Request By:
Stan Cave
John L. Forgy
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Horse Racing Commission ("Commission") violated the Kentucky Open Records Act ("Act") in the disposition of Stanton L. Cave's July 11, 2017, request for the Commission to "please produce any documents evidencing that the [Commission] has determined that the historical horse racing games (known as Instant Racing, Encore/Exacta and Parimax) are legal under Kentucky law." In a timely written response per KRS 61.880(1), Records Custodian John L. Forgy advised Mr. Cave that the Commission was conducting a "complete and thorough search of" its records. Implicitly relying upon KRS 61.872(5), Mr. Forgy further advised, "due to the volume of potentially responsive documents to be reviewed, additional time to accurately complete our search is required up to and including July 21, 2017." 1 Citing KRS 61.872(6), Mr. Forgy initially advised Mr. Cave, by letter dated July 21, 2017, that his request "is vague and ambiguous, overbroad, does not meet the specificity requirements of the [Act], and places an unreasonable burden on a public agency. " Mr. Forgy also cited 05-ORD-014 and 99-ORD-14 in asserting that such a request has been characterized "as an 'open-ended-any-and-all-records-that-relate-type request,' and it does not comply with the requirements of the [Act]." 2
Notwithstanding these considerations, the Commission advised Mr. Cave that minutes of Commission meetings are publicly accessible on the home page of its website at http://khrc.ky.gov/Pages/default.aspx. As apublic agency, Mr. Forgy observed, "the Commission may only act by vote of a quorum of its members in an open meeting." Accordingly, determinations made by the Commission per Appalachian Racing, LLC v. Family Trust Foundation of Kentucky, Inc., 423 S.W.3d 726 (Ky. 2014)(affirming the Franklin Circuit Court's judgment holding that regulations of the Commission for licensing of pari-mutuel wagering on historical horse racing are a valid and lawful exercise of the Commission's authority) 3 are reflected in the minutes of the Commission in accordance with KRS 61.835. Mr. Forgy explained that responsive determinations "will be reflected in those minutes. In the event you seek to review minutes that predate those available on the website, " Mr. Forgy continued, "please specify the minutes you would like to review and the Commission will make arrangements for the delivery to you of any additional minutes [.]" The Commission asserted that any other documents responsive to Mr. Cave's request are protected from disclosure, citing the attorney-client privilege, codified at KRE 503(b), and the work-product doctrine, codified at CR 26.02(3), both of which are incorporated into the Act by operation of KRS 61.878(1)(l), pursuant to which a public agency can properly withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
Referring a requester to a website is "not a substitute for complying with the mandatory terms of KRS 61.872(1)-(3)." 05-ORD-277, p. 8; 05-ORD-050. Mr. Cave "may prefer this mode of inspection. It is not one, however, that the Open Records Act specifically contemplates." 09-ORD-026, p. 4. Insofar as the Commission offered inspection via its website as the only means of accessing the minutes, with the exception of those not accessible on its website, the Commission "cannot be said to have discharged its statutory duty under the Act." 09-ORD-077, p. 6; 12-ORD-111. Based upon the following, the Attorney General otherwise affirms the Commission's denial of Mr. Cave's request.
Upon receiving notification of Mr. Cave's appeal from this office, Mr. Forgy elaborated upon the Commission's position. Citing a line of prior decisions by this office, Mr. Forgy correctly noted that a public agency is not statutorily required to honor a request for information as opposed to a request for public records. 4 Beyond that, Mr. Cave's request is more accurately described as imprecise. See 15-ORD-020 (a request for "proof" that Parole Board members complied with a statute "does not describe a readily identifiable class or type of records"). Resolution of this issue turns on the application of KRS 61.872(3)(b), pursuant to which a person is entitled to inspect public records "[b]y receiving copies of the public records from the public agency through the mail. " However, "the public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located" only after he "precisely describes the public records which are readily available within the public agency. . . ." (Emphasis added). See 03-ORD-067; 15-ORD-212. Mr. Cave satisfies neither of these requirements.
Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by onsite inspection, 5 KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by receipt of copies without prior inspection; this degree of precision applies whether the request asks for the records in hard copy or electronic format "as the difficulties associated with identifying and locating all responsive documents in order to ensure full compliance are the same when, as in this case, the records are not searchable based on the criteria provided." 16-ORD-242, p. 4 (assertion that agency would "have to conduct exhaustive research in order to comply with . . . request for 'any and all' responsive documents for a 12.5 year period relating to projects that are not identified with a project name, [etc.] is entirely credible").
"If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 13-ORD-077, p. 3, quoting 95-ORD-108. 6 A request must be "specific enough so that a public agency can identify and locate the records in question." 13-ORD-077, p. 3, quoting OAG 89-8. In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he/she describes in "definite, specific and unequivocal terms" the records he/she wishes to receive. Id. See 08-ORD-147; 13-ORD-077. In determining that a request was too imprecise to satisfy KRS 61.872(3)(b) in 13-ORD-077, this office advised:
This standard of precise description for records by mail is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. Furthermore, . . . "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ? generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14.
Id., p. 4; 96-ORD-69 (records were described with sufficient clarity for agency to identify the records but agency did not maintain the records "in such a fashion that either a list was kept or that they could be readily identified and located"); 15-ORD-075 (it was "unclear what degree of 'relatedness' to GCDC or its employees would bring an investigation within the scope of the request, or whether investigations of individuals unrelated to their employment at GCDC were meant to be included"). The Commission justifiably relied upon this language in denying the request; however, the Commission agreed to reconsider the request in good faith if Mr. Cave wished to frame it more specifically.
Although Mr. Cave asked for "documents," rather than information, and the phrasing of "any documents," the equivalent of "any and all," 7 is not fatal standing alone, he did not precisely describe those documents; accordingly, the documents cannot be properly characterized as "readily available" within the Commission. 8 See 15-ORD-020 (Parole Board does not classify its records according to such a category and "what might constitute 'proof' of a fact or legal conclusion to one individual might not tend to prove that fact or conclusion in the opinion of another"); 16-ORD-138. Likewise, the request was also not "adequate for a reasonable person to ascertain its nature and scope . . . ." or enable the records custodian to "identify what documents [he] wish[es] to see," 9 and was therefore not sufficiently descriptive under KRS 61.872(2), as construed in Chestnut, 250 S.W.3d at 661, for the Commission to identify, locate, and retrieve potentially responsive documents. "To the extent that the [Commission] has been able to identify . . . responsive record[s], it has offered to provide [Mr. Cave]" with access to such records with the exception of those deemed exempt pursuant to KRS 61.878(1)(l), KRE 503, and CR 26.02. 10 15-ORD-020, p. 4.
The courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege and/or work-product doctrine 11 in the context of an Open Records dispute if , as in Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), all of the elements of the privileges are established. The attorney-client privilege "does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions." Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008). See 01-ORD-246; 02-ORD-161; 10-ORD-177. To clarify, there is no "litigation" or "residual" exception that can be invoked by a public agency solely because it is engaged in litigation, or threatened litigation; the attorney-client privilege and work product doctrine cannot "be invoked absent a showing that each of the elements of KRE 503 or CR 26.02 [is present.]" 03-ORD-015, p. 6.
KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013) (a public agency "should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim and the court to assess it").
The Commission initially cited KRS 61.878(1)(l), incorporating KRE 503 and CR 26.02, but failed to provide any explanation of how KRE 503 or CR 26.02 applied to any specific records being withheld as required under KRS 61.880(1). Its response was deficient in this regard. KRS 61.880(2)(c). However, on appeal the Commission observed that Mr. Cave has previously requested "all communications by and between various counsel through litigation discovery, and these requests have been denied by the Franklin Circuit Court." 12 Parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests. However, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Act (in a line of decisions dating back to 1982). Although there is litigation in the background of a request, a "requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records." OAG 82-169, p. 2. In light of Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), Mr. Cave's request is "evaluated independently of whether or not [he] is a party or potential party to litigation." See 12-ORD-152 (agency erred in denying access to some records because they were "generally available through discovery" ).
As the Court stated in Stewart , KRS 61.878(1) "does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order." Stewart, 41 S.W.3d at 863. Quoting OAG 82-169 and OAG 89-65, the Court explained that "the gist of [KRS 61.878(1)] is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records, to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pre-trial discovery. " Id. at 863; Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010)(reaffirming Stewart in holding that KRS 61.878(1) "is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n) . . . [and] not an exception to an agency's duty to disclose nonexempted records")(emphasis in original). The Commission did not improperly deny Mr. Cave's request merely because litigation was ongoing between the parties; 13 however, "if the records to which the party litigant requests access are both exempt and nondiscoverable," as in this case, KRS 61.878(1) authorizes nondisclosure. 06-ORD-137, p. 6 (citation omitted).
The Franklin Circuit Court has deemed groups of documents encompassing those documents contested here not discoverable. 14 Regardless of whether the proceedings are ongoing, the Court's September 3, 2014, Order is currently the law of the case and this office is not inclined to substitute its assessment for that of the Court. Although Mr. Cave is "entitled to any nonexempt records that are otherwise available to members of the public utilizing the Open Records Act in the intervening period, this office is not empowered to facilitate [an] end-run around the normal discovery process by requiring disclosure of" privileged records that are not subject to discovery under KRS 61.878(1) or the Court's Order. 06-ORD-121, p. 11. This determination is both consistent with and sufficiently analogous to decisions in which the Attorney General declined to address the merits of an issue that was currently before a circuit court. C.f . OAG 88-78 (requester filed Open Records Appeal with Attorney General and Petition for Declaration of Rights in circuit court, "specific focus" of which was the issue of whether certain records were subject to disclosure under the Open Records Act so Attorney General deferred to jurisdiction of circuit court); 07-ORD-194; 08-ORD-196. Compare 97-ORD-73 (court's authority to substantively determine the open records question "clearly supersedes that of the Attorney General" but same question was not before the circuit court); 04-ORD-058. Because Mr. Cave's July 11 request encompasses those records, which, in relevant part, are the subject of the Court's September 3, 2014, Order, pursuant to which those records are privileged under KRE 503 and/or CR 26.02, and therefore protected from disclosure under KRS 61.878(1), this office affirms the Commission's denial with the noted exception.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.
Footnotes
Footnotes
1 The only provision of the Act that authorizes postponement of access to public records beyond three business days, 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 Commission issued a written response within three business days per KRS 61.880(1), but did not expressly invoke KRS 61.872(5); the Commission also provided a date by which records would be made available, but failed to provide a "detailed explanation," as required to successfully invoke KRS 61.872(5). See 02-ORD-217; 12-ORD-043; 13-ORD-168. Even assuming the records being sought were "in active use, in storage or not otherwise available," the Commission did not identify which of these permissible reasons for delay applied, if any, or to what extent. See 12-ORD-211; 13-ORD-074; 15-ORD-174; 16-ORD-206; 17-ORD-082.
2 In Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008), the Kentucky Supreme Court observed that in contrast to KRS 61.872(3)(b), "nothing in KRS 61.872(2) contains any sort of particularity requirement." Id. at 661. Declining to "add a particularity requirement where none exists," the Court held that a request is adequately specific if the description would enable "a reasonable person to ascertain the nature and scope of . . . the request." Id. To the extent decisions by this office that predated Chestnut may have applied a "reasonably particularity" standard to requests for onsite inspection of records, Chestnut implicitly overruled those decisions. 15-ORD-075, p. 4, n. 1. Mr. Cave's request failed to satisfy KRS 61.872(2) as he did not describe the documents that he wished to receive. See p. 6 of this Open Records Decision.
3 On appeal, the Commission advised that the Kentucky Supreme Court remanded the case to the Franklin Circuit Court "for discovery to determine whether historical horseracing is pari-mutuel in nature." Discovery has been ongoing since 2014.
4 The purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. Accordingly, the Attorney General has consistently held that requests for information, as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080; 12-ORD-096. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. See KRS 61.871, KRS 61.872(1), and KRS 61.872(2). Although "public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5; 14-ORD-073 (original emphasis); 17-ORD-049. With regard to any existing responsive documents, i.e. , minutes, which are subject to disclosure per KRS 61.835 and can be readily identified and located, the Commission has done so.
5 Here, Mr. Cave asked the Commission "to produce any documents evidencing? ." The Commission treated his request as being a request for copies; Mr. Cave did not object nor did he offer any further clarification regarding his preferred method of inspection, presumably because he preferred to receive copies. Both Mr. Cave's office and the Commission are located in Lexington, Kentucky, meaning the Commission was authorized to require Mr. Cave to conduct inspection of any non-exempt responsive documents prior to providing copies under KRS 61.872(3)(b). 15-ORD-086. The Commission waived this requirement as to responsive minutes. However, the request is not only too imprecise to satisfy KRS 61.872(3)(b), but failed to adequately "describe" records per KRS 61.872(2) as construed in Chestnut, 250 S.W.3d at 661.
6 In 13-ORD-077, the requester asked for copies of "[a]ny and all records in the possession of the Kentucky State Police referencing or containing the name of Ernest William Singleton or Will Singleton from 2010 to the present," including but not limited to, "records indicative of Mr. Singleton's assistance with [KSP] matters, including tips given to your department."
7 Mr. Cave's assertion that he intentionally avoided using the phrase, "any and all records that relate" does not alter the analysis. See 14-ORD-065 (finding "position that 'any record' or 'all records' are not synonymous or at least functionally equivalent" was unpersuasive). Here, as in 14-ORD-065, "[a] lengthy discussion of semantics regarding this elementary principle is unwarranted. It suffices to note that 'any and all' is a phrase of common usage, as evidenced by the regularity with which requesters in varying contexts use 'any' and 'all' interchangeably." Id., p. 9 (agreeing, "that said terms 'are a distinction without a difference,'" given the dictionary definition of "any")(internal citation omitted). The Commission reasonably interpreted Mr. Cave's request as encompassing any/all existing public records in the possession or custody of the agency matching the vague description provided.
8 Compare 14-ORD-037 ("mere fact that a request uses the phrase 'any and all' does not convert the description from precise to imprecise" and the subject request, unlike Mr. Cave's, contained "nothing that makes identification or location of the relevant records impracticable").
9 See 08-ORD-047, p. 9.
10 Mr. Cave repeatedly asserted that the Commission "put the issue of the legality of the games in issue thus waiving the right to assert attorney client privilege." On appeal, the Commission argued that Mr. Cave's position "that any applicable privilege has been waived by the commencement of the litigation lacks any legal support." Mr. Cave has not cited any legal authority in support of his position and this office is not aware of any; his argument regarding waiver is without merit and further discussion is unwarranted. See generally, 15-ORD-157.
11 Records which are the work product of an attorney prepared or collected in anticipation of litigation or when advising a client are not discoverable under CR 26.02 and, therefore, may be withheld under the Open Records Act. See 11-ORD-108. This doctrine, authority for which is derived from KRS 447.154, is codified at CR 26.02(3). See 07-ORD-147, pp. 8-10.
12 Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 6, the Commission provided this office with a copy of the Franklin Circuit Court's September 3, 2014, Order which, in relevant part, ruled upon the Foundation's Motion to Compel the Racing Commission to Respond to the Family Foundation's First Requests for Production of Documents Numbers 2, 7, 12 and 27. Numbers 12 and 27 sought "all Documents and/or Communications to or from" the Commission "to or from any Joint Petitioner, and/or their counsel, related to Instant Racing and/or the Regulations? ." in addition to "all Documents and/or Communications to or from any Joint Petitioner (and/or their counsel) concerning Instant Racing and/or the Regulations," respectively.
13 Compare 16-ORD-176 (planning & zoning commission improperly denied request merely because the records being sought could also be obtained via discovery).
14 Mr. Cave's June 16, 2014, Motion to Modify and Amend the June 6, 2014, Order Limiting Discovery Rights With No Motion Before the Court To Do So" apparently remains pending. The June 6 Order limited discovery "to issues involving the mechanical operation of the games in relation to the statutory prohibition on gambling."