Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County/Louisville Metro Government ("Louisville Metro") violated the Open Records Act in the disposition of Michelle Thomas' February 14, 2018, request for emails relating to her former employment with Louisville Zoo. For the reasons stated below, we find that Louisville Metro committed a procedural violation of the Act in failing to provide a detailed explanation as to why the records could not be provided within three (3) "business" days after receipt of the request. Louisville Metro further violated the Act in delaying production beyond the date of delivery it designated.
On February 14, 2018, Michelle Thomas, made an open records request to Louisville Metro for the following emails, for the period from Friday, December 1, 2017, to December 31, 2018: 1
Emails of Kelly Grether with Michele or Michele Thomas In the Body or subject.
Emails of Kelly Grether with Sandra or Sandra Frazier In the Body or subject. Emails of Stephanie Moore with Michele or Michele Thomas In the Body or subject.
Emails of Stephanie Moore with Sandra or Sandra Frazier In the Body or subject.
Louisville Metro responded to Ms. Thomas' request on March 19, 2018, stating that the "public records you seek are in active use, in storage or not otherwise readily available. Records will be available on or before close of business on 3/5/2018." Gregory Ward Butrum, attorney, filed an appeal with this Office on March 19, 2018, on behalf of Ms. Thomas. Mr. Butrum ("Appellant") stated that "the City has never provided the records requested ? ."
Annale E. Renneker, Assistant Jefferson County Attorney, responded to the appeal on behalf of Louisville Metro on March 26, 2018. Ms. Renneker first apologized in recognition that the initial response did not meet the requirements of KRS 61.872(5) 2; for not providing a detailed explanation for delaying production beyond three "business" days after receiving the request; for not having the records available to Ms. Thomas on March 5, as set forth in the initial response; and for not advising her that they would not be available as stated in the initial response. As Louisville Metro has recognized those violations of the Open Records Act, no further review of those errors is necessary.
Ms. Renneker also responded substantively to the appeal, explaining that the request for emails from December 1, 2017, to February 14, 2018, returned an extensive number of records from Louisville Metro's server, and the records had to be reviewed prior to release. The records were provided on March 22, 2018, and Ms. Renneker explained, in letters dated March 26 and 28, 2018, to this office, that responsive records "containing internal discussion on matters in which final action had not yet been taken were withheld pursuant to KRS 61.878(1)(i) and (j)." 3 Those letters also explained that names of potential donors to the Zoo Foundation were redacted pursuant to KRS 61.878(1)(a) 4 and KRS 61.878(1)(i). Mr. Butrum responded to these letters on March 29, 2018, stating that Ms. Thomas believes that there was "information she believes to exist, but was NOT provided ? ." Mr. Butrum then listed the types of records that his client believed should have been provided. 5 On April 6, 2018, this Office requested the redacted and unredacted records responsive to Ms. Thomas' request for an in camera review under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. Those records were provided on April 19, 2018. Based upon the following, this Office finds no substantive violations of the Act in Louisville Metro's final disposition of Ms. Thomas' request.
Expected Records That Were Not Provided . The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists. See Bowling v. Lexington-Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 07-ORD-188; 12-ORD-087; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 12-ORD-195. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 12-ORD-231. When some of the documents requested have been disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4; 12-ORD-087. We find that, based on the record on appeal, we cannot resolve the disparity in the records Ms. Thomas expected to be produced but which were not provided by Louisville Metro.
Redaction of Records Pursuant to KRS 61.878(1)(i) and (j) . Louisville Metro made redactions and withheld e-mails on the basis of KRS 61.878(1)(i) and (j). 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 Co., 637 S.W.2d 658, 659, 660 (Ky. App. 1982).
This Office is precluded from disclosing the contents of the records confidentially provided for our in camera review under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. However, Louisville Metro provided descriptions of the seven (7) categories 6 of records withheld pursuant to KRS 61.878(1)(i) and (j) and explained how the preliminary exemptions applied to each of those categories. In addition, Louisville Metro provided emails where potential donations were discussed, but redacted the names of the potential donors. 7 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. Based on our in camera review of the records provided, we find that Louisville Metro's descriptions of the records withheld or redacted adequately explained the nondisclosure of these e-mails pursuant to KRS 61.878(1)(i) and (j).
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Louisville Metro noted in its response that the request was for emails in the future (to December 31, 2018) and so the request was interpreted as being from December 1, 2017, to February 14, 2018.
2 KRS 61.872(5) states that: "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." Ms. Renneker's apology was in recognition that the initial response did not provide a detailed explanation of the cause for the delay as required by KRS 61.872(5). The absence of a detailed explanation constitutes a procedural violation of the Act.
3 KRS 61.878(1)(i) and (j) allow an agency to withhold:
"(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;" and
"(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
4 KRS 61.878(1)(a) permits an agency to withhold: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
5 The records identified that Ms. Thomas believes should have been provided are: "Emails regarding termination, dismissal, no longer employed[;]" Emails to and from John Walczak, Moore and Kelly Grather about why she was terminated, and what "egregious" act or acts she allegedly committed. She was told she was terminated for an egregious act[;]" "Emails between Kelly & Stephanie, Stephanie, Kelly & John regarding her dismissal, what needs to be done[;]" "Emails from Michele Whitehouse to Stephanie and/or John regarding her dismissal or termination[;]" and, "resignation letter from Michele Thomas."
6 We paraphrase those seven (7) categories as follows: 1. Preliminary communications passing on a private citizen's application for appointment to a board that has not yet been finalized. 2. Preliminary communications in which opinions are expressed and recommended regarding board appointments. 3. Preliminary communications referencing a meeting that was subsequently canceled, and a preliminary draft report that was not adopted by the agency. 4. Preliminary communications between board members regarding recommendations for topics at retreat. No final decision was made and communications remain preliminary. 5. Communication included draft of a PowerPoint presentation and requesting feedback. 6. Communication from board member expressing opinions and recommendations for retreat. 7. Communication regarding a budget that has not been approved and is therefore a draft.
7 The emails reference potential donations and potential donors. In Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818 (Ky. 2008), the Supreme Court of Kentucky placed future donors to public agencies "on notice that their gifts are being made to a public institution and, therefore, are subject to disclosure regardless of any requests for anonymity." 08-ORD-248, page 3 (citing Cape Publications, Inc., 260 S.W.3d at 824). Louisville Metro's argument regarding the application of the privacy exception to potential donors, fails in light of Cape Publications, Inc. , and the identity of those potential donors, once the donations are made and no longer subject to the preliminary exceptions of KRS 61.878(1)(i) and (j), will be subject to disclosure.