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 Office of the Governor ("Governor's Office") violated the Kentucky Open Records Act in partially denying Spencer Scharff's July 7, 2017, request for copies of "[a]ll email communications in the possession, custody, or control of the Office of the Governor that were sent to or received from an individual (or entity) with an email address containing one of the following domains: @who.eop.gov and/or @ptt.gov." Mr. Scharff clarified that "Office of the Governor" referred to "Governor Matt Bevin, as well as all employees, staff, agents, and representatives of Governor Bevin and/or the Office of the Governor," and that his request included "[a]ll emails, including attachments, that have an email address from one of the two domains listed above ( i.e. Name@who.eopgov), in either the 'From,' 'To,' or 'Bcc' fields," generated between December 1, 2016, and the date of the request. On July 21, 2017, Deputy General Counsel Michael T. Alexander advised Mr. Scharff that "several pages of non-exempt e-mail records" were attached; however, the Governor's Office maintained that "responsive e-mail records consisting of communications relating to the Governor's schedule, communications with private individuals and communications regarding preliminary matters" were protected from disclosure under KRS 61.878(1)(i) and (j)."1 Citing
Courier-Journal v. Jones, 985 S.W.2d 6 (Ky. App. 1995)(relative to accessibility of the Governor's schedule), 2 as well as prior opinions relative to application of those statutory exceptions generally, the Governor's Office denied the remainder of Mr. Scharff's request "in an effort to protect the integrity of the ongoing internal decision making process so as to further facilitate the free exchange of opinions and recommendations [.]"
By e-mail dated July 24, 2017, Mr. Scharff asked for clarification regarding which language found at KRS 61.878(1)(i) and (j) the Governor's Office was relying upon specifically; Mr. Scharff also respectfully asked the Governor's Office to reconsider its position that all of the records in dispute were properly withheld in their entirety (see KRS 61.878(4)) as "the To, From, CC, BCC, Date, Subject lines of the email records could not possibly fall under any of the" cited exceptions. On July 28, 2017, Mr. Alexander acknowledged certain procedural deficiencies in his original response on behalf of the Governor's Office. Mr. Alexander advised that 63 pages of "email records that relate directly to the Governor's daily schedule" were located and withheld. "These records [were] limited to scheduling matters and the deliberative processes concerning the Governor's schedule." Accordingly, the Governor's Office reiterated that such records are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j), quoting extensively from 05-ORD-144, pp. 11-12 (following Courier-Journal v. Jones and 05-ORD-018).3 Mr. Alexander noted that none of the subject e-mails "relate to such things as travel logistics or any associated expenses."
In addition, the Governor's Office reiterated that "several additional pages" were also being withheld under authority of KRS 61.878(1)(i) and (j), citing 96-ORD-205 for the proposition that "officials must be able to make preliminary comments on various matters without fear that those comments will be thrown into the public arena." Quoting 14-ORD-014, the Governor's Office maintained that said records "fall squarely within the parameters of the" cited exceptions, "especially since those records are pre-decisional documents which have not been adopted as part of final agency action." 4 Mr. Alexander then provided a "summary description" of the records withheld, separating the records into five categories.5 Mr. Scharff initiated this appeal on August 15, 2017.
Upon receiving notification of Mr. Scharff's appeal from this office, Mr. Alexander reiterated his original arguments relative to KRS 61.878(1)(i) and (j) on behalf of the Governor's Office. As the Attorney General routinely does in cases involving application of KRS 61.878(1)(i) and (j), among other exceptions, he asked the Governor's Office to provide this office with unredacted hard copies of all existing responsive documents, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, for the limited purpose of in camera review . "The Attorney General's decision of whether or not to request additional documentation from the agency for substantiation, or a copy of the records involved, is discretionary and based on" the specific facts presented in each appeal. 17-ORD-011, p. 5. In exercising its authority under KRS 61.880(2)(c) here, this office expressly acknowledged its obligation "to maintain the confidentiality of the records during the pendency of this matter" in accordance with KRS 61.880(2)(c) and further agreed to destroy the hard copies upon rendering a decision per 40 KAR 1:030 Section 3.
By letter dated September 26, 2017, Mr. Alexander advised that the Governor's Office "is willing to allow a court to review the disputed documents if necessary, but not the Attorney General." The Governor's Office then engaged in a detailed analysis of executive privilege. First, Mr. Alexander observed, "this is not a judicial proceeding. Second, even in a judicial proceeding, in camera production of such records is appropriate only where relevance and necessity to a judicial proceeding are shown. Third, the Attorney General, an adversary of the Governor both institutionally and politically, is hardly a disinterested arbiter." The Governor's Office further asserted that "nothing in the [KRS 61.880(2)] guarantees the preservation of privileged records." Notwithstanding the mandate of KRS 61.880(2)(c), the Governor's Office asserted that "the Attorney General's demand that another executive branch agency submit privileged/protected documents for in camera review raises significant intra-branch separation of powers issues. See Ky. Const. §§ 27-28."6
Before proceeding with our analysis, the Attorney General's Office is compelled to briefly address the allegation by the Governor's Office that the Attorney General will not discharge his duty under KRS 61.880(2) in a neutral and objective manner. KRS 61.880(2) requires the Attorney General to resolve disputes concerning access to public records. In construing KRS 61.880(2), this office has observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
If this matter is appealed to the appropriate circuit court - which could have been done without requesting the opinion - that court will make a de novo review of the evidence. [Citations omitted.] Therefore, this opinion will not prejudice the requesting party in any way.
OAG 92-10, p. 5, citing OAG 91-35, p. 3; see also OAG 78-639. Because there is no provision for independent review under the circumstances presented, this office must proceed with a review of the appeal "without favoritism or bias." Id. See 05-ORD-280; 10-ORD-207; 11-ORD-145. This office has done so many times under circumstances in which our impartiality was called into question, including occasions when this office was asked to conduct a KRS 61.880(2) or KRS 61.846(2) review of disputes involving this office and in which violations of the Open Records and Open Meetings Acts were ultimately found. See, e.g., 97-ORD-117; 99-ORD-121; 01-OMD-154; accord, 99-ORD-36; 05-ORD-075 (Attorney General adjudicated disputes involving Department of Public Advocacy). Here, as in past appeals, this office assures the parties that "[w]e strive to maintain absolute [independence and] impartiality in discharging [the statutory] duty" with which we are charged under KRS 61.880(2). 97-ORD-117, p. 1; 05-ORD-280; 08-ORD-021.
That said, the Governor's Office raised nearly identical arguments regarding executive privilege and separation of powers in 2005 (based on the same legal authorities), each of which the Attorney General's Office rejected; the instant appeal presents no basis to depart from the reasoning contained in the Open Records Decision resolving that dispute, 05-ORD-185. Accordingly, this office hereby adopts the following analysis found at pages 6-8 of 05-ORD-185:
. . . We remind the Office of the Governor that, like a court, we are tasked with "issu[ing] . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884,"7 and that those decisions, if not appealed within thirty days from the day we render them, "shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained."8
Further, we remind the Office of the Governor that KRS 61.880(2)(c) provides that an agency resisting disclosure has the burden of proof to sustain its action. In light of the statement of legislative policy set forth at KRS 61.871, and declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others," we are not prepared to accept, in the interest of comity, that all of the responsive documents are shielded from public inspection by operation of executive privilege, KRS 61.878(1)[(i), or (1)(j).
In general, the cases cited by the parties to this appeal which analyze executive privilege focus on the necessity of "separating the wheat from the chaff in a determination of that which is and that which is not entitled to the claim of privilege. " Revenue Cabinet v. Graham, Ky., 710 S.W.2d 227, 229 (1986). In Graham , the Kentucky Supreme Court identified U.S. v. Nixon, 418 U.S. 683, 945 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), as "[a]rguably the most noteworthy case in which privilege was asserted against the in camera production of documents . . .," extracting the following quotation:
U.S. v. Nixon, 418 U.S. at 706, cited in Graham at 229. Continuing, the Court rejected the agency['s] claim:
Id. Although the Office of the Attorney General is an executive branch agency, in [our] statutorily assigned role [under KRS 61.880(2)(c),] it is our duty "to say what the law is . . . [by] review[ing] the requested documents and . . . determin[ing] the application of the law of privilege thereto." Id. The Office of the Governor has effectively precluded us from discharging this duty, and we therefore must conclude that that Office failed to meet its statutorily assigned burden of proof relative to the invocation of executive privilege.
By the same token, we cannot blindly accept the position taken by the Office of the Governor that the disputed emails are otherwise protected under the rule announced in Courier-Journal v. Jones , above. [Footnote omitted.] Suffice it to say that the appeal before us involves email transmissions, not an appointment calendar, and that Jones therefore cannot be considered "simply dispositive." We have no doubt that with respect to certain of the disputed emails "the public's right to know is subservient to . . . the need for governmental confidentiality" which is recognized in KRS 61.878(1)(i) and (j). Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 75, 878 (1995). We are foreclosed from making such a determination relative to individual emails by virtue of the Office of the Governor's refusal to comply with our KRS 61.880(2)(c) request. Compare, 05-ORD-144 [(partially affirming the Office of the Governor's denial of access to 154 emails) ].
05-ORD-185, pp. 6-8.
To reiterate, KRS 61.880(2)(c) provides that "the burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed ." (Emphasis added.) Similarly, 40 KAR 1:030(3) provides, "KRS 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered ." (Emphasis added.) Referring to KRS 61.880(2)(c) and 40 KAR 1:030 § 3, this office has consistently recognized that "the General Assembly has twice vested the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review[.]" 10-ORD-079, p. 5. Here, as on prior occasions, including 05-ORD-185, the Attorney General is "not prepared to accept, without independent confirmation, that all of the responsive documents are shielded from public inspection by KRS [61.878(1)(i) and (j), executive privilege,] or any other exception." 10-ORD-079, p. 6 (citation omitted).
When a public agency declines to produce records that are purportedly exempt from disclosure for in camera inspection, as the Governor's Office did here, the Attorney General's Office has repeatedly found that "the agencies whose denials were challenged had not met their burden of proof in sustaining those denials under KRS 61.880(2)(c)." Id ; see 05-ORD-169 (Attorney General's ability to render a decision is "severely impaired" without exercising his authority under KRS 61.880(2)(c) and 40 KAR 1:030 Section 3); 95-ORD-61; 96-ORD-206; 04-ORD-031; 05-ORD-185; 16-ORD-113; 16-ORD-133; 16-ORD-193; 17-ORD-011; 17-ORD-014. The Kentucky Court of Appeals unequivocally endorsed this approach in
Cabinet for Health and Family Services v. Todd County Standard, Inc., 488 S.W.3d 1 (Ky. App. 2016). In admonishing CHFS for "blatantly refusing to respond to the Attorney General's specific questions" per KRS 61.880(2)(c), the Court observed that CHFS "certainly frustrated the Attorney General's statutory review under KRS 61.880 . . . " Id. at 8.
In sum, the Court declared that a public agency " cannot benefit from intentionally frustrating the Attorney General's review of an open records request ; such result would subvert the General Assembly's intent behind providing review under KRS 61.880(5)." Todd County Standard, 488 S.W.3d 1 at 8 (emphasis added); see 16-ORD-161 (noting the "juxtaposition of the assignment of the burden of proof to the agency and the Attorney General's authority to request additional documentation 'for substantiation' establishes" that requests made under KRS 61.880(2)(c) are neither "adversarial [n]or a form of 'advoca[cy] for the requester,'"); 16-ORD-113; 16-ORD-191. Consistent with Todd County Standard , the Franklin Circuit Court recently noted that "[t]he Attorney General's statutorily defined confidential, in camera review of substantiating documents does not constitute a public disclosure of documents." Kentucky State University v. The Kernel Press, Inc. d/b/a The Kentucky Kernel , No. 17-CI-199 (Franklin Circuit Court, Division II October 13, 2017). "Any subversion of this authority," the Court observed, "inherently undermines the functioning of the Attorney General's Office, and it inhibits transparency in government operations. Therefore, disallowing the Attorney General to act in accordance with [his] statutory mandate of reviewing appeals of Open Records request[s] by requesting substantiating documents for an in camera review could only thwart the public interest of transparency in government." Id.
As in 16-ORD-161, "the Attorney General's duty to conduct a meaningful review and issue an informed and reasoned decision, guided by the statutorily assigned agency burden of proof" must not yield to a noncompliant agency. See 17-ORD-011; 17-ORD-192; compare 16-ORD-039 ( in camera review of e-mails, including an e-mail relating to schedule of Governor Bevin, by Attorney General's Office confirmed that Governor's Office properly withheld the records under KRS 61.878(1)(i) and (j) and Baker v. Jones ); 17-ORD-141 ( in camera review of e-mails confirmed that records contained recommendations and opinions). The Attorney General recognizes that he is bound to maintain the confidentiality of the records, and does not agree with the agency's view that "disclosure to this office pursuant to KRS 61.880(2)(c) constitutes waiver as to any legitimate privilege [or exemption] asserted." 96-ORD-106, p. 5; 10-ORD-079. Because he does not have authority to compel disclosure of the records in dispute, "his only recourse is to find against the public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future." Id. Consistent with KRS 61.880(2)(c), Cabinet for Health and Family Services v. Todd County Standard , and 05-ORD-185, this office must conclude that the Governor's Office failed to satisfy its burden of justifying the denial of Mr. Scharff's request.
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 Pursuant to KRS 61.878(1) (i) and (j), the following records are removed from application of the Act in the absence of a court order:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
2 The Governor's Office also cited 04-ORD-211, the relevance of which is unclear as that decision affirmed the agency's denial based on the nonexistence of the records being sought.
3 Significantly, in 05-ORD-144 the Governor's Office provided the subject e-mails for in camera review per KRS 61.880(2)(c) and this office partially affirmed its denial of the request; likewise, the Governor's Office complied with our KRS 61.880(2)(c) request in 05-ORD-018.
4 Our in camera inspection of the records validated the agencies' denial in 14-ORD-014.
5 Mr. Alexander described the records as follows:
1. Email dated February 21 between Amanda Stamper, Chris Skates, Stephanie Nelson and other about draft op-ed.
2. Emails dated March 10 through March 23 between Adam Meier, Jessica Ditto, Justin Clark, Blake Brickman, Douglas Hoelscher and others concerning AHCA feedback recommendations, Appalachian Sky Initiative, and ACA recommendations.
3. Emails dated April 5 through May 1 between Jessica Ditto, Douglas Hoelscher, Jack Sewell, Stephanie Nelson, and others about establishing a contact database.
4. Emails dated May 22 through May 23 between Douglas Hoelscher and others concerning preliminary budget proposals.
5. Emails dated June 12 through June 15 between Amanda Stamper, Chris Skates, Kaelan Dorr, Blake Brickman, Douglas Hoelscher and others about workforce briefing/draft op and Rebuild Rural updates[.]
6 The Governor's Office also generally referred to a recent Opinion and Order by the Fayette Circuit Court; however, the Court expressly declined to make any "decision as to the AG's authority to review records which are claimed by a public agency to be protected by a privilege, such as the attorney-client privilege." Commonwealth of Kentucky, ex re. Andy Beshear, Attorney General v. University of Kentucky , No. 16-CI-3229 (Fayette Circuit Court, 8th Div. August 10, 2017).
7 KRS 61.880(2)(a)
8 KRS 61.880(2)(c).
9 With reference to "protection that a . . . court will be obliged to provide" in conducting in camera inspection of public records for which the claim is asserted, [this office] notes that KRS 61.880(2)(c) expressly provides that "[t]he Attorney General may also request a copy of the records involved but they shall not be disclosed ." (Emphasis added.) See also 40 KAR 1:030 Section 3 (expressly providing that "[i]f documents . . . obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered "). (Emphasis added.) The undersigned Assistant Attorney General fully acknowledged her duty not to disclose the records in her September 13 letter to Mr. Alexander.