Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County/Louisville Metro Government ("LMG") violated the Open Records Act in the disposition of open records requests submitted by Gregory Ward Butrum ("Appellant"). For the reasons stated below, we find that LMG violated the Act by failing to properly invoke KRS 61.872(5) and provide the statutorily required explanation of the cause for delay, and by withholding two email messages that were not preliminary under KRS 61.878(1)(i) and (j). We also find that LMG subverted the intent of the Act by using repetitive responses composed of boilerplate language to delay Appellant's access to public records. We find that LMG properly withheld email messages pursuant to the attorney-client exemption, pursuant to KRE 503 in tandem with KRS 61.878(1)(l), and the exemption for preliminary records, pursuant to KRS 61.878(1)(i) and (j).
On August 17, 2018, Appellant appealed six records requests he submitted to LMG on behalf of Racheal Butrum. Appellant submitted the requests on August 16, and LMG responded to all on the same date. In the appeal, Appellant referred to the six requests by the numbers assigned by LMG: 8785; 8939; 8940; 8966; 8967; and 8976. Paul V. Guagliardo, Assistant Jefferson County Attorney, responded to the appeal on behalf of LMG on September 7, 2018.
With request 8785, Appellant sought a copy of an email message. LMG denied the request as attorney-client privileged under KRS 61.878(1)(l). On appeal, Appellant argues that the email is "from (Louisville Zoo Director) John Walzcak to (Assistant Director) Stephanie Moore. Neither are attorneys, and . . .any attorney client privilege was destroyed when Walczak published it to Moore." Appellant also argues that "[t]he request does not seek an email to or from an attorney, even if it does contain information uttered by an attorney." In response, LMG argues that the communication is exempt because it was sent to Dan Landrum, Assistant Jefferson County Attorney, who represents Mr. Walzcak and Ms. Moore as joint clients.
Appellant submitted request 8966 to obtain another email message and provided a detailed description and narrow delivery date range for the email. LMG's initial response denied the request, stating the record was in active use, in storage or not otherwise readily available, and involved multiple agencies necessitating legal review. LMG stated the record would be available on or before the close of business September 18, 2018. On appeal, Appellant argues that the response was "copied and pasted" because it is identical to other responses, and LMG issued each response within minutes of the others. In response, LMG describes LMG's search for records and identifies the employees that participated in the search, and states no responsive record could be located.
With request 8967, Appellant sought "ALL. . .emails from (LMG Director of Records Compliance) Michael L. Meeks to and, from John T. Walczak" from March 1, 2016 through August 15, 2018. LMG's initial response was identical to that for request 8966, and Appellant argues that it too was "copied and pasted." In response, LMG provided a detailed description of the search for responsive records and identified the employees that located and reviewed records. LMG stated it eventually disclosed one responsive record on September 6, 2018, but 306 records were withheld "as exempt under KRS 61.878(1)(i) or (j) (preliminary) or (l) (attorney-client privileged) ."
On September 7, 2018, Appellant filed a separate appeal relating to the 306 responsive records withheld. Annale E. Renneker, Assistant Jefferson County Attorney, responded for LMG. Ms. Renneker argues that some of the email messages are confidential communications between Louisville Zoo staff and Jefferson County Attorneys. She adds that some messages were "between John [Walzcak], [LMG Director of Records Compliance, Michael L. Meeks], and their respective staff members. . .regarding the [confidential] matters discussed in the immediately preceding paragraphs[.]" She argues that the other messages are discussion of "a question regarding the production of an email pursuant to an open records request" and are exempt, pursuant to KRS 61.878(1)(i) and (j).
On or about September 6, 2018, LMG disclosed the records responsive to requests 8939, 8940, and 8976. 1 Appellant does not raise any issues with those responses. According to 40 KAR 1:030 Section 6, 2 a records dispute is moot if the requested documents are made available after the requester initiates an open records appeal. 11-ORD-189, p. 3. Accordingly, the portion of the appeal related to those requests is moot. On October 15, 2018 we consolidated the remaining appeals and requested copies of the withheld records for in camera review, pursuant to KRS 61.880(2)(c) 3 and 40 KAR 1:030, Section 3. 4
Violations of KRS 61.872(5) and KRS 61.880(4) . LMG's initial responses to 8966 and 8967 violated the Act because they failed to invoke the statute that permits postponing access to public records. If a response requires more than the three business days mandated in KRS 61.880(1), the public agency is required to invoke KRS 61.872(5), which is the only provision of the Act that authorizes postponing access to public records. See 01-ORD-140, p. 3. KRS 61.872(5) states:
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.
LMG violated the Act in failing to cite KRS 61.872(5), upon which it presumably relied for the delay between its initial response and its production of responsive records.
LMG further violated the Act by failing to provide a detailed explanation of the reason for delay, as required by KRS 61.872(5). LMG attributed the delays to, "the request(s) involved multiple agencies and legal review is necessary." The need to review and redact does not constitute a detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 12-ORD-227.
LMG addressed the delay on appeal by describing the search for records and arguing that Appellant's requests were broadly framed and produced volumes of responsive records. Nevertheless, LMG subverted the intent of the Act, within the meaning of KRS 61.880(4) , 5 when it used repetitive responses composed of boilerplate language to postpone Appellant's access to public records. LMG's responses to requests 8966 and 8967 were due on or before August 21, 2018, but the agency delayed Appellant's access for approximately eleven business days. The repetitive boilerplate responses of LMG do not meet the "detailed explanation" requirement stated in KRS 61.872(5). The vague responses not only caused Appellant to wait for access to public records beyond the time permitted by KRS 61.880(1), but also denied Appellant an adequate explanation of the cause for delay and, thereby, denied him a meaningful opportunity to challenge the delays on appeal.
This office has previously found that LMG postponed responses to this Appellant's requests in violation of KRS 61.872(5), and there is no evidence in the record that the agency has addressed the issues this office identified. On September 12, 2017, we rendered 17-ORD-181, where, just as here, we found LMG failed to invoke KRS 61.872(5), and used "boilerplate" language that did "nothing to enlighten the public as to why the requested records were not produced." See 17-ORD-181, p. 4. On May 8, 2017, we rendered 17-ORD-082, where, as in other decisions, we found that LMG failed to reference KRS 61.872(5) in its initial response and relied on "boilerplate language" to explain the delay. See 17-ORD-082, p. 5. In cases 17-ORD-110 and 18-ORD-100, LMG admitted on appeal that its initial responses lacked the detailed explanation required by KRS 61.872(5). The errors we identify in this appeal are ones that LMG has repeatedly relied on to delay this Appellant access to public records. Seeing no evidence that LMG has acted to correct the issues we have identified, or improve the process for responding to requests, we find that LMG subverted the intent to the Act, short of denial of inspection, under KRS 61.880(4).
Request No. 8785 . Based on our in camera review, LMG properly withheld this email message as a privileged communication. The message contains a communication between Louisville Zoo staff and describes a specific legal issue. The message sets a meeting date to discuss the legal issue, and County Attorneys are copies on the message so they can attend the meeting and meaningfully participate. This communication meets the criteria for the attorney-client privilege under KRE 503, operating in tandem with KRS 61.878(1)(l). 6
The Kentucky Court of Appeals has recognized that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] by the Kentucky General Assembly." Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). The court reasoned as follows:
[The attorney-client privilege, codified at KRE 503,] recognizes that sound legal advice and advocacy serve vital public purposes and that such advice and advocacy depend upon a guarantee of confidentiality between attorney and client. Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981). KRE 503(b) provides that:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:
The attorney-client privilege attaches to a confidential communication "made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]; the client, the client's representative, the lawyer, or the lawyer's representatives." The St. Luke Hospitals, Inc., v. Kopowski, 160 S.W.3d 771, 776 (Ky. 2005)(quoting Haney v. Yates, 40 S.W.3d 352, 355 (Ky.2001)). The record establishes that Mr. Walzcak and Ms. Moore are both LMG employees represented by the County Attorney, and the message was only copied to LMG employees and Assistant County Attorneys. As such, the email is a communication between two of the four parties listed in KRE 503(b). Accordingly, we find that LMG properly withheld the email as a privileged attorney-client communication.
Request No. 8966 . LMG asserts that it could not locate an email message that fit the description provided in request 8966, and the record on appeal does not raise doubt about this claim. 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. This office has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists in the possession of the agency. See Bowling v. Lexington-Fayette Urban Cty. 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"); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence").
While Appellant's specific description of the email suggests that he had some reason to believe the record exists, there is no affirmative evidence to support finding that the message exists. The Act imposes the burden of proof in these appeals on the public agency per KRS 61.880(2)(c), and a public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). LMG satisfied that burden by describing its search for records and identifying the employees that conducted the search. In the absence of the requisite prima facie showing, or any facts or evidence to support Appellant's claim, this office must affirm the agency's denial of his request. See 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [[records]] were created or still exist"). LMG complied with its duty under the Act when it conducted a good faith search for, but could not produce, responsive records for request 8966. 7
Request 8967 . LMG withheld 306 pages of email messages as either privileged attorney-client communications, or as preliminary drafts, "pursuant to KRS 61.878(1)(i) and (j)." 8 One additional email message was withheld as solely preliminary. This Office is precluded from disclosing the contents of the records provided for our in camera review under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. Based on our review, we find that LMG permissibly withheld all but two messages, but violated the Act in withholding those two messages.
With respect to the messages LMG properly withheld, our in camera review shows that LMG accurately described the messages as exchanges between subordinate staff and superiors regarding record searches. The messages consist of directions from superiors to staff regarding keyword searches, but they also contain staff replies, in which staff express opinions and recommendations. This office has found that withholding such exchanges produces "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." See OAG 88-85, p. 4. There is no evidence in the record that any of these email messages were incorporated into a final agency action. As such, LMG properly relied on KRS 61.878(1)(i) and (j) to withhold the emails related to record searches.
Several of the messages are exchanges between County Attorneys and LMG employees. The messages contain legal questions and advice, and are clearly "for the purpose of facilitating the process of rendering professional legal services to a client[.]" See KRE 503(a)(2). In addition, the messages are marked "Privileged Communication" and are copied only to other attorneys and LMG staff. As such, these emails fit the description of records subject to exclusion by KRE 503. We find that LMG properly relied on KRE 503 and KRS 61.878(1)(l) in withholding the email exchanges with County Attorneys.
However, we find that two email communications do not meet the description of records properly withheld under these exceptions. 9 The January 22, 2018 message from the Jacinta Scruggs, Open Records Specialist Intake, initially found on page 3 of the record, merely provides notice of an open records request and its due date. The email does not contain a confidential communication that would trigger the attorney-client privilege, and it does not "contain a 'full and frank discussion of ideas among agency members' that would be the type of communication protected under the preliminary exceptions" of KRS 61.878(1)(i) and (j). See 16-ORD-235. As such, LMG violated the Act in withholding the message.
The second message LMG improperly withheld relates to a request LMG numbered as 5313. The email, first located on pages 24 through 25, is a May 25, 2017 message from the LMG Director of Records Compliance, Mr. Meeks, to Appellant's spouse, Mrs. Butrum. The message advises that there were technical issues impeding the search for records. Request 5313 was the subject of decision 17-ORD-110. LMG supplemented the record of that appeal with a copy of Mr. Meeks' email message. 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.) Therefore, there is evidence in the record that this email was adopted by LMG as part of a final action, and its exempt status was lost. We find that LMG violated the Act when it withheld this email message.
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.
Andy Beshear
Attorney General
J. Marcus Jones
Assistant Attorney General
Footnotes
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