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 Office of the Attorney General ("OAG"), Office of Rate Intervention ("ORI") violated the Open Records Act in the disposition of requests for records from David I. Dawley ("Appellant"). 1 As set forth below, we find that ORI consented to Appellant's emailed open records requests by a clear course of conduct. ORI's response to the first request violated the Act by failing to affirmatively advise Appellant that ORI did not possess the responsive record and by failing to provide the name and location of the records custodian in actual possession of the responsive record. ORI violated the Act by failing to issue its response to Appellant's second request within three business days, and by failing to properly invoke KRS 61.872(5). However, ORI properly withheld responsive meeting notes as preliminary, pursuant to KRS 61.878(1)(i). 2
Beginning May 12, 2018, Appellant initiated a series of email communications with an employee of Duke Energy of Kentucky ("Duke Energy"). Appellant initiated the exchange to discuss his ability to "opt out" of a Duke Energy's smart meter installation program. ORI employee Heather Napier was copied on the emails. After approximately two weeks without a response from Duke Energy, Appellant began addressing his emails directly to Ms. Napier. Ms. Napier and Appellant discussed the smart meter "opt-out" program and whether it was being properly applied.
On October 15, 2018, Appellant introduced an open records request into the conversation with Ms. Napier. Appellant asked, "would you be so kind as to provide me with a copy of the exact verbiage of the 'smart' meter 'opt out' agreement as it was originally agreed to between Attorney General Beshear and Duke Energy's representative (Ms. Laub? )." On October 15, 2018, Ms. Napier responded by providing Appellant a link to a Public Service Commission ("PSC") website. The website provided access to a PSC Order that was responsive to Appellant's request. Ms. Napier did not affirmatively state whether ORI was in possession of a record responsive to the request.
On October 16, 2018, Appellant responded to the disposition of his request by email. Appellant stated, "the link you provided me is not totally what I had in mind[.]" Appellant made a second request stating, "I would like to see a copy of the 'smart' meter 'opt out'-related precursor documents to this PSC order from the AG -- Duke Energy meeting covering that topic to compare what AG Beshear and Ms. Laub (?) of Duke Energy actually agreed to in conference[.]" Five business days later, Appellant asked about the status of the request and made it clear that he was proceeding under the "Kentucky records request law." Ms. Napier responded:
I have attempted to provide you any and all information that you have previously requested. As to your original question, I have been advised. . .that utilities are required to draft and tender the specific tariffs in which they request Commission approval for. Therefore, as to who is responsible for the exact wording in Rider AMO, it would be the utility, Duke Energy Kentucky.
On November 14, 2018, Appellant replied by opining that it was "implausible" that the Attorney General and Duke Energy representatives would meet, "but keep no notes nor transcripts nor records of that meeting[.]" Appellant stated, "it is reasonable to conclude that very precisely detailed precursor documents to the. . .PSC order. . .do exist and should, of course, be available for public scrutiny. I still would like to see a copy of such documentation [.]" After receiving no response, Appellant appealed through the OAG's email portal designated for receiving open records requests from the public.
In response to the appeal, ORI explains the denial of Appellant's second request. ORI states that "in as much as [Appellant] is requesting 'a copy of the record of the 'opt out' meeting between Attorney General Beshear and Peggy Laub of Duke Energy,'" no such meeting ever took place. However, ORI states that conferences did take place between Assistant Attorneys General and representatives of Duke Energy. ORI argues that those records are exempt as preliminary, pursuant to KRS 61.878(1)(i), because they are "intra-office notes" and "were not incorporated into any final action by the OAG." Pursuant to KRS 61.880(2)(c) 3 and 40 KAR 1:030, Section 3, 4 we requested copies of the notes for purpose of in camera review. We also asked that ORI provide documentation of its search for all responsive records.
ORI Consented to Appellant's Emailed Open Records Requests by a Clear Course of Conduct . The Attorney General has an online portal for accepting open records requests from the public, but Appellant bypassed that portal and submitted his two requests directly to an ORI employee by email. Nevertheless, we find that ORI was obligated to follow the requirements of KRS 61.880(1) 5 in responding to those requests.
Ordinarily, "e-mail is not a permissible method of delivery under the Open Records Act. " 09-ORD-190, p. 3 (citing 09-ORD-116); 16-ORD-088. KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
Accordingly, a public agency may require a request or application be in writing and require a signature in order to trigger the requirements of KRS 61.880(1) . 94-ORD-101, p. 3; 10-ORD-106. However, an emailed request may trigger the requirements of KRS 61.880(1) upon consent of the parties. We recognize that the requester and the public agency "may enter into an agreement, or consent by a clear course of conduct, to transact their open records business by email. " See, e.g. , 99-ORD-129; 03-ORD-162; 09-ORD-224; 17-ORD-193. Such a "course of conduct arises when the requester transmits, and the agency accepts without objection, an open records request by email. " 12-ORD-036 n. 1 (citing 98-ORD-167, p. 5).
In addition, a public agency may not reject a request simply because the requester fails to use a specific or preferred form. We have observed:
While a public agency may require a written application. . .there is nothing in [KRS 61.872(2)] which authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
94-ORD-101, p. 3. Here, Appellant used email to submit his request for records. ORI disputes that Appellant submitted an open records request in the October 15 message. However, the record shows that Ms. Napier understood the message to be a request for a public record and accepted it without objection. Ms. Napier assisted Appellant by locating a responsive record and providing him a corresponding link rather than directing him to OAG's open records portal. The record shows that ORI consented to the request by a clear course of conduct and cannot penalize Appellant for bypassing the preferred email portal. Accordingly, the requirements of KRS 61.880(1) shall apply.
ORI's Response to Appellant's First Request Violated KRS 61.880(1) and KRS 61.872(4) .
ORI responded to Appellant's October 15 request by providing a link to a responsive order on the PSC website. The response violated KRS 61.880(1), because ORI did not provide an affirmative statement indicating whether it possessed a responsive record. Appellant sought a record bearing "the exact verbiage of the 'smart' meter agreement." On appeal, ORI states that the only documentation in its possession regarding the smart meter "opt out" is presented in the PSC agreement. However, a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists" with the necessary implication being that a public agency discharges its duty under the Act in affirmatively indicating that no such record exists (or is in the possession of the agency). OAG 91-101; 09-ORD-116; 18-ORD-160. ORI provided Appellant access to a responsive record in the possession of PSC, but it was required to respond to Appellant and indicate whether ORI possessed a responsive record. In failing to provide such a response, OAG violated KRS 61.880(1).
ORI also violated the Act by failing to provide contact information for the official custodian of the PSC Order. While ORI provided Appellant with a link to the responsive PSC Order, it violated KRS 61.872(4), which states, "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " ORI provided Appellant access to a responsive record in PSC's possession. However, the Act required ORI to also provide Appellant the name and location of the official custodian of the responsive record. Failing to provide that information in the written response to the first request violated KRS 61.872(4).
ORI's Response to Appellant's Second Request Violated the Procedural Requirements of KRS 61.880(1) and KRS 61.872(5) .
ORI did not comply with the procedural requirements of the Open Records Act in responding to Appellant's second request. KRS 61.880(1) requires a public agency to issue a written response to an open records request within three (3) business days. In construing the language of KRS 61.880(1), the Kentucky Court of Appeals states: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 07-ORD-226; 12-ORD-211; 17-ORD-179. The Attorney General has consistently recognized that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125; 05-ORD-190; 09-ORD-186; 12-ORD-085; 15-ORD-152. Thus, the required written response is mandatory, and ORI violated KR 61.880(1) in failing to issue a timely written response to the second request.
ORI also failed to properly invoke KRS 61.872(5) when it delayed the response to the second request. 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.
ORI violated the Act in failing to cite KRS 61.872(5) and provide a legitimate detailed explanation of the cause for delay and provide a place, time and earliest date on which the public record would be available for the second request.
ORI Corrected Its Error on Appeal Regarding Non-Existent Records and Properly Withheld Meeting Notes .
ORI denied the existence of notes of a meeting between Attorney General Beshear and Peggy Laub of Duke Energy, claiming no such meeting ever took place. A public agency cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing that the records exist. See
Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005). However, a public agency is required to "expend reasonable efforts to identify and locate the requested records. " 95-ORD-96, p. 4. Further, a public agency must specify the steps taken to identify and locate records in order to fully discharge its duty under the Act. Id. Accordingly, we find that ORI violated the Act when it failed to describe its search for the nonexistent records in the initial response to Appellant's second request. See
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").
However, ORI corrected the error on appeal by disclosing the fact that Assistant Attorneys General participated in the conference with Duke Energy. ORI also disclosed that those attorneys searched their electronic and non-electronic case files to locate responsive records. Those responsive records were produced for this office for purposes of in camera review. As for the adequacy of the search conducted, a public agency is only required to "expend reasonable efforts to identify and locate the requested records." 95-ORD-06. Thus, the agency need only "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Id. (quoting
Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D.Col. 1978)). 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. Nonetheless, there is no evidence in the record that a meeting took place between Attorney General Beshear and Peggy Laub of Duke Energy. Therefore, the record supports ORI's denial of such notes based on their nonexistence.
Regarding the responsive records relating to the Assistant Attorneys General that participated in the Duke Energy meetings, we find that ORI properly identified those responsive records as preliminary, pursuant to KRS 61.878(1)(i). The notes contain lists of points of discussion compiled by ORI staff and provided to the attorneys participating in the meeting. The notes also contain the attorney's memories, impressions, and opinions related to the meeting. 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 that the notes were adopted, incorporated, or otherwise served as a basis for the PSC Order or any other final agency action. As such, ORI properly relied on KRS 61.878(1)(i) to withhold the notes of the Assistant Attorneys General that participated in the Duke Energy meeting.
Appellant argues that ORI is required to create a record of its meetings with Duke Energy accessible to the public, pursuant to KRS 171.640. In KRS 61.8715, the General Assembly recognized that there is "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records [.]" However, we ordinarily "decline the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the [Department for Libraries and Archives]' what records they must create." 95-ORD-48; 16-ORD-099; 12-ORD-019 n. 3. Accordingly, we have affirmed the principles articulated in OAG 78-231 and its progeny relative to the creation of records, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5.
In addition, the Attorney General's scope of review during an open records appeal is governed by KRS 61.880(2)(a), 6 which does not authorize the Attorney General to determine whether a public agency has failed to adhere to the requirements of KRS 171.640, or violated the Open Records Act in so doing. 16-ORD-099. Appellant argues that ORI should have created notes for the public review, stating:
Lacking any records of that meeting and the precise details of the resulting 'smart' meter 'opt out' program agreed to would mean that the specifics of the agreed to 'opt out' program would have to have been conveyed verbally from memory via Duke Energy to the PSC, a very unlikely and certainly unreliable way to conduct either government or corporate business.
However, we decline to determine whether KRS 171.640 required ORI to create publicly accessible records of its meetings with Duke Energy.
Either party aggrieved by this decision may appeal 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 The Office of Rate Intervention serves as a watchdog for consumers in matters relating to health insurance, natural gas, water, sewer, electric and landline telephone rates. Under Kentucky law, the office is responsible for representing the interests of Kentucky consumers before governmental rate making agencies, focusing on utility cases (electric, water, telecommunications, and natural gas) before the Public Service Commission -- KRS 367.150 (8) -- and health insurance rate cases filed with the Department of Insurance -- KRS 304.17A-095.
2 KRS 61.878(1)(i) creates an exception to the Open Records Act in cases 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[.]"
3 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. 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."
4 40 KAR 1:030 Section 3 states: "Additional Documentation. KRS 61.846(2) and 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."
5 KRS 61.880(1) states in pertinent part: "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."
6 KRS 61.880(2)(a) states: "If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."