Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Energy and Environment Cabinet ("EEC") violated the Open Records Act in withholding internal emails and parts of emails as preliminary and attorney-client privileged. We find that EEC violated the Open Records Act in withholding internal emails and parts of emails as preliminary and attorney-client privileged.
Background
Cathy Goguen submitted an open records request to EEC by email on June 24, 2016. Goguen's request stated:
A prior open records request for any and all documents or emails related to an ADA complaint (including from David Shivel, the woman who was with him on the investigation to 49 Spring Ave Barbourville who was not identified to me at the visit and documents of Sherry Butler) and ADA report issued by Nina Hockensmith still have not been received.
On June 29, 2016, Goguen sent a follow-up email to EEC, in which she requested an update on the status of her request for "any and all emails records, reports to Nina Hockensmith from David Shivel, Ms. Sproles or Sherry Butler or anyone associated with the ADA investigation on April 20 to my home on 71 Spring Ave, Barbourville KY 40906."
EEC responded to the request by email on June 29, 2016, stating that "DEP is still conducting a search for the requested information and will be compiling the records responsive to your request. . . . We anticipate being able to send you all applicable, non-exempt records by Friday, July 8th, 2016." Goguen responded on June 29, 2016, that she "actually requested first in May and have yet to receive them. cathy goguen To add to my previous request, please send me any and all correspondence from Jennifer Spradlin and Eric (sp) Eisemlinger and David Shivel Incident 2411071 received date 5/4/2016."
Goguen initiated this appeal on June 29, 2016, 1 stating that EEC "failed to provide me records in a timely manner and have not released all records requested as of this date." 2 EEC responded to the appeal on July 11, 2016, stating:
Since April 20, 2016, the Cabinet has responded to Open Records Requests from Ms. Goguen on eleven occasions. The eleven responses were related to nineteen requests, most in the form of emails . . . . These responses resulted in at least 312 individual documents being provided to Ms. Goguen since April 20, 2016. . . .
. . . In the documents received with Ms. Goguen's appeal, the only written response to Ms. Goguen from the Cabinet is an excerpt from a June 29, 2016 email from Brandon Bruner . . . . Therefore, the Cabinet's discussion of this matter will focus on that response. 3
. . . On June 30, 2016, the Cabinet produced the responsive, non-exempt documents by email to Ms. Goguen. . . . The Cabinet requests that this appeal be dismissed as moot.
EEC attached an email to Goguen dated June 30, 2016, in which it stated:
The documentation will be compiled in attachments sent through our secure internet based website . . . . Once you log in, you will be able to view all responsive, non-exempt documentation related to your request. There were 115 corresponding documents that were exempt pursuant [sic] KRS 61.872(1)(i) and KRS 61.872(1)(j) relating to internal/attorney client confidentiality.
EEC also attached a July 8, 2016, email in which Goguen responded to the June 30, 2016, email from EEC, in which she stated that:
I filed originally because they were not providing records in a timely fashion and I feel they violated the Open Records requests by not providing within the correct timeframe but then also now in withholding documents they used to write an official report which was from Nina Hockensmith ADA Compliance officer for DEP.
In response to Goguen's July 8, 2016, email, EEC stated that:
The vast majority of the documents for which the exemptions were claimed were emails between and amongst employees of the Cabinet. Those internal emails include discussions primarily categorized into three groupings: (1) emails related to processing of open records requests, (2) emails related to procedures for processing and investigating her complaint related to the her [sic] alleged ADA violations, and (3) emails regarding procedures related to the investigation of Goguen's complaints related to the car painting business located next to her home. These emails were not, "used to write an official report which was from Nina Hockensmith ADA Compliance Officer for DEP." . . . The vast majority of these documents were simply not responsive to that request.
Even if those emails were responsive to the request at issue in this appeal, many would likely be exempt from disclosure as, "[t]here must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision." . . . Additionally, some of the emails constituted communications with attorneys for the Cabinet and are, thus, privileged. . . .
In addition . . ., narrative statements of employee(s) were collected during the investigation into Goguen's allegation under the ADA. The Cabinet asserts that those statements are also exempt from disclosure under the aforementioned provisions.
On July 26, 2016, this office requested to review the documents for which EEC claimed exemptions, and asked whether any final agency action had been taken. EEC responded on Aug. 2, 2016, stating that "regarding the ADA complaint made by Ms. Goguen, the May 27, 2016, letter to Ms. Goguen from Nina Hockensmith indicating that 'there does not appear to be any ADA violation' represented the Cabinet's conclusion on that matter. No further action will be taken by the Cabinet related to that matter." EEC provided the documents in three folders. It described the first folder as containing "internal emails" and claimed the preliminary documents exceptions. It described the second folder as "internal emails" and claimed and the preliminary documents exceptions and attorney-client privilege. It described the third folder as "documents which are attachments to some of the emails. 4
I. Preliminary Documents Exemptions
Regarding EEC's assertion of the preliminary documents exceptions, KRS 61.878(1)(i) exempts from the Open Records Act "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 61.878(1)(j) exempts "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." However, "conversational-type e-mail communications such as statements containing factual information, but which are devoid of recommendations, opinions, or policy formulations, are not exempt under KRS 61.878(1)(i) and (j)." 05-ORD-210. "This category of emails consists of non-policy fact-based communications. Examples include a work order for repairs to an office, a thank-you note, a request for review and signature, an update on the status of a project, a thought for the day, and a vacation announcement. . . . These records must be disclosed." 05-ORD-144. Additionally, although KRS 61.878(1)(i) exempts "correspondence with private individuals," this exemption "is generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 05-ORD-144. "Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action . . . ." 07-ORD-181.
KRS 61.878(4) provides that "if any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." While we cannot disclose the contents of the emails requested for in camera inspection under KRS 61.880(2)(c), the vast majority of the emails in folder 1 appear to be internal emails consisting of purely factual communications, 5 and are devoid of recommendations, opinions, or policy formulations. Many of them also contain Goguen's emails, forwarded for notification. As Goguen's emails themselves are not correspondence with private individuals under an expectation of confidentiality, but emails sent requesting agency action, they do not qualify under KRS 61.878(1)(i). With a few exceptions, 6 the internal emails in folder 1 do not qualify as preliminary documents under the exceptions in KRS 61.878(1)(i) and (j). Accordingly, in withholding internal emails and parts consisting of purely factual communications, EEC violated the Open Records Act.
IV. Preliminary Documents and Attorney-Client Privilege
Regarding EEC's assertion of the preliminary documents exceptions and attorney-client privilege for some of the emails, KRS 61.878(1)(l) exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." "The attorney-client privilege attaches to a confidential communication 'made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]; the client, the client's representatives, the lawyer, or the lawyer's representatives.'" The St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 776 (Ky. 2005). "The protections generally afforded by the attorney-client privilege have been recognized and incorporated into the statute by the Kentucky General Assembly." Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. Ct. App. 2001). "The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. " Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).
However, "the attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions." Commonwealth, Cabinet for Health and Family Servs. v. Scorsone, 251 S.W.3d 328, 330 (Ky. 2008). "KRE 503(b) only applies when . . . all three of the following elements are present: 1) relationship of attorney and client; 2) communication by or to the client relating to the subject matter upon which professional advice is sought; and 3) the confidentiality of the expression for which the protection is claimed." 12-ORD-075. "Information itself is not protected by the privilege simply because it may have been conveyed to counsel." Wright v. Firestone Tire & Rubber Co., 93 F.R.D. 491, 493 (W.D. Ky. 1982). "The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney." Upjohn, 449 U.S. at 395. If a document is not initially privileged, but is subsequently communicated to a lawyer for the purposes of legal advice, the communication to the lawyer is privileged, but the underlying document itself is not. 7
The emails provided by EEC in folder 2 all were either sent to or copied to EEC's lawyers at some point. With three exceptions, 8 the emails contain information on which counsel was asked to give legal advice, but the information advised upon was also independently available prior to being sent to counsel. The parts containing counsel's advice and the information upon which that advice was rendered are exempt. However, to the extent the information in those emails is independently available prior to being sent to counsel, it is not privileged. 9 Accordingly, in withholding emails and parts of emails as preliminary and attorney-client privileged, EEC violated the Open Records Act. 10
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 must 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 Goguen's appeal was dated June 20, 2016, but was received by this office by fax on June 29, 2016.
2 Goguen included what appear to be her summaries of her requests. One summary stated:
To add to my previous request, please send me any and all correspondence from Jennifer Spradlin and Eric (sp) Eisemlinger and David Shivel.
Incident 2411071 received date 5/4/2016: David Shivel has been tasked to Assign a Complaint Inspector with due date 5/5/2016
Incident 2410553 received date 4/21/2016: David Shivel completed task Review/Approve Environmental Closure on 5/2/2016
Incident 2410217 received date 4/13/2016: David Shivel completed task Review/Approve Environmental Closure on 4/18/2016.
Incident 2409538 received date 3/24/2016: David Shivel completed task Review/Approve Environmental Closure on 4/18/2 [sic]
Also any and all complaint reports concerning T & B auto at 49 Spring Ave Barbourville, KY 40906.
Another summary was identical except for the addition of "additionally any and all reports from Diana Davidson, Sherry Butler and Nina Hockensmith."
3 EEC notes in its response to this appeal that "Ms. Goguen's piece-meal approach to requesting records has made responding to her requests difficult." EEC is correct that "piecemeal disclosure along the path of the decision-making process is not mandatory." Univ. of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. Ct. App. 2013). Since Goguen added another request on June 29, 2016 and appealed on that same day, EEC is not obliged to respond to the additional request in the context of this appeal, but appears to have done so anyway in a good faith attempt to resolve Goguen's requests. Goguen is encouraged to properly separate her open records requests in order to allow an agency time to properly respond to them. Goguen is also encouraged to keep actual copies of her requests and agency responses, and not just her summaries of them. See KRS 61.880(2)(a); 40 KAR 1:030 § 1.
4 Under 40 KAR 1:030 § 3, those documents have been destroyed concurrent with the issuance of this decision.
5 One email chain in folder 1 contained communications with an attorney, and has been accordingly analyzed as part of folder 2, for which EEC claimed attorney-client privilege.
6 Specifically, the emails in folder 1 are analyzed as follows:
- Email from Robert Thorne to Nina Hockensmith dated Apr. 20, 2016, 3:51 PM: The email appears in a chain culminating in an email from Hockensmith to Scott Bruce and Aaron Keatly dated Apr. 22, 2016, 3:19 PM. Thorne's email contains a recommendation and is therefore preliminary. The remainder of the emails in the chain are not exempt.
- Email from Laura Sproles to Hockensmith dated May 4, 2016, 10:11 AM: The email contained a draft statement as an attachment. The draft statement is a preliminary draft, and may be withheld.
- Email from Emily Chow to Nancy McKee Perez and Cesar Zapata dated May 10, 2016, 8:50 AM: The email appears in a chain culminating in an email from David Shivel to Eric Eisiminger dated May 26, 2016, 7:48 AM. Chow's email contains a preliminary recommendation and may be withheld, although the other emails in the chain are not exempt.
- Email chain culminating in an email from Jennifer Spradlin to Brandon Bruner dated June 3, 2016, 3:56 PM: The email contained comments and recommendations concerning the documents to be provided to Goguen, and is therefore preliminary. The remainder of the emails in the chain are not exempt.
7 See Restatement (Third) of the Law Governing Lawyers § 69 cmt. j (2000) ("A client may communicate information to a lawyer by sending writings or other kinds of documentary or electronic recordings that came into existence prior to the time that the client communicates with the lawyer. The privilege protects the information that the client so communicated but not the preexisting document or record itself. A client-authored document that is not a privileged document when originally composed does not become privileged simply because the client has placed it in the lawyer's hands."); see also Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cl. 87, 99--100 (Fed. Cl. 2013) ("The fact that a client included a document in a request for legal advice is privileged, however, because it partially reveals the substance of the client's privileged communication to an attorney."); Lexington Pub. Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002) ("'Business documents sent to . . . the corporation's attorneys, do not become privileged automatically.' On the other hand, '[c]lient communications intended to keep the attorney apprised of business matters may be privileged if they embody an implied request for legal advice based thereon.'" (citations omitted)).
8 An email chain culminating in an email from Hockensmith dated May 25, 2016, 11:53 AM, was copied to counsel Leesa Moorman throughout the chain, but there is no indication that Moorman was asked to comment on the information or did so. An email chain culminating in an email from Hockensmith to Moorman dated May 26, 2016, 8:16 AM, was a forward of other emails for Moorman's information. There is no evidence that Moorman was asked to comment on it or did so. An email chain culminating in an email from Hockensmith to the department dated June 28, 2016, 8:48 AM, contains an email from Bruner which was copied to West dated June 27, 2016, 10:18 AM. The email chain does not request or contain any comments from West. The emails are therefore purely factual and not privileged.
9 Specifically, the remainder of the emails in folder 2 are analyzed as follows:
- Email chain culminating in an email from Hockensmith to Moorman, Lynn Keeling Gillis, and Sherry Butler dated May 24, 2016, 2:52 PM: The emails discuss setting up a meeting to discuss certain information, and contains an email from Hockensmith to Gillis and Butler with a copy to Moorman dated May 24, 2016, 2:48 PM, including the information to be discussed. The emails in the chain prior to the May 24, 2016, 2:48 PM email are privileged; the remainder of the emails in the chain are not.
- Email chain culminating in an email from Hockensmith to Moorman dated May 27, 2016, 1:36 PM: The final email in the chain contained an attached letter which was sent to Goguen. Although the email was sent to Moorman, it was a final draft to be disclosed to a third party, and not the subject of a request for legal advice. The final email and the attachment are not privileged. The chain also contained a draft of a letter to Gougen by Hockensmith, which was sent to Moorman for review. The draft letter and the information sent to Moorman are privileged. Hockensmith makes reference to Moorman's review in a subsequent email dated May 27, 2016, 10:19 AM, and the reference to Moorman's comments may be withheld as privileged, although the rest of the email is not. Another subsequent email from Bruce to Hockensmith dated May 27, 2016, 10:35 AM, refers to Bruce's edits to the letter. The edits are exempt as preliminary, but the email making reference to them is not.
- Email chain culminating in an email from Hockensmith to Sean Alteri dated May 31, 2016, 10:55 AM: This chain contained as an attachment a letter sent to Goguen, which is not privileged. The chain also contained questions from counsel Jacquelyn Quarles and Alteri's responses to those questions. Alteri's responses could not be revealed without revealing Quarles' questions, and are therefore privileged. Alteri also makes a preliminary recommendation in an email dated May 31, 2016, 10:28 AM, which may be withheld. Another email responsive to emails in that chain was from Hockensmith to Quarles dated May 31, 2016, 10:32 AM, and is privileged.
- Email chain culminating in an email from Hockensmith dated June 2, 2016, 12:17 PM: The email chain contains an email from Bruner dated June 2, 2016, 12:13 PM, requesting that counsel review certain documents. The portions of that email requesting that counsel review certain documents are privileged.
- Email chain culminating in an email from West to Bruner and Hockensmith dated June 6, 2016, 10:00 AM: West's advice and the email chain on which he advised is privileged.
- Email chain culminating in an email from Bruner to Hockensmith dated June 9, 2016, 8:07 AM: The chain contained advice from West as part of the chain, which was sent on June 3, 2016, 11:37 AM, and an email from Bruner to West dated June 3, 2016, 11:35 AM, which requests West's advice on certain information. West's comments and the information he was asked to comment on are privileged. The chain also contains an email from Quarles to West on June 2, 2016, 1:49 PM, which is privileged, and an email from Bruner dated June 2, 2016, 1:43 PM, in which Bruner seeks legal advice on certain documents. The portions of Bruner's email seeking legal review of the documents are privileged. The emails in the chain subsequent to West's advice on June 3 are not privileged, as they do not reveal the information upon which counsel was asked to give advice.
- Email chain culminating in an email from counsel West to the department in general dated June 24, 2016, 11:24 AM: The email from West to the department is privileged. The chain also contains an email from Quarles to West and Hockensmith, which is also privileged.
- Email chain culminating in an email from Hockensmith to Bruce, dated June 24, 2016, 4:34 P.M: The chain contains an email from Quarles to West and Hockensmith dated June 24, 2016, 11:22 AM, and is privileged. The final email in the chain is not.
10 The attachments provided by EEC as part of folder 3 have been analyzed in accordance with the emails to which they were attached in the sections above. In general, preliminary drafts and material upon which counsel is asked to comment are exempt; final drafts and communications to third parties are not.