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 City of Covington violated the Open Records Act in the disposition of Charles Wheatley's request for various e-mails of city officials. For the reasons stated below, we find no substantive violation of the Act.
Mr. Wheatley's initial request, dated September 16, 2016, contained six categories, each seeking "all email sent" from one named official with another named official as a recipient, "but not Commissioner Steve Frank" as a recipient, between August 1 and September 13, 2016. Due to the number of e-mails implicated by the request, city personnel were unable to assemble all of them within the three business days provided by KRS 61.880(1).
According to a response to this appeal by Assistant City Solicitor Cassandra J. Zoda, the city responded to the request within the three business days and advised that the earliest date the records would be available was October 7, 2016. The record does not contain a written response to the request sent within the three-day period. In general, "[v]erbal responses are not sufficient" under the Open Records Act. 16-ORD-081. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The record does not reflect whether this provision was complied with by the third business day, particularly in regard to "a detailed explanation of the cause ? for further delay." If it was not, the city committed a procedural violation of the Act.
On September 22, 2016, the fourth business day, the city legal department contacted Mr. Wheatley's organization (Covington Professional Firefighters, I.A.F.F. Local 38) by telephone and advised that the city's search had found more e-mails than anticipated and production was likely to take longer than October 7, 2016. The city sent a letter on October 6, 2016, stating that the terms of the request were burdensome because each e-mail located had to be individually reviewed to determine whether Commissioner Steve Frank was an additional recipient, which would require approximately 84 hours to scan 1,679 potentially responsive e-mails. Further, an estimated 1,000 responsive e-mails would have to be reviewed for exempt material, requiring another 166 hours. Nevertheless, in a spirit of cooperation, the city did not deny the request, but estimated that the entire response would be completed by February 10, 2017. The union was encouraged to narrow the request if possible.
On October 10, 2016, Mr. Wheatley amended his request so as to remove the "but not Commissioner Steve Frank" term. Additionally, the amended request altered the date range to August 15-September 11, 2016. These altered terms, which partially narrowed but partially broadened the request, required the city to recompile the responsive e-mails in response to the changes. Nevertheless, the city committed to producing the records by December 30, 2016, and in fact completed its fulfillment of the request by November 3, 2016, a mere 24 days after the amended request. Ultimately, 450 e-mails were produced and 445 were withheld as exempt, along with some redacted portions of the produced e-mails.
Mr. Wheatley initiated his appeal on October 24, 2016, contending that the delay in producing the records was excessive. Ten days later, the final records were provided along with the letter of November 3, 2016, which set forth the following details regarding the e-mails that were withheld:
Based on the nature of your request for "all emails, " many of the documents responsive to your request were preliminary drafts, notes, or recommendations. 428 emails responsive to your request have been withheld in their entirety because they consist of preliminary correspondence with private individuals, preliminary drafts, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. These records are exempt from inspection pursuant to KRS 61.878(1)(i) and KRS 61.878(1)(j).
The excluded documents include emails in which City staff and/or officials discuss strategies and approaches, solicit or consider opinions, or recommend a course of action. [Citations omitted.] These documents also include preliminary drafts, notes and correspondence with private individuals, which are exempt from disclosure pursuant to KRS 61.878(1)(i). ? These emails have not been adopted as the basis of final agency action. Disclosure of these documents would harm the City's ability to freely discuss options and to formulate policies.
A very large portion of the withheld emails consist of preliminary correspondence with private individuals about parking and flooding issues within the City, and internal discussion about how to address the complaints. In these emails, City staff members express opinions of possible causes for the issues and formulate potential remedies. Other common subjects of the emails include discussion of very personal neighborly disputes, drafts of City press releases, draft contracts, recommended procedures for special events, waste management in public parks, potential development within the City, and sidewalk replacement proposals.
10 emails responsive to your request have been withheld in their entirety because they consist of legal advice. The documents consist of staff opinions and confidential communications made for the purpose of facilitating the rendition of professional legal services. These emails are thus exempt from inspection pursuant to KRS 61.878(1)(i), KRS 61.878(1)(j), KRS 61.878(1)(l), and KRE 503. ?
5 emails responsive to your request have been withheld in their entirety because they consist of information of a personal nature, where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. The email contains a list of Fire Department and EMS runs. The document makes references to personal injuries and needs for assistance at certain residences. The need for medical treatment is information of a highly personal nature. This interest in privacy outweighs the public's interest in disclosure. This information is exempt from inspection pursuant to KRS 61.878(1)(a).
Enclosed you will find a list of the subject lines of all emails withheld for reference.
Additionally, the city redacted some portions of e-mails which were "preliminary opinions and recommendations, " as well as certain information redacted on the basis of personal privacy: "names, addresses, telephone numbers, and email addresses of private individuals, as well as some communications between private individuals."
Timeliness of fulfilling request
We find that the time taken to complete this request was reasonable and therefore did not subvert the intent of the Open Records Act within the meaning of KRS 61.880(4). 1 "A determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e. , the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records." 03-ORD-050. As we stated in 2012:
[B]roadly worded requests for "all email" sent or received by a particular person or persons, or related to a particular subject, or within a stated timeframe, have become increasingly common. Although such requests are not "improper," they could not have been envisioned by the General Assembly in adopting a three working day statutory deadline for records production when the Open Records Law was enacted in 1976, and applicants submitting requests cannot reasonably expect agencies to which these requests are directed to produce all responsive records within the three day deadline. Applicants are therefore urged to frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production.
12-ORD-097, n.4.
The search in this case yielded a final total of 895 e-mails responsive to the amended request. The time between Mr. Wheatley's initial request and his amended request was 24 days. From the amended request to the production of the final group of records was, again, 24 days. Based on an adequate showing by the agency, we have in the past found justification for delays as long as 81 days, 14-ORD-024, and in one extreme case six months. 12-ORD-097. Given the volume of e-mail involved in this case, the changing terms of the request, the need to recapitulate the search for records, and the need to review and redact a large number of e-mails, we find that a period of 24 days was justified.
Withheld and redacted records
Regarding the redactions and withheld e-mails, we note that KRS 61.878(1)(i) and (j) permit the withholding from inspection of, respectively:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
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.)
"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." 01-ORD-47. 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).
E-mails containing strategies, opinions, or recommendations that have not been adopted as the basis of final agency action fall within the coverage of KRS 61.878(1)(j). Similarly, those e-mails consisting of preliminary drafts, notes, or correspondence with private individuals, which have likewise not been adopted as the basis of final action, are properly within the scope of KRS 61.878(1)(i). See 07-ORD-108 and decisions cited therein. We find that the city's November 3, 2016, response adequately explained the withholding and redaction of these categories of e-mails.
Regarding the attorney-client privilege, the city correctly notes that the privilege under KRE 503 is incorporated into the Open Records Act through KRS 61.878(1)(l). Confidential communications made for the purpose of rendering professional legal services are inherently within the scope of the attorney-client privilege. Additionally, legal opinions can be protected by the privilege, provided they are prepared for clients in the course of legal representation for the purpose of rendering legal advice and not shared with third parties. 14-ORD-167. Legal opinions given to city staff by the city's legal counsel, which otherwise meet these criteria, would therefore be privileged.
Lastly, there remains the privacy exception. KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In Zink , the privacy interest of injured workers in their home addresses, telephone numbers, and Social Security numbers was found to outweigh the interest of an attorney seeking the information for marketing purposes where disclosure "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." 902 S.W.2d at 829.
In Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013), the Supreme Court found that certain information, such as home addresses and telephone numbers and Social Security numbers, is not routinely pertinent to the public interest served by the Open Records Act. With regard to "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption, " the Court held, "the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule." Id. at 89. With regard to the types of information at issue in Kentucky New Era , the Court found that the privacy interest "will almost always be substantial, and the public's interest in disclosure rarely so." Id. Therefore, the categorical redaction of this identifying information was upheld.
We have subsequently upheld the categorical redaction of private e-mail addresses. See 16-ORD-205 and decisions cited therein. As for names of private individuals, we have stated that these may be redacted along with other identifying information if there is no indication that their disclosure would serve the public purpose of the Open Records Act. 16-ORD-188. Here, the request is of the most general nature, for all e-mails exchanged by certain city officials. Accordingly, we affirm the redactions of personal data on private individuals.
Lastly, we address the list of Fire Department and EMS runs, which refers to personal injuries and needs for medical treatment at certain residences. In OAG 92-75, we opined that KRS 61.878(1)(a) did not protect "information of a general nature" contained in ambulance run reports, "such as the number of runs made, the destination of the runs, whether an individual or individuals were transported to a hospital or treatment facility, and if so, where they were taken." We find, however, that an alternative basis exists for affirming the city's decision to withhold this record insofar as it relates to medical first response runs. KRS 311A.190(5) provides:
Ambulance provider and medical first response provider run report forms and the information transmitted electronically to the [Kentucky Board of Emergency Medical Services] shall be confidential. No person shall make an unauthorized release of information on an ambulance run report form or medical first response run report form. Only the patient or the patient's parent or legal guardian if the patient is a minor, or the patient's legal guardian or person with proper power of attorney if the patient is under legal disability as being incompetent or mentally ill, or a court of competent jurisdiction may authorize the release of information on a patient's run report form or the inspection or copying of the run report form. Any authorization for the release of information or for inspection or copying of a run report form shall be in writing.
In the absence of proper authorization, ambulance and medical first response run reports are therefore exempted from disclosure under this statute, which is deemed incorporated into the Open Records Act by KRS 61.878(1)(l).
To the extent that any fire department runs on the list may not constitute "medical first response runs" within the meaning of KRS 311A.190(5), however, they must be treated differently from ambulance runs. In 94-ORD-133, we held that for fire run logs "[t]o be exempt from inspection, particulars regarding given notations on the log must be articulated in terms of the requirement of" KRS 61.878(1)(a). Nevertheless, in light of Kentucky New Era, Inc., supra, specific information identifying private individuals is subject to categorical redaction unless it has a particular relevance to the public interest served by the Open Records Act. No such relevance has been shown here. 2 Therefore, this identifying information is presumptively excludable from inspection. Any information on fire runs that does not pertain to private individuals or to medical first response should be disclosed.
Conclusion
In light of the totality of the circumstances, we find that the City of Covington did not excessively delay the inspection of the e-mails requested by Mr. Wheatley. Furthermore, we find that the city has, for the most part, met its burden of justifying the withheld e-mails and redactions under the cited exceptions, along with KRS 311A.190(5). Any withheld information on fire department runs which do not qualify as "medical first response runs," except for information pertaining to private individuals, should be disclosed.
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 proceeding.
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 Though two months have passed since the November 3 letter, we note that Mr. Wheatley has not contested on the record any of the redactions or withheld e-mails. While this does not deprive us of jurisdiction to review a public agency's decision to withhold public records, neither does it raise any further questions regarding what appears to have been a rationally justified decision supported by the applicable law.