Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Office of the Governor violated the Open Records Act in the disposition of multiple requests for records submitted by counsel for the Poor People's Campaign, Margaret O'Donnell, Esq. ("Appellant"). For the reasons stated below, we find that the Office of the Governor ("Governor's Office") initially violated KRS 61.880(1) by failing to clearly state in its initial response that responsive records did not exist, but corrected the error on appeal. The Governor's Office properly denied disclosure of email messages pursuant to the exemptions under KRS 61.878(1)(i) and KRS 61.878(1)(j), but improperly denied access to an email attachment. The Governor's Office violated KRS 61.872(4) when it directed Appellant to submit he request for security records to the Kentucky Department for Libraries and Archives (KDLA). The Governor's Office also violated the Act when it failed to search material archived at KDLA for responsive records.
On June 7, 2018, Appellant submitted an open records request to the Governor's Office stating twelve (12) separate requests for records, specifying that they applied to "all buildings on the Capitol grounds, including the Capitol building, the Capitol Annex, the Kentucky Capitol Education Center and the Governor's Mansion." Notably, the 10th request sought records concerning security incidents.
On June 11, 2018, Matthew F. Kuhn, Deputy General Counsel for the Governor's Office responded to the requests. He informed Appellant that "[d]ue to the expansive scope of your request. . .and the fact that potentially responsive documents, if any, will be in active use or are not readily accessible, the Governor's Office will not be able to respond. . .until June 29, 2018." On June 25, Mr. Kuhn contacted Appellant stating that "[t]he Governor's Office is still on track to respond to your. . .request by June 29, 2018, save any last-minute complications." However, regarding the request for security records, he asked that Appellant clarify the request and "please provide a date range for this request, as you have done for the others[.]"
On June 29, 2018, Mr. Kuhn responded to Appellant's requests, with the exception of the 10th request. The response stated that, "[r]ecords that are responsive to your other requests and subject to disclosure are enclosed." Mr. Kuhn informed Appellant that "several responsive email chains as well as one attachment" were withheld, pursuant to KRS 61.878(1)(i) and (j). He stated that "[w]ith one exception, these withheld records are pre-decisional documents on which final agency action has not been taken." He also stated that "[t]he one exception is a preliminary draft of a document and accompanying email [. ]"
On July 3, 2018, Appellant sent an email to Mr. Kuhn, clarifying that she requested records for security incidents for the past 10 years. On July 9, 2018, Mr. Kuhn denied the request as overly burdensome, citing KRS 61.872(6). Mr. Kuhn also stated "[t]he aspect of your request directed at the time prior to Governor Bevin's term would perhaps be better directed to the [KDLA]."
On July 31, 2018, Appellant appealed and raised four issues: (1) lack of a response or explanation or claim of exemption for Requests Nos. 1, 3 and 4--12; (2) objected to exemptions under KRS 61.878(1)(i) and KRS 61.878(1)(j); (3) the request for security records did was not an unreasonable burden, and the Governor's Office did not present "clear and convincing evidence to sustain such a refusal"; and (4) the Governor's Office violated KRS 61.872(4) by failing to direct her to the "specific Agency that maintains security records[.]"
In his response to the appeal, Mr. Kuhn argued that his June 29, 2018 letter impliedly responded to all 12 of Appellant's requests, and that the records he identified were all of the responsive records, except with respect to Request 10. As to the 10th request, he stated, "[t]he Governor's Office explained, and continues to assert, that Request 10 is deficient because (i) it imposes an unreasonable burden under KRS 61.872(6) and (ii) it does not identify the requested records with sufficient specificity under decisions like 13-0RD-077." However, he stated the Governor's Office responded to the request by noting it located no responsive records other than those referenced in the June 29 letter.
Regarding the emails and attached document withheld under KRS 61.878(1)(i) and KRS 61.878(1)(j), Mr. Kuhn argued the records were not part of a final agency action. He stated the attachment was preliminary draft because it was unsigned and the final version was signed. He argued the initial email message discussed guidelines and notes for which revisions were being considered, and the response email discussed "thoughts regarding the guidelines and application form." He also noted that "as of August 14, 2018, final agency action still has not been taken on the issues discussed in the. . .emails. " Mr. Kuhn argued even if final agency action had occurred, the emails were exempt unless adopted and made part of such final agency action. To facilitate a correct resolution of this matter, pursuant to KRS 61.880(2)(c) 1 and 40 KAR 1:030, Section 3, 2 this office requested that the Governor's Office forward the copies of the records denied pursuant to KRS 61.878(1)(i) and KRS 61.878(1)(j) for in camera review. The Governor's Office complied.
Regarding the disposition of requests Nos. 1, 3 and 4-12, we find that the Governor's Office's initial response violated KRS 61.880(1) by insufficiently advising of the nonexistence of additional responsive records, but corrected the error on appeal. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. 3 However, the agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In other words, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 00-ORD-82. A response like that of the Governor's Office's which merely implies that no additional responsive records exists is insufficient under the Act.
The Governor's Office corrected the error on appeal by clearly stating that no additional responsive records exist. When a public agency denies that additional responsive documents exist, as the Governor's Office has stated on appeal, and the record on appeal does not contain any evidence to refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 11-ORD-037 (denial upheld in the "absence of any facts or law importing the records' existence").
While Appellant disputes the claim that no additional records exists, arguing that "[b]oth [responses] subvert the intent of the Kentucky Open Records Act [.],"the record on appeal is devoid of any evidence to conclusively refute the claim of the Governor's Office. "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an open records appeal. 10-ORD-178, p. 2; 12-ORD-162. When some of the documents requested have been disclosed, this office has 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. Therefore, we find that the Governor's Office initially violated KRS 61.880(1) in its disposition of requests Nos. 1, 3 and 4-12, but corrected the error on appeal.
Regarding the withheld email messages, we find that the Governor's Office properly withheld those records. Respectively, KRS 61.878(1)(i) and (j) authorize nondisclosure of:
(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.
The Attorney General has affirmed public agency denial of open records requests for access to preliminary drafts, notes, correspondence with private individuals that are not intended to give notice of final agency action, and inter-office communications used in formulating opinions and recommendations pursuant to KRS 61.878(1)(i) and (j). "[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision." OAG 88-85, p. 4; see also OAG 86-64; OAG 88-24; OAG 89-39; OAG 90-97; 97-ORD-97.
In 99-ORD-206, we decided that e-mail transmissions between state agency employees in which opinions were expressed were properly withheld because they were never incorporated into final agency action. The conclusion underlying that decision is applicable to the email messages in this appeal. The disputed email chains are expressions of opinion by employees within the Governor's Office, and include some suggestions for future policy. There is no evidence that these email messages were incorporated into or adopted as part of any final action. Accordingly, we find that the Governor's Office properly withheld the email messages pursuant to KRS 61.878(1)(i) and (j).
However, upon in camera review of the withheld records we find that an attachment contained in one of the email messages is not exempt from disclosure under KRS 61.878(1)(i) and (j). The withheld attachment is identical to a responsive record in 18-ORD-175 that the Kentucky State Police ("KSP") disclosed to Appellant pursuant to her request in that matter. The Governor's Office argued the attachment was an unsigned preliminary draft. Preliminary drafts "represent a tentative version, sketch or outline of a formal and final written product[.]" 18-ORD-134 (quoting 05-ORD-179, p. 5). However, KSP publicly disclosed the final draft of the record with a signature three days prior to the email message at issue here. The disclosed final draft and the record the Governor's Office withheld are identical in all respects, with the exception of the signature. The Kentucky Supreme Court has held that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992). The fact that KSP made the final signed record available to the public is sufficient evidence that it was "adopted as part of a final action. " Further, the fact that the KSP record and the attachment are identical demonstrates that the attachment is no longer "a tentative version, sketch or outline of a formal and final written product[.]" As such, the Governor's Office violated the Act in withholding the attachment under KRS 61.878(1)(i) and (j).
Regarding Appellant's request number 10, we find that the Governor's Office violated the Act in its disposition. Appellant clarified that she was requesting security records over the past 10 years, and the Governor's Office directed her to KDLA because her request related to records of the prior administration. That disposition violated KRS 61.872(4) because the Governor's Office is the official custodian for records of prior administrations. As such, the Governor's Office also violated the Act when it failed to review material archived at KDLA as part of the search for responsive records.
The Governor's Office violated KRS 61.872(4) 4 by directing Appellant to KDLA. The Governor's Office Records Retention Schedule demonstrates that the Governor's Office is the custodian for records of prior administrations. According to the retention schedule, the KDLA merely retains those records. The schedule addressing correspondence files states, "Retention and Disposition. Transfer to the State Archives Center at the end of the gubernatorial term for permanent retention. " Governor's Office Records Retention Schedule, Series 04347, Governor's Official Correspondence File . The schedule that addresses executive orders states, "Retention and Disposition. File with the Governor's Official Correspondence File (04347) and transfer to the State Archives Center at the end of the gubernatorial term for permanent retention. " Governor's Office Records Retention Schedule, Series 04354, Executive Order File (Duplicate) -- (Original in Secretary of State's Office) . These schedules show that the Governor's Office remains the custodial agency for records of prior administrations archived at KDLA. As such, the Governor's Office violated the Act when it advised Appellant to direct her request to KDLA.
As the custodian of archive records, the Governor's Office violated the Act in failing to search the archives to locate records responsive to Appellant's request. A public agency responding to an open records request must "expend reasonable efforts to identify and locate the requested records." 95-ORD-96. A public agency is also required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" Id. (quoting Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). As such, a public agency is required to direct a search "not only to the first and most obvious places where responsive records could be located but to all places that might yield responsive records." 12-ORD-153. The record on appeal does not contain any evidence to suggest bad faith on the part of the Governor's Office, but a search that omitted archived records was insufficient. The Governor's Office must search material archived at KDLA for records responsive to Appellant's request for security records.
The record does not support the claim that honoring the request would create an unreasonable burden. A public agency is required to support a claim that honoring a request would create an unreasonable burden with clear and convincing evidence. See Commonwealth v. Chestnut, 205 S.W.3d 655, 664 (Ky. 2008); KRS 61.872(6). 5 We have recognized that "[t]his burden is not sustained by the bare allegation that the request is unreasonably burdensome. " 00-ORD-72, p. 4. In this case, the Governor's Office merely cited KRS 61.872(6) and referenced a prior decision of this office, but did not support the claim with facts or evidence of the specific burden imposed on the agency. Therefore, the Governor's Office failed to satisfy its burden of proof relative to KRS 61.872(6).
A party aggrieved by this decision shall 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 proceeding.
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