Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Staff Attorney Mary Varson Cromer, Appalachian Citizens' Law Center, Inc., initiated this appeal by letter dated May 9, 2016, challenging the April 18, 2016, denial by the Energy and Environment Cabinet, Department for Environmental Protection ("Department") of her April 13, 2016, request for "[a]ll agency documents, including correspondence, testing results, compliance plans, [and] RSSI results, related to [Notice of Violation or "NOV"] issued to Advanced Disposal Services in early March 2016" 1 and "[a]ll correspondence between [the Department] and US EPA regarding the same." Administrative Section Supervisor Brandon Bruner advised Ms. Cromer that "there is an investigation being conducted and any records related thereto are exempt by KRS 61.878(1)(h), KRS 61.878(1)(i), and KRS 61.878(1)(j)." Citing Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 88 (Ky. 2013)(citing KRS 61.878(4) and holding that "blanket denials of ORA requests" are not permitted), Ms. Cromer argued that the Department's "blanket denial of materials requested under the ORA is unlawful."
The Department responded within three business days and cited the statutory exceptions being relied upon per KRS 61.880(1), but failed to provide any explanation of how the cited exceptions applied to records being withheld as that provision and KRS 61.880(2)(c) require. A public "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 language of KRS 61.880(1) "directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," the Court emphasized, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. The Department violated KRS 61.880(1) in failing to provide any explanation of how the cited exceptions applied to records being withheld. See 16-ORD-039. However, the Department cured this deficiency on appeal by providing the records in dispute for in camera review by the Office of the Attorney General ("OAG") per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and explaining how KRS 61.878(1)(i) and (j) apply to said records. 2
The supplemental correspondence began with Assistant General Counsel Daniel Cleveland's May 25, 2016, appeal response on behalf of the Department, included our KRS 61.880(2)(c) request on June 13, 2016, and the Department's response thereto, and culminated on July 28, 2016, when the Department provided this office with a compact disc on which records that remained in dispute following conclusion of the OAG's criminal investigation were separated into 11 folders (containing anywhere from a single file to more than 200). Both parties are in possession of all relevant correspondence. The Department ultimately advised on appeal that Ms. Whaley's request to withhold all responsive documents from disclosure was the "primary reason" for its complete denial of Ms. Cromer's April 13 request. Issues regarding any records that were initially withheld on that basis and then released have been rendered moot per 40 KAR 1:030, Section 6.
However, the Department also elaborated upon its position regarding KRS 61.878(1)(i) and (j) relative to its own "investigation and response into the alleged illegal disposal of technologically enhanced naturally occurring radioactive material (TENORM) at the subject landfill." Despite continued settlement efforts, the Department and ADS "have yet to finalize terms of an agreement. Therefore, no final agency order has been issued. Until settlement is reached or a formal administrative hearing is held pursuant to KRS 224.10 -- 420, there has not been a final agency action with respect to the investigation and alleged violations." The Department advised that many of the records being withheld for this reason are e-mails and include, for example, "communications with sister agencies in Kentucky, Ohio, and West Virginia to coordinate the investigation" and "internal deliberations in which opinions are expressed and recommendations are made from agency staff to management." Because TENORM is also subject to a regulatory scheme under the purview of the Cabinet for Health and Family Services ("CHFS"), the Department observed, "a substantial amount of coordination between the agencies has occurred." 3 In this case, "the final agency action at issue is the remediation of the TENORM waste, which has not been determined." The ability of agency staff to freely communicate, express opinions, and provide recommendations to management, "is vital for the agency to effectively evaluate its final action. "
"Despite its manifest intention to enact a disclosure statute, 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)]." 4 Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577-578 (Ky. 1994); 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 KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (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 unless those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded under subsections [(i)] and [(j)] of the Act"); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); see 99-ORD-220; 11-ORD-052.
The Kentucky Court of Appeals reaffirmed this controlling line of authority in University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013)(holding that e-mails between public employees prior to a scheduled meeting that was being held to discuss a matter still under negotiation qualified for protection under KRS 61.878(1)(i) and (j) as "piecemeal disclosure along the path of the decision making process is not mandatory"); see 02-ORD-18 (holding that witness transcripts and investigative summaries fall within KRS 61.878(1)(i) and (j), "unless adopted . . . as the basis of final action" as the Attorney General is "not prepared to read into [the case law], a distinction between records within the investigative file that the Court of Appeals did not make in [ City of Louisville ]"); 14-ORD-024. 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.; 14-ORD-230.
Significantly, in 96-ORD-205 this office affirmed the denial by the Energy and Environment Cabinet (then identified as the "Natural Resources and Environmental Protection Cabinet") of a request for certain documents, including a multimedia inspection report, preliminary copies of laboratory reports, and records of communications between Cabinet personnel and others, relating to a NOV issued to A.K. Steel Coke Plant for violations of KRS Chapter 224 based on the presence of hazardous waste or benzene contaminated soil at the Plant. Id., p. 1. This office agreed 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. '" Id., p. 4; 14-ORD-014.
This office is not permitted to reveal the content of the records provided for in camera review per KRS 61.880(2)(c). Given the information that was ultimately provided on appeal regarding the current status of the Department's administrative investigation regarding the subject NOV, the instant appeal presents no basis to depart from the line of controlling legal authority outlined above, pursuant to which the documents remaining in dispute "retain their preliminary characterization unless adopted, in whole or in part, as the basis of the agency's final action. " 13-ORD-138, p. 6; 08-ORD-098; 15-ORD-173. The denial is affirmed on the bases of KRS 61.878(1)(i) and (j).
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.
Footnotes
Footnotes
1 The referenced NOV, a copy of which is of record, was issued to "Advanced Disposal Services ["ADS"] Blue Ridge Landfill Inc." on March 8, 2016.
2 Upon receiving notification of Ms. Cromer's appeal, the Department relied upon the March 10, 2016, e-mail of Assistant Attorney General Barbara Maines Whaley in support of its reliance on KRS 61.878(1)(h). Ms. Whaley advised that "the [OAG] has opened a criminal investigation into the disposal of radioactive waste at the Blue Ridge Landfill in Estill County, and potentially at other Kentucky landfills," and requested that "all documentation collected or generated by [the Department] concerning the disposal of TENORM or other radioactive waste into any landfill in Kentucky" be withheld in response to requests made under the Act in order to "protect the integrity of the investigation, including the identity of potential witnesses, and perpetrators." While this appeal was pending, the Attorney General's Office of Special Prosecutions concluded its criminal investigation and publicly announced that criminal charges would not be filed. Accordingly, Ms. Whaley advised in a letter dated July 18, 2016, that "the request to EEC to deny requests for Open Records pending the criminal investigation is rescinded." The Department subsequently confirmed that all responsive documents except for those pertaining to its ongoing administrative investigation were being released. Accordingly, our decision focuses exclusively on the propriety of the agency's denial regarding those records.
3 The Department cited KRS 61.878(5) and Baker v. Jones, 199 S.W.3d 749, 752-53 (Ky. App. 2006), both of which validate its position that coordination between public agencies in this manner does not result in a waiver of applicable statutory exceptions.
4 Among the public records that may be excluded from public inspection in the absence of a court order are documents identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.