Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department for Environmental Protection properly relied upon KRS 61.878(1)(i) and (j) in redacting intra-office email correspondence. After review of the redacted portions of the subject emails, we find that those portions were properly excepted.
This appeal began with a request from Luke Morgan to the Kentucky Department for Environment Protection (DEP) for a "copy of all correspondence, emails, memo or any other document in the cabinet's possession pertaining to Stoker Fuels, from or to the following persons: Raysha Reed; Laura Sproles; and David Sproles." Mr. Morgan limited his request to the period from 2012 to the date of that request, October 14, 2016. DEP responded to Mr. Morgan's request, but noted that some of the "corresponding documents/emails" were exempt under KRS 61.878(1)(i) and (j). The agency also stated that "redactions have been made to some emails regarding privileged client communications and internal deliberative notes." Mr. Morgan then questioned why the email provided to him had been redacted and the agency stated that "The two e-mails in this string are exempt as strictly internal/deliberative notes pursuant to KRS 61.878(i)." Mr. Morgan questioned the redaction of portions of the emails and DEP corrected its earlier response by stating the redacted emails were "preliminary intra-office discussions exempt pursuant to KRS 61.878(1)(j). They are properly characterized as preliminary intra-office memorandum/discussions which do not represent the agency's final action or determination relative to the matter." Mr. Morgan then appealed DEP's response. In its response to the email, DEP claimed that the redacted portions of the emails were exempt pursuant to KRS 61.878(1)(i) and (j).
The email string in question begins as a request from Scott Fleming, Stoker Fuels, to Raysha Reed, DEP, stating that he had been informed by Mark Smith that the latest oil analysis laboratory results would not be ready for at least ten more days and requesting additional time to complete the required analysis. The email string contained some additional questions from Raysha Reed regarding the identity of Mark Smith and the reason why the results were taking so long. After getting responses for those questions from Mr. Fleming, the email string then shows a redacted message from Raysha Reed at 10:35 a.m., October 7, 2014, to James McCloud, Environmental Control Supervisor, Division of Waste Management, Energy and Environment Cabinet (EEC), and then a redacted message from Mr. McCloud to Raysha Reed at 11:17 a.m. that same day. It is these two redacted emails that Mr. Morgan is appealing.
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 emails at issue regard a decision-making process for the determination of whether to grant a request for an extension of time to submit laboratory analyses that occurred in October, 2014. We recognize that a decision to grant or deny the request necessarily was made, either through action or inaction, within a short period of time after these emails were created. DEP provided the unredacted emails in question pursuant to the authority of the Office of the Attorney General under KRS 61.880(2) and 40 KAR 1:030 Section 3. Our in camera review of the unredacted emails reveal that they continue with the discussion of whether to grant the requested extension and may be viewed as recommending actions and thus properly withheld under KRS 61.878(1)(j). However, if the recommendations were adopted in the final action, whether expressly or implicitly, they must be disclosed.
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 must not be named as a party in that action or in any subsequent proceeding.