Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Government ("LMG") violated the Open Records Act in the disposition of Daniel Borsch's February 7, 2019, request (sent via e-mail after 5:00 p.m.) for "All emails and written correspondence" from January 1, 2010, through February 7, 2019, between the following parties: John Hollenbach; Hollenbach; Hollenbach-Oakley; John Gant; Todd Jackson; Ken Jackson; MS Bardstown Road LLC; Rebecca Fleischaker; Mary Ellen Wiederwohl; Mayor Greg Fischer; Ellen Hesen; Louisville Sterling, LLC; 1300 Bardstown Road; 1306 Bardstown Road; and/or the selling and/or developing of 1300 and 1306 Bardstown Road, including all inquiries into purchasing the property from any prospective purchaser. Based upon the following, this office partially affirms the agency's ultimate disposition of Mr. Borsch's request, but finds that LMG violated the Act in withholding certain e-mail correspondence between it and certain individuals regarding a specific project, as those records are not properly characterized as correspondence with private individuals to which KRS 61.878(1)(i) applies; disclosure is not contingent on final action.
By e-mail dated February 22, 2019, 10 working days later, Open Records Specialist Stephonn Bunton responded on behalf of LMG. Insofar as the request was duplicative of Mr. Borsch's prior requests, identified as # 8902 and # 8480, he referred Mr. Borsch to responses that LMG provided to said requests for all existing responsive documents in the possession of the agency. 1 LMG also provided certain documents responsive to his request that were not previously implicated or provided. 2 However, LMG withheld certain e-mails pursuant to KRS 61.878(1)(i) and (j), "as they consisted of preliminary comments and preliminary recommendations, as well as correspondence with private individuals," none which provided notice of any final action by the agency. Citing
Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995), Mr. Bunton further indicated that LMG withheld other e-mails because "they relate to scheduling" and thus are exempt per KRS 61.878(1)(i) and (j). This appeal followed.
Mr. Borsch alleged on appeal that additional responsive documents exist and challenged the propriety of the agency's reliance on the cited exceptions. 3 In responding to his appeal on behalf of LMG, Assistant Jefferson County Attorney Annale R. Taylor reiterated the agency's initial response identifying the general nature of the categories of records withheld, stating that each of the withheld categories pertain to "preliminary discussions of the sale and/or the development of 1300 and 1306 Bardstown Road." She further explained that some withheld records "are internal communications providing feedback on the draft versions of the agreements Mr. Borsch sought. The withheld records also include discussion of possible development scenarios of the subject property and feedback regarding those scenarios. " In addition, she reiterated that LMG properly withheld e-mails relating to a public official's schedule as preliminary under
Courier-Journal v. Jones, supra. With regard to Mr. Borsch's claim that additional nonexempt responsive documents exist in the possession of LMG, she noted that LMG has conducted "multiple searches using the exact search parameters provided by Mr. Borsch and has provided him with all non-exempt responsive records." With no factual evidence from which the existence of additional records can be presumed, or legal authority mandating their creation, there is no basis upon which to find that LMG violated the Act in this regard.
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 certain records exist. 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"); 07-ORD-188; 12-ORD-087; 15-ORD-164. 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 these circumstances, 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.
Moreover, 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; 14-ORD-204; 17-ORD-276. As in this case, when a public agency denies that additional responsive documents exist, and the record on appeal contains no contrary evidence, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"). Further, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3; 18-ORD-207. The record is devoid of any evidence to refute the agency's position that no additional responsive documents exist, beyond those it belatedly disclosed upon receipt of this appeal, 4 notwithstanding any discrepancies Mr. Borsch perceives between the records provided and those he believes may or should exist. See 18-ORD-207. Accordingly, the question becomes whether LMG violated the Act in withholding certain records per KRS 61.878(1)(i) and (j).
Among those records excluded from disclosure, in the absence of a court order authorizing inspection, are those identified at KRS 61.878(1)(i) and (j). 5
Beckham v. Board of Educ. of Jefferson Cty., 873 S.W.2d 575, 577-578 (Ky. 1994);
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j) in a variety of contexts, but little has changed regarding the relevant analysis. See
City of Louisville v. Courier-Journal and Louisville Times Co. 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983)(recognizing that "documents defined in subsections [(i)] and [(j)] which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records . . ." but unless those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded");
Univ. of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001);
Univ. of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013); 99-ORD-220; 11-ORD-052; 15-ORD-189; 16-ORD-167. "Final agency action" is understood as "when the ultimate issue to be decided [is] resolved."
Univ. of Louisville v. Sharp, 416 S.W.3d at 315; OAG 91-21 (Letter of Intent is not final agency action, because the "incentive package" is subject to negotiation and change until such time as final agreement is reached among the parties); 05-ORD-048; 12-ORD-217; 15-ORD-087; 16-ORD-231.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034, p. 11 (quoting City of Louisville, 637 S.W.2d at 660). "It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action. 16-ORD-256, p. 4. "In our view, the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83, p. 14 (citing City of Louisville, supra). LMG seemingly "'fails to recognize that our analysis does not end with a determination that documents are preliminary in character, but instead also requires a determination of whether such documents, or portions thereof, were ultimately adopted as the basis or a part of the agency's final action. '" 15-ORD-067, p. 3 (citing 11-ORD-052). Conversely, Mr. Borsch's position fails to recognize that documents retain their preliminary character unless and until adopted as the basis or a part of a final action by the agency. Id.
Notwithstanding the additional information that LMG provided on appeal regarding the categories of records withheld, in order to fully discharge our duty per KRS 61.880(2), this office asked Ms. Taylor to provide us with a hard copy of those records for in camera review pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3. She promptly complied. 6 Our in camera review of the records withheld under KRS 61.878(1)(i) and (j) as relating to scheduling matters of a public officia1(s), marked as Exhibit A, confirmed that all of the subject e-mails did, in fact, pertain to scheduling matters of a public officia1(s). In
Courier-Journal v. Jones, supra, the court held then Governor Brereton Jones' appointment schedule was "nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness; and all of which should be free from media interference." Id. at 10. See 08-ORD-217; 16-ORD-039. Similarly, in OAG 78-626, this office held that a mayor's appointment calendar was properly withheld under authority of what is now codified as KRS 61.878(1)(i), and in OAG 84-342, this office found that a public official's calendar, and that of his secretary, were protected from disclosure under KRS 61.878(1)(a), (i), (j), and OAG 78-626. Following these authorities, in 05-ORD-018 the Attorney General did not find any "meaningful distinction between a calendar, [] a schedule,[] and an itinerary,[] all of which are "used interchangeably throughout Jones and other supporting authorities." Id. at pp. 5-6 (footnotes omitted); 05-ORD-144 (noting that "some of these emails relate to travel logistics, and expenses associated therewith, and do not implicate the deliberative process which the court sought to protect in Jones" ); 16-ORD-151. Of particular significance, in 08-ORD-217, following Jones , this office further determined that "preliminary records [i.e., e-mails] that form the basis of those documents can be withheld. " 08-ORD-217, p. 9; 16-ORD-039. See 16-ORD-151. 7 In accordance with
Courier-Journal v. Jones, supra, and the foregoing line of decisions by this office, the Attorney General affirms LMG's withholding of the records marked as Exhibit A.
LMG generally described Exhibit B as records "withheld as preliminary as they relate to the development of the subject properties." This office first notes that certain e-mails included as part of Exhibit B qualify for exclusion pursuant to KRS 61.878(1)(i) and (j) for the same reasons already set forth in relation to Exhibit A. "[C]ommunications aimed at setting up a meeting are generally recognized as preliminary unless they have been adopted as the basis of final agency action. See generally City of Louisville v. Courier-Journal & Louisville Times Co . [at 658]." 16-ORD-151, p. 4; Sharp, 416 S.W.3d at 315. Likewise, insofar as the subject e-mails contain recommendations and opinions, feedback, etc., that LMG did not rely upon or adopt, in whole or in part, as the basis for any final action, i.e., lease, purchase agreement, press release, etc., LMG was entitled to redact such information per KRS 61.878(1)(j) and 61.878(4). Any recommendations and opinions that LMG did adopt, whether expressly or not, forfeited their preliminary character and must be disclosed. See 15-ORD-189. Any e-mails that were generated after LMG had taken final action, whether that was issuing the final press release or executing the lease agreement or purchase agreement, do not fall within the parameters of KRS 61.878(1)(i) and (j) as those records cannot properly be characterized as "preliminary." See 18-ORD-198 (undisputed facts established that both of the records in dispute were created after the final adjudication of the subject investigation, meaning the records were "post-decisional" and subject to disclosure) ; 94-ORD-108.
With regard to e-mails between the LMG Department of Economic Development (primarily its Deputy Director and Senior Policy Advisor) and Mr. Hollenbach/Hollenbach-Oakley, or the Project Engineer, etc., which comprise the majority of Exhibit B, this kind of correspondence is not generally exempt from disclosure under KRS 61.878(1)(i); nor are communications of this nature between LMG and Mr. Sleadd (or any representative of the current ownership group, etc.). In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to private individuals," is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." Id. , p. 2. This exception does not apply to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6; 04-ORD-125. Rather, "[w]ritings 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." OAG 90-142, p. 6.
For example, this office has recognized that a public agency's correspondence with a private contractor relating to administration of its public contract falls beyond the scope of "correspondence with private individuals." 00-ORD-98 (affirming OAG 90-7). Likewise, this exception does not apply if the correspondence was intended to petition or advocate for a particular action by a public agency on a specific matter in which it has authority to make a decision. 18-ORD-134, p. 3. "It is equally inappropriate to apply the exception to communications between a state agency and a regulated entity in the scope and course of the agency's regulatory duties." Id . See 99-ORD-220 (applications for licenses to conduct business); 01-ORD-86 (applications for purchase of conservation easements); 17-ORD-156 (requests to LMG for mayoral proclamations to be made). This line of reasoning is controlling as to all of the communications between representatives of LMG and the named individuals regarding the purchase, development, lease, etc. of the subject properties.
If a record cannot be properly characterized as correspondence with a private individual, "the question of whether final action has been taken by the agency becomes irrelevant." 99-ORD-220, p. 7; 05-ORD-179 ("The end result sought by the applicant in submitting these materials, whether the result is accomplished or stalled, is approval by Metro Planning and the agencies it serves of the requested zoning change or receipt of conditional use permit."); 07-ORD-181; 12-ORD-134; 13-ORD-051. Simply put, "we do not reach the second part of the KRS 61.878(1)(i) analysis, requiring final action of a public agency, if [, as in this case,] the first part of the analysis, requiring that the disputed record consist of correspondence, is not met." Id. 18-ORD-182 (e-mails were "communications by a public agency with outside individuals concerning a matter over which the agency had authority to act[, and therefore] did not constitute 'preliminary recommendations' or 'preliminary memoranda' within the meaning of the statute"). Compare 12-ORD-213. LMG violated the Act in withholding the subject e-mails (Exhibit B) in their entirety on the basis of KRS 61.878(1)(i).
In dissecting KRS 61.878(1)(i), this office has noted that a "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002).<<1> 97-ORD-183, p. 4; 18-ORD-131. A "note," on the other hand, is defined as a "brief record, esp. one written down to aid the memory." Id. at 951; 97-ORD-183, p. 4. In the alternative, a "note" is "created as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting." Id. (citations omitted). LMG is entitled to withhold any proposal or plan, etc. that can be properly characterized as a "draft," except insofar as LMG ultimately adopted the draft in the final action of the agency. However, no credible argument can be made that a photograph, a blank Overlay District Permit, a copy of Historic Preservation Guidelines, or a copy of information regarding the Kentucky Historic Preservation Tax Credit, Tourism Development Loan Program, etc., derived from the website of LMG or a different public agency, is a "draft" or "note" according to the "common and approved uses" of those terms (KRS 446.080(4)). 8 Likewise, a photograph, etc., is clearly not "correspondence with private individuals." KRS 61.878(1)(j) is equally inapplicable given that a photograph or the other types of records described, cannot be properly characterized as "recommendations" or "memoranda." Accordingly, "disclosure [of the record(s) in dispute] is not contingent upon the occurrence of final agency action. " 99-ORD-220; 06-ORD-135.
With regard to Exhibit C, LMG determined upon receipt of Mr. Borsch's appeal "that some portion of it was not preliminary." Therefore, Ms. Taylor provided a redacted copy to Mr. Borsch on April 1, 2019, with a copy of her supplemental response. She provided this office with a complete version for in camera review per KRS 61.880(2)(c) and 40 KAR 1:030 Section 3. LMG did not specify which exception it relied upon to justify withholding two (a third was blank except for a signature block) of the eight responsive pages, nor was it readily apparent from our in camera review. KRS 61.880(2)(c) and 40 KAR 1:030 Section 3 preclude this office from revealing the contents of the material that was redacted from the subject e-mail thread. However, based upon the foregoing analysis of KRS 61.878(1)(i) and (j), and in the absence of sufficient information to determine whether that material forfeited its preliminary character, even assuming it qualified for protection, this office must conclude that LMG failed to satisfy its burden of justifying the redaction of this material per KRS 61.880(1) and (2)(c).
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 proceeding.
Footnotes
Footnotes
1 On June 20, 2018, Mr. Borsch asked for all communications from December 31, 1969 to June 20, 2018, between all but two of the parties named above concerning the sale or development of the aforementioned properties and the "contracts between Louisville Metro, or a controlled entity" and the named individuals. By e-mail dated June 25, 2018, Mr. Bunton implicitly relied upon KRS 61.872(5) in stating the records were not available "because the request requires a computer search and will require legal review. Records will be available on or before close of business July 9, 2018." This office reminds LMG that merely having the need to identify and review documents alone does not constitute a sufficiently 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.
However, on August 7, 2018, Mr. Borsch notified LMG that he still had not received all of the documents previously requested, specifically, a copy of the appraisal that was "completed and submitted to the city on behalf of the purchasers of the property" and the "addendums to the purchase agreement with Louisville Sterling. He also questioned the lack of responsive communications between the named individuals and entities. By e-mail dated August 10, 2018, Mr. Bunton first clarified that LMG obtained the appraisal on its own behalf and provided a copy. He next acknowledged that responsive addendums "were inadvertently omitted from the prior response" and provided those via attachment to his e-mail. Mr. Bunton stated that LMG does not have any further documents responsive to his request.
2 It bears confirming that LMG was correct in asserting on appeal that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 05-ORD-198; 13-ORD-055. Unless a requester "can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records," a public agency is not required to satisfy the same request multiple times. 05-ORD-021, p. 8. Insofar as Mr. Borsch changed the parameters of his request by adding two names and changing the relevant period, his request was not identical.
3 He also challenged the failure of LMG "to provide a list of withheld documents." However, no such requirement exists in the Act. Citing City of Ft. Thomas v. Cincinnati-Enquirer, 406 S.W.3d 842, 852 (Ky. 2013), LMG correctly asserted that a public agency is obligated to provide the requester with "sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim[.]"
4 LMG provided certain records it previously withheld, identified as Exhibits D, F, and G, upon receipt of Mr. Borsch's appeal. Therefore, any related issues are moot per 40 KAR 1:030 Section 6.
5 KRS 61.878(1)(i) and (j), respectively, exclude from disclosure:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.