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, initiated this appeal by letter dated June 3, 2016, challenging the June 3, 2016, disposition 1 by the Cabinet for Health and Family Services ("CHFS") of her May 16, 2016, request for "all agency records from July 16, 2015 to the present relating to the disposal of fracking sludge sent to Kentucky from Fairmont Brine Processing of Fairmont, West Virginia. " This request included, but was not limited to, "all records of communication between [CHFS] and West Virginia Department of Health and Human Resources and between CHFS and West Virginia Department of Environmental Protection, as well as any monitoring, sampling, or site characterization reports." Assistant Counsel Blake A. Vogt advised Ms. Cromer that "on March 9, 2016 Barbara Maines Whaley, Assistant Attorney General, advised [CHFS] that the Attorney General . . . has opened a criminal investigation into the disposal of fracking sludge waste at the Blue Ridge Landfill in Estill County, and potentially at other landfills. " In order to protect the integrity of the investigation, Mr. Vogt continued, "including the identity of potential witnesses and perpetrators, the Attorney General made a request to [CHFS] that all documentation collected or generated by [CHFS] concerning the disposal of NORM, TENORM or other potentially radioactive waste into any landfill in Kentucky" be withheld from disclosure in response to requests made under the Open Records Act pursuant to KRS 61.878(1)(h), (i), and (j). Mr. Vogt advised that CHFS agreed to honor that request.
CHFS provided Ms. Cromer with a copy of the "Informational Release from the Department for Public Health" dated March 9, 2016, a March 4, 2016, Cease and Desist Operations letter issued to BES, LLC, d/b/a Advanced TENORM, and the Cease and Desist Operations letters issued on March 10, 2016, to Fairmont Brine Processing, Republic Services d/b/a Green Valley Landfill, and Advanced Disposal, d/b/a Blue Ridge Landfill, respectively. On appeal Ms. Cromer argued that any "sensitive information that is material to the Attorney General's criminal prosecution can be and should be segregated and/or redacted." CHFS initially reiterated its original argument, providing a copy of Ms. Whaley's March 9, 2016, e-mail and briefly elaborating upon its position. Under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office subsequently asked CHFS to provide additional information and requested that CHFS provide copies of the records in dispute for in camera review. However, during the pendency of this appeal the Attorney General's Office of Special Prosecutions concluded its criminal investigation and publicly announced that criminal charges would not be filed. Ms. Whaley advised in a letter dated July 18, 2016, submitted in relation to Log Nos. 201600211 and 201600216 (separate but related appeals that Ms. Cromer filed against the Energy and Environment Cabinet, "EEC"), that she was rescinding the nearly identical March 10, 2016, e-mail request upon which EEC had relied as the basis for denial in both cases. In subsequent correspondence between the parties and this office, on or around July 21, 2016, Mr. Vogt confirmed that Ms. Whaley had also communicated that fact to him. Here, as in 16-ORD-167(resolving Log No. 201600211), and Log No. 201600216 (no decision rendered as the records were all ultimately released), "[i]ssues regarding any records that were initially withheld on that basis and then released have been rendered moot per 40 KAR 1:030, Section 6." 16-ORD-167, p. 3.
By letter dated July 27, 2016, CHFS elaborated upon its position relative to records that remained in dispute. The compact disc that CHFS provided for in camera review contained five different folders of records, one identified as "Public," and four identified according to statutory exceptions invoked to justify their withholding. Ms. Cromer asked for "all agency records from July 16, 2015 to the present relating to the disposal of fracking sludge sent to Kentucky from Fairmont Brine Processing of Fairmont, West Virginia[,]" including but not limited to, "all records of communication between [CHFS] and West Virginia Department of Health and Human Resources and between CHFS and West Virginia Department of Environmental Protection, as well as any monitoring, sampling, or site characterization reports." CHFS described any responsive documents that were not made publicly accessible during the pendency of this appeal, i.e. , those not contained in the "Public" folder, and justified its denial regarding those records, in the following manner:
Exempt under KRS 61.878(1)(h), (i) and (j) : CHFS believes these records are exempt as investigation and preliminary notes, recommendations and memoranda in which opinions are expressed. The majority of these e-mails involved correspondence between [EEC] and CHFS' Department for Public Health discussing preliminary matters related to the disposal of TENORM from Fairmont Brine Processing including, but not limited to, request[s] for opinions and recommendations regarding each cabinet's statutes and regulations and opinions as to preliminary plans and sample data.
Exempt under KRS 61.878(1)(i) : CHFS believes these records are exempt as preliminary drafts, notes, and correspondence with private individuals. This category contains preliminary drafts of press releases, statements, and talking points prior to finalization and release, correspondences with private individuals and entities, and preliminary drafts of correspondence/ letters. These records also include emails discussing suggested changes to these drafts.
Exempt under KRS 61.878(1)(i) and (j) Preliminary Data : CHFS believes these records are exempt as preliminary drafts and preliminary recommendations and memoranda which express opinions. These documents in particular are related to preliminary data, data prior to final reports or validation, and the correspondences discussing the preliminary data and sampling events.
Exempt under KRS 61.878(1)(j) : CHFS believes these records are exempt as preliminary recommendations and memoranda in which opinions are expressed or policies formulated. These records include, but are not limited to, correspondences discussing the scope of work for sampling events, preliminary recommendations, opinions and work plans for sampling events, CHFS report memoranda detailing preliminary results and preliminary recommendations and opinions.
Mr. Vogt subsequently confirmed, in response to another inquiry from this office, that CHFS "is moving forward with its own civil action against various parties related to the TENORM issue in Estill Co. and there is some investigation" that is ongoing by CHFS. Our in camera review, conducted under authority of KRS 61.880(2)(c), confirmed that documents remaining in dispute fall within the parameters of KRS 61.878(1)(i) and (j) and were properly withheld given the current status of the agency's investigation. Accordingly, the instant appeal presents no basis to depart from the reasoning found at pages 4-5 of 16-ORD-167 (In re: Mary Varson Cromer/Energy and Environment Cabinet, Department for Environmental Protection, rendered on August 16, 2016)(copy enclosed). Here, as in 16-ORD-167, "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. '" 16-ORD-167, p. 5, citing 13-ORD-138, p. 6.
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 must 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 Ms. Cromer directed her May 16 request to the "Open Records Officer." CHFS advised that Ms. Cromer's request "was received in the Office of Legal Services on June 2, 2016." The record lacks adequate information regarding when the CHFS Records Custodian actually received the request for this office to find that CHFS violated KRS 61.880(1) in failing to respond within three business days; the agency offered no explanation for the apparent delay. There is "nothing wrong with [CHFS's apparent] policy of processing open records requests through its legal department. . . . This policy ensures uniformity and adherence to the law. . . . However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4.