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.
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