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 Office of the Governor violated the Open Records Act in its disposition of Brad Bowman's March 26, 2018, request for "copies of all letters referenced in Gov. Bevin's YouTube video under the Bevin-Hampton Administration channel on March 24, 2018." For the reasons that follow, we find no violation of the Act.
In his appeal, which this office received on April 4, 2018, Mr. Bowman stated that he received no response to his request. In a letter to this office dated April 11, 2018, the Governor's Deputy General Counsel, Matthew F. Kuhn, provided a copy of a letter from the Office of the Governor to Mr. Bowman, dated March 29, 2018, which denied the request under KRS 61.878(1)(i) as the letters constituted "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " This response, on its face, was timely under KRS 61.880(1); however, Mr. Bowman, in a reply letter, now alleges he did not receive it until April 6, 2018. Since we cannot conclusively resolve a factual dispute concerning the timeliness of the response, 1 we proceed to the merits of the agency's denial. 2
This office has consistently recognized that KRS 61.878(1)(i)'s exception for "correspondence with private individuals" does not extend to "all writings from individuals to a government agency." OAG 90-142. For example:
Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee, or enter into a government contract based on bids.
Id. Thus, in 00-ORD-168, we found that the Purchase Area Development District's Community Reuse Organization ("PACRO") could not deny public access to a letter from the U.S. Department of Energy advising its employee Jimmie Hodges that he would not have a legal conflict of interest working for ELR Consultants, when PACRO had relied upon that letter in hiring ELR as an outside consultant. Our primary basis for so holding was the fact that the letter "addressed an area relevant to the negotiations between PACRO and ELR" and Mr. Hodges had "transmitted a copy of the letter to PACRO . . . as a means of demonstrating" to PACRO the absence of a conflict of interest. As such, in accordance with the rule stated in OAG 90-142, the agency was "expected to rely on the correspondence to take some action"; namely, hiring ELR as a consultant.
In the course of our analysis in 00-ORD-168, we made the following statement:
The exception codified at KRS 61.878(1)(i) is generally reserved for that narrow category of public records that reflects letter exchange by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality.
We went on to observe that "analysis of the propriety of a public agency's reliance on KRS 61.878(1)(i) is largely fact specific," guided by the rule in KRS 61.871 that exceptions to the Open Records Act are to be "strictly construed." With regard to the Department of Energy's letter to Mr. Hodges, we stated:
Clearly, the letter in dispute does not qualify for exclusion as correspondence with a private individual since it was solicited by a federal employee in anticipation of his resignation from public employment. Nor can it persuasively be argued that the candor of the correspondents was dependent upon assurances of confidentiality [because] Mr. Hodges promptly transmitted a copy of the letter to PACRO. . . .
Thus, under the facts of 00-ORD-168, we found that the letter could not be withheld in reliance on KRS 61.878(1)(i) because PACRO had received it as part of Mr. Hodges' effort to secure the consulting contract for ELR.
The majority 3 of our other decisions rejecting the application of the "correspondence with private individuals" exception have, in like manner, been primarily based on the fact that the correspondence from private individuals was intended to petition or advocate for particular action by a public agency on a specific matter in which the agency was empowered to make a decision. See, e.g. , 99-ORD-220 (applications for licenses to conduct business); 01-ORD-86 (applications for purchase of conservation easements); 17-ORD-156 (requests to Louisville Metro Government for mayoral proclamations to be made).
In 04-ORD-192, we held that the exception did not apply to a petition to the city commissioners of Danville which advocated for the sale of city-owned land to a certain developer who sought to purchase it, because the petition was "a communication upon which the commission [was] expected to rely in taking action relative to the sale of the property." Accordingly, the petition "became an open record upon submission to the commission notwithstanding the fact that the commission had taken no final action in [the] matter." Similarly, in 07-ORD-181, we found that correspondence from private individuals to Lexington-Fayette Urban County Council members, advocating for particular action on a pending rezoning proposal, was outside the scope of KRS 61.878(1)(i) because the correspondence "was submitted with the goal of advocating or recommending a certain course of action" and nothing "suggest[ed] that the candor of the correspondents was dependent upon assurances of confidentiality. "
In 12-ORD-134, we applied the same rule to comments from individuals submitted to the Oldham County Public School District in response to an invitation for public input via a comment page on the district's website. The school board had made this comment page available for a certain period of days, for the specific purpose of allowing the public to comment on the candidates for superintendent, following a candidate forum. We reached the same result as in 07-ORD-181, rejecting the application of KRS 61.878(1)(i), because "the candor of the commenters did not depend on any assurances of confidentiality [and] they expected the board to rely on the comments in arriving at its final selection" of a superintendent.
In contrast to these decisions, in 08-ORD-140, we upheld the Louisville Metro Council's invocation of KRS 61.878(1)(i) as to an e-mail exchange between a private citizen and a representative of council member Stewart Benson's office regarding a piece of property, "in view of the correspondent's repeated requests that his/her identity not be disclosed, and the nature of his/her communications with Mr. Benson's office." Distinguishing 07-ORD-181, we stated:
[T]he correspondent does not petition Mr. Benson or the Council by advocating or opposing any particular course of action, but instead expresses concerns , and asks a number of questions, about the referenced property. Certainly, there is nothing in the record on appeal that suggests that he/she transmitted these emails with the expectation that Mr. Benson, or the Council generally, would rely on them in taking action. The record on appeal does, however, confirm, that the emails were exchanged "under conditions in which the candor of the correspondents depended on assurances of confidentiality. " While we find no request for anonymity in the initial email he/she submitted to Mr. Benson's office, the Council's response to [the] appeal expressly states that "the correspondent wishes to remain anonymous. "
(Emphasis added.) In those circumstances, we found that the e-mails constituted "correspondence with private individuals" within the meaning of the exception.
In the present appeal, we have requested to examine the disputed correspondence confidentially pursuant to KRS 61.880(2)(c), and the Office of the Governor has complied with this request. The records consist of five communications submitted via the contact form on the Governor's Office website. 4 As the Governor revealed in his brief YouTube speech on March 24, 2018, the individuals sending the messages were three active teachers, one retired teacher, and one private citizen who was not a teacher. All five messages, which were written between October 19, 2017, and March 14, 2018, expressed concerns about Kentucky's public pension crisis and gave generalized statements of support for the Governor's efforts to address the problem. One teacher confided some personal concerns, including some health problems, while the others mentioned personal feelings of frustration or embarrassment with negative attitudes displayed by their colleagues. One of the teachers expressly stated a desire to remain anonymous.
Significantly, the correspondence contained no specific advocacy of any particular action to be taken by the agency. One message, from October 2017, expressed a general approval of the Governor's pension reform proposal, while another, from March 2018, made a vague statement that the correspondent understood the potential impact of Senate Bill 1; but these were the most specific remarks in all the correspondence. In contrast to the cases in which we have rejected agencies' reliance on KRS 61.878(1)(i), there is no indication that these comments were submitted to petition or advocate for a specific action by the Office of the Governor. Furthermore, unlike the school district's comment page in 12-ORD-134, the Governor's contact page was not merely a temporary forum established to receive comments on a specific pending matter. Like the e-mails in 08-ORD-140, the correspondence "does not petition" for any concrete action, but essentially "expresses concerns."
In its response to this appeal, the Office of the Governor argues that "conditions in which the candor of the correspondents depends on assurances of confidentiality, " 00-ORD-168, are not mandated by the language of KRS 61.878(1)(i) and therefore cannot be a strict requirement for application of the exception for "correspondence with private individuals." We agree only insofar as 00-ORD-168 acknowledged that any analysis of the exception must be fact-specific. In 08-ORD-140, we recognized that there need not be an express assurance of confidentiality by the public agency; nor, indeed, must confidentiality be requested by the private individual at the time of the communication. Rather, the conditions affecting the candor of the correspondents must be assessed in view of the totality of the circumstances.
Here, we recognize that the debate surrounding public pensions is taking place in a politically-charged environment, particularly in regard to teachers. As the Office of the Governor points out, these individuals chose to submit their remarks through the Governor's contact form, rather than through more public means such as open letters or social media. The overall tenor of the messages is more personal than might be expected in an open forum, including references to health problems and criticism by teachers of the attitudes of their colleagues. In examining the Governor's contact page, we observe that name, mailing address, and e-mail address are required fields; thus, the correspondents had no choice but to provide this information to the Office of the Governor even if they wished their communications to be treated as anonymous. In view of these circumstances, it is reasonable to conclude that the communications took place under conditions in which a perceived assurance of confidentiality had some effect on the candor of the correspondents. 5 Accordingly, we find that the Office of the Governor properly withheld these communications as "correspondence with private individuals" under KRS 61.878(1)(i).
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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