Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Energy and Environment Cabinet ("Cabinet") violated the Open Records Act by denying access to an intraoffice memorandum regarding prospective administrative actions against coal mining permittees. We find that the Cabinet properly relied upon KRS 61.878(1)(j) in denying access to that memorandum.
On July 28, 2016, Erica Peterson, on behalf of WFPL News, filed a request with the Department of Natural Resources, Energy and Environment Cabinet ("Cabinet"), requesting access to "all memos, electronic or otherwise, issued by the commissioner of the Department for Natural Resources from April 1-June 30, 2016 to DNR staff members pertaining to enforcement of mining laws." On August 12, 2016, Ms. Peterson received a response from Executive Staff Adviser Michael Mullins advising her that the Cabinet had identified one responsive document, a memorandum, but denied her access to that record pursuant to exemptions at KRS 61.878(1)(h), (j), and (k). This appeal by Ms. Peterson followed.
As a preliminary matter, we note that it does not appear that the Cabinet responded to the initial records request within three business days. As there is insufficient treatment of this issue in the appeal and response, we will merely draw the Cabinet's attention to the requirement of KRS 61.880(1) for a public agency to respond to the request in writing within three business days of the request.
Lance Huffman, attorney, responded on behalf of the Cabinet to this appeal and argued that the responsive memorandum is exempt under three separate provisions of the Open Records Act. Mr. Huffman first argued that the memorandum is exempt from release pursuant to KRS 61.878(1)(h) as it pertains to prospective administrative adjudications against coal mining permittees and the premature release of the information would harm the agency's adjudications against such entities in the future: "[R]elease of this document would inhibit the agency's ability to have free and frank internal discussions on how to pursue such adjudications against coal permittees should the need arise. Release would harm the Department's ability to exercise its regulatory discretion free from outside interference until final action has actually been taken."
KRS 61.878(1)(h), in pertinent part, states:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. (Emphasis added.)
The Cabinet has not established that the record in question was "compiled in the process of detecting and investigating statutory or regulatory violations." Moreover, there is the requirement in KRS 61.878(1)(h) to demonstrate that disclosure would harm the agency. In City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Kentucky Supreme Court addressed the "law enforcement exception" under KRS 61.878(1)(h). The Court held that, unlike the investigation and litigation files of Commonwealth's and county attorneys, investigative files of law enforcement agencies are not categorically exempt from disclosure.
Rather, when a record pertains to a prospective law enforcement action, the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.
City of Fort Thomas, 406 S.W.3d at 851.
A concrete, non-speculative risk of harm must be attributed to the release of the particular record. Here, the Cabinet has not identified a particular prospective enforcement action where release of the memorandum would cause a concrete harm to the agency, and so KRS 61.878(1)(h) does not support nondisclosure of the memorandum.
Next, Mr. Huffman cites KRS 61.878(1)(j) as exempting the memorandum from release as it does not constitute a final action or determination against any known entity:
The responsive document is a preliminary memorandum in which policies are being formulated for dealing with prospective adjudications against coal mining permittees. Ms. Peterson argues that the document is not preliminary, in part because she alleges a final action has been taken which incorporated this document. However, this document is neither explicitly nor implicitly referenced in any final action taken by the Department. The document directs field staff to notify the Commissioner and include him in certain final decision-makings, but the document does not require that the agency take any particular final actions against any specific entity. The document identifies a hypothetical enforcement situation wherein the Department has regulatory discretion and the Commissioner wants input on these decisions. Simply put, the Commissioner wants notice if these hypothetical situations occur and he wants to give his input and approve whatever final decision is made. The document does not require that any particular final action be taken because the enforcement situations in question are likely to vary factually on a case-by-case basis and require different enforcement action as appropriate.
KRS 61.878(1)(j) excepts "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." This Office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agency's final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). In 94-ORD-135, we stated:
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
The memorandum at issue deals with a hypothetical enforcement situation and, according to Mr. Huffman, has not been incorporated into any final action taken by the Department of Natural Resources. The memorandum does not require any particular final action, but it does give notice, internal to the Department, that the Commissioner is to be notified if certain hypothetical enforcement situations arise so that the Commissioner can request input from Department employees. We find that disclosure of this memorandum may interfere with the Department's internal decision-making and the free exchange of opinions and recommendations. As such, the Cabinet may continue to withhold the memorandum unless it is adopted as part of final agency action. If the memorandum at issue is adopted as the basis of final agency action, the purpose for which KRS 61.878(1)(j) exists is no longer served, and the memorandum forfeits its preliminary characterization and must be disclosed. See 01-ORD-83, p. 14.
The Cabinet also cites KRS 61.878(1)(k) as supporting a "kind of executive privilege recognized by federal courts as 'deliberative process privilege,' which protects intra-agency communications that are both predecisional and deliberative in nature." KRS 61.878(1)(k) prohibits disclosure of "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation." Mr. Huffman cites Com. Revenue Cabinet By & on Behalf of Gillis v. Graham, 710 S.W.2d 227, 229 (Ky. 1986) for this claim. As Graham was concerned with in camera review of documents, and this decision does not reach the issue of in camera review, we decline to analyze this claim of whether the memorandum could be withheld pursuant to KRS 61.878(1)(k).
Either party may appeal this decision 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 proceeding.