Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Energy and Environment Cabinet (EEC) violated the Open Records Act in its disposition of Courier-Journal reporter James Bruggers' August 24, 2016, request for records relating to certain penalties against the Louisville Metropolitan Sewer District. For the reasons that follow, we find a partial violation of the Act.
Mr. Bruggers' August 24 request was for the following:
[A]ny and all notices of violations and supporting documents related to a penalties [ sic ] identified in the April 25 letter from Jeff Cummings (EEC) and Denisse Diaze (EPA) to Tony Parrot of Louisville MSD regarding stipulated penalties of $ 118,500. Please include any written correspondence between and among the three parties (MSD, EPA and EEC) related [to] these penalties.
On August 29, 2016, the EEC responded by providing the responsive records with the exception of six e-mails, explaining as follows:
Please note six (6) corresponding emails are exempt under KRS 61.878(1)(i) and KRS 61.878(1)(j). These emails are between representatives of the United States Environmental Protection Agency and the Energy and Environment Cabinet, and among representatives of each agency, regarding a joint investigation then underway concerning alleged violations by MSD. The emails contain internal deliberations in which opinions are expressed and recommendations are made along the path of the decision, but preliminary to EEC management making a final determination regarding the matters that were still being investigated. Documents attached to some of the emails reflect analysis supporting pre-decisional opinions and recommendations, or are unsigned, undated preliminary drafts of a letter. Neither the emails, nor any attached documents, were incorporated into EEC's final determination regarding the matters being investigated. Thus, these emails and their attachments are exempt from disclosure.
Mr. Bruggers initiated an appeal on September 9, 2016.
On appeal, Mr. Bruggers provides a copy of EEC's final determination on April 25, 2016, that MSD should pay $ 118,500 for unauthorized discharges occurring between July 1, 2014, and June 30, 2015, under an Amended Consent Decree dating from 2008. He points out that "Kentucky courts do not require an explicit adoption of records or opinions in order for them to be 'deemed incorporated' in the final agency action. " Additionally, he argues that communications between EEC and EPA concerning a joint investigation should not be subject to KRS 61.878(1)(i) and (j).
EEC has provided the six disputed e-mails for in camera review. In a response to the appeal dated September 22, 2016, Assistant General Counsel Christopher Fitzpatrick disputes Mr. Bruggers' assertion that communications between cooperating agencies cannot be exempted as preliminary. He further argues that none of the disputed e-mails constituted "an integral part of the final decision document ..., but [they] merely reflect the opinions and recommendations of staff regarding what courses of action might be taken."
One of the six e-mail discussions, dating from May 2016, Mr. Fitzpatrick characterizes as nonresponsive, since it is "post-decisional, but relates to the agency's internal processes and protocols for developing and processing letters seeking penalties and the accounting issues around penalty payments, and thus is peripheral to the request." Upon review, we agree that this discussion is outside the scope of the request, as it is neither a supporting document nor correspondence between or among the three parties involved. Accordingly, there was no error in withholding this communication.
In analyzing the remaining five e-mails, we note that KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in the cases of, respectively:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
In
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." (Emphasis added.)
In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658, 659, 660 (Ky. App. 1982). It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action. "In our view, the courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing City of Louisville, supra).
We agree with EEC 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." Thus, "this Office has recognized that the rationale underlying the exceptions is equally compelling regardless of whether the communications are within an agency or between agencies." 93-ORD-125. Therefore, communications between EEC and EPA are potentially subject to the exceptions. We evaluate the e-mails accordingly.
Two of the e-mails, dating from March 2016, consist of opinions and recommendations in regard to an attached preliminary draft of the April 25 penalty letter. Since these discussions pertain to the content of a rejected draft of the letter, we find that KRS 61.878(1)(i) and (j) permit their nondisclosure.
Another e-mail from March 2016 constitutes a submission of a draft justification memo for the penalties in question. We regard the transmittal e-mail itself as a recommendation, while the attached document is evidently a preliminary draft. Although the final version of the justification memo would likely be subject to disclosure as a document adopted as the basis of the April 25 penalty letter, we do not have the final memo in the record and, consequently, cannot determine whether it varies from the transmitted draft. As such, we are unable to conclude that this draft was adopted as the basis of final action; therefore, we find no error in the withholding of this document.
An e-mail dating from January 2016 consists of a communication from EPA to EEC with an attached spreadsheet. Although this e-mail contains expressions of opinions and recommendations, we note that it was evidently shared with representatives of MSD, the party against which the penalties were to be assessed. For this reason, we do not believe the rationale for KRS 61.878(1)(i) and (j) applies, as the communication has already been disclosed to an outside party. "The Attorney General has long recognized that all persons have the same standing to inspect public records under the Open Records Act. " 01-ORD-81 (citations omitted). "If evidence existed that [a public agency] had engaged in the practice of selective disclosure of its records through its custodian of records, this office would be bound to declare its practice a violation" of the Act. Id. Thus, we find that the e-mail in question was improperly withheld.
The final e-mail discussion in dispute occurred on the same date in January 2016, and similarly included MSD representatives, only this time one MSD representative was an active party to the conversation. For the reason just stated, we do not find that the cited exceptions apply. In addition, it does not appear that this discussion falls into any of the categories enumerated in KRS 61.878(1)(i) or (j). Therefore, we find that both of the e-mail discussions from January 2016 must be disclosed. The remainder of the withheld e-mails, however, are subject to the exceptions in KRS 61.878(1)(i) and (j).
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.