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 emails as attorney-client privileged and preliminary. We find that the EEC did not violate the Open Records Act in withholding emails as attorney-client privileged, but did violate the Open Records Act in failing to separate out portions of emails excepted as preliminary from portions which were nonexcepted.
Cathy Goguen submitted an open records request to EEC on Oct. 14, 2016, requesting "any and all records related to visits concerning T&B Auto for the period of August 1, 2016 through today's date. This would include emails, report findings etc. of anyone but specifically including Pete Rayburn and Sean Alteri." EEC requested more time to respond to the request, and responded on Oct. 27, 2016. EEC provided Goguen with a link containing what it stated were "all responsive, non-exempt documentation related to your request." EEC further stated:
Please note 59 corresponding emails/ documents have been exempt under KRS 61.878(1)(i) and KRS 61.878(1)(j). These emails/ documents are preliminary drafts not intended to give notice of final agency action and may also include recommendations. Please note 16 corresponding emails/ documents have been exempt under KRS 61.878(1)(j). These emails/ documents include preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated. Please note 9 corresponding emails/ documents have been exempt as these emails/ documents are attorney client communications.
Goguen initiated this appeal on Oct. 27, 2016, on the grounds that "I cannot be certain the records being withheld are for the reasons stated. That was not the case in the past and I am requesting the records be released to me if the reasons they have refused are not true." EEC responded to the appeal on Nov. 1, 2016. EEC began by noting that "Ms. Goguen is referring to the requests that gave rise to 16-ORD-208. . . . When the Attorney General found that the Cabinet erred in withholding several specific documents in 16-ORD-208, the Cabinet promptly provided those documents to Ms. Goguen." Regarding its specific assertions of exemptions, EEC stated that "nine documents are withheld as attorney-client communications. All of the emails withheld are either from or to at least one attorney from the cabinet . . . . In all of those emails, the attorney(s) is either receiving a request or question from the client agency or offering advice or guidance." EEC further stated that "sixteen documents were withheld pursuant to KRS 61.878(1)(j) because they contain preliminary recommendations and/or memoranda in which opinions were expressed." EEC also stated:
Fifty-nine documents were withheld under KRS 61.878(1)(i) and KRS 61.878(1)(j) because those documents are preliminary in nature, . . . and at times, may also contain recommendations. The vast majority of those documents are emails representing a dialogue between Brandon Bruner . . . and various Cabinet employees. The purpose of that dialogue is to facilitate crafting a response to Ms. Goguen . . . . Therefore, those drafts and that dialogue are preliminary to the responses that were actually sent to her.
EEC provided a CD containing the documents at issue in corresponding folders, and included a footnote stating that "KRS 61.880(2)(c) provides the Attorney General with the ability to review documents to facilitate its review without disclosing those documents. The Cabinet has provided the documents at issue here preemptively under that provision to allow the Attorney General to conduct a full review of the issue." 1
Regarding EEC's assertion of attorney-client privilege for nine 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 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 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 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). A review of the nine emails withheld on the grounds of attorney-client privilege indicate that they are all communications between an attorney and client for the purposes of legal advice. Accordingly, in withholding nine emails on the grounds of attorney-client privilege, EEC did not violate the Open Records Act.
Regarding EEC's withholding of sixteen emails under KRS 61.878(1)(j) and fifty-nine emails under KRS 61.878(1)(i) and (j), 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 from the Open Records Act "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.
A review of the sixteen emails withheld under KRS 61.878(1)(j) indicates that they all do contain preliminary recommendations and opinions, but also contain statements of factual information. A review of the fifty-nine emails withheld under both KRS 61.878(1)(i) and (j) similarly indicates that they all contain preliminary notes and recommendations, but also contain factual communications, and communications to and from Goguen, which are not preliminary. 2 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." EEC is thus required to separate the preliminary recommendations in the emails from the purely factual statements and other correspondence and make the nonexcepted available, but it did not. 3 Accordingly, in failing to redact material that is exempt as preliminary from documents and provide the nonexempt portions of the documents, EEC violated the Open Records Act.
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