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 Kentucky State Board of Elections ("SBE") violated the Open Records Act ("Act") in the disposition of a request for records submitted by Jessica Huseman ("Appellant"), a reporter for ProPublica. For the reasons stated below, we find that SBE violated procedural requirements of the Act but properly withheld responsive records as preliminary, pursuant to KRS 61.878(1)(i) and (j), and as confidential attorney-client communications, pursuant to KRE 503, incorporated into the Act by operation of KRS 61.878(1)(l). We also find that the Attorney General has no authority to impose monetary penalties in an open records appeal, pursuant to KRS 61.882(5).
On February 19, 2019, Appellant submitted an open records request to SBE seeking, "all emailed and written communication between [SBE Custodian of Records Sandy Milburn] and any member of the secretary of state's staff from 1/1/2019 to present." On February 28, 2019, Appellant submitted a second request seeking, "all communication between [Sandy Milburn], [SBE General Counsel] Jennifer Scutchfield, [SBE Employee] Jared Dearing and any employee of the secretary of state's office related to my records requests dated 2/8/2019[.]" Appellant stated that the requests were for electronic copies and she provided an email address for delivery. Appellant appealed the disposition of the two requests to our office on March 20, 2019. We consolidated the two appeals under log number 201900162, because they involve the same parties and issues.
On March 15, 2019, SBE responded to Appellant's requests disclosing 83 pages of records responsive to the February 19 request, and three pages of records responsive to the February 28 request. SBE disclosed the responsive records in hard copy format and charged Appellant a copy fee of ten cents ($ 0.10) per page. However, SBE withheld an unidentified number of records responsive to the two requests and provided the following identical response to both requests:
The records that are responsive to your request and that are within the care, custody and control of this agency are included herein. To the extent the records you requested constituted preliminary drafts, notes, correspondence with private individuals, preliminary recommendations, privileged communications, or any other exception provided for in KRS 61.870 to 61.884, they have been excluded from your application.
Appellant raised five issues for appeal. Appellant argued that SBE's responses violated KRS 61.880(1). 1 Appellant also argued, "the pages have been unnecessarily and inexplicably watermarked[.]" She attached copies of the responsive records to the appeal, showing that each page was stamped "PROPUBLICA" and with a corresponding page number and number of pages. Appellant argued that SBE inappropriately withheld responsive records and assessed costs for hard copies. Finally, Appellant asked that, "[i]f the Attorney General's office finds that any of the records were inappropriately withheld, I request that the Attorney General's office consider an appropriate fine."
On April 22, 2019, SBE responded to the consolidated appeal. SBE stated that its initial responses complied with KRS 61.880 because they, "did identify the exemptions applicable to the records withheld and/or redacted as required[.]" SBE argued that, "KRS 61.878(1)(i) and (j), and the attorney client privilege" are the specific exemptions that authorized withholding responsive records, and they were included within the listed exemptions. SBE argued that the Act does not require, "particularized statements about each record, essentially requiring SBE to create. . .a privilege log for each record." SBE also argued that it assessed a reasonable fee for the producing the hard copies and, "it is unclear what relief [Appellant] seeks[.]" Regarding Appellant's request for a monetary penalty, SBE argued that KRS 61.882(5) allows only a reviewing court to impose such a penalty.
On April 25, 2019, our office requested copies of the withheld responsive records for purpose of in camera review. The request was made pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and the burden of proof imposed upon the public agency therein. On May 17, 2019, SBE provided copies of the withheld responsive records with a letter that categorized the responsive records. Regarding Appellant's February 19 request, SBE disclosed 272 pages of responsive records. SBE argued that pages 1 to 114 were "preliminary drafts, notes or correspondences with private individuals" exempt under KRS 61.878(1)(i). SBE argued that pages 115 to 272 were "preliminary," but also attorney-client privileged communications exempt pursuant to KRS 61.878(1)(l). As to Appellant's February 28 request, SBE disclosed three pages of responsive emails, which it argued are preliminary under KRS 61.878(1)(i).
SBE's Initial Responses Violated KRS 61.880(1) . SBE violated KRS 61.880(1) by failing to include a statement of the specific exception authorizing the withholding of records and a brief explanation of how the exception applied to the records withheld. SBE's initial response did not identify the responsive records or assign the records to meaningful categories. SBE also repeated a non-specific boilerplate paragraph that failed to identify a specific exception or explain how that exception applied to a particular record or category of records. Therefore, SBE failed to meet the procedural requirements of KRS 61.880(1).
A public agency must first identify or category the records withheld to meet the KRS 61.880(1) requirement of explaining how an asserted exception applies. 18-ORD-231; 05-ORD-248. In addition, SBE's boilerplate responses were too nonspecific to meet the requirements of KRS 61.880(1). In Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996), the Court of Appeals found that KRS 61.880(1) requires the agency "to provide particular and detailed information in response to a request for documents," admonishing the public agency for its "limited and perfunctory response." In 2013, the Supreme Court declared that an agency's denial must be "detailed enough to permit [the reviewer] to access its claim and the opposing party to challenge it." Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 82 (Ky. 2013). SBE's boilerplate initial responses failed to meet these minimum standards.
SBE argues that neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974). However, "we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable." 97-ORD-41, p. 6; 04-ORD-106. In City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013), the Kentucky Supreme Court required that an agency "must identify and review its responsive records, release any that are not exempt, and assign the remainder to meaningful categories ." (Emphasis added). The Court found that a category is meaningful if it "allows the court to trace a rational link between the nature of the document and the alleged likely [harm to the agency]." Id. (quoting Bevis v. Dep't of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)).
SBE provided meaningful categorizations of the withheld records and identified the specific applicable exceptions on appeal. However, KRS 61.880(1) requires that information in the initial response so that the requester has a meaningful opportunity to challenge the withholding of responsive records. See Kentucky New Era, Inc., 415 S.W.3d at 82; 18-ORD-231, p. 5-6. Accordingly, we find that SBE violated KRS 61.880(1).
SBE's Page Numbering and "Watermarks" on Responsive Records Violated the Act . We find that SBE violated the Act when it provided Appellant copies of responsive records marked or altered with page numbering stamps and "watermarks. " The Act creates a public right to inspect public records, at KRS 61.872(2). However, the Act also gives the public the right to receive copies of public records. KRS 61.874(1) states, "the custodian of the records shall duplicate the records or permit the applicant to duplicate the records[.]" See also KRS 61.872(3)(b).
The only exception to the right to receive duplicate copies under KRS 61.874(1) is a public agency's duty to redact excepted material or information. In KRS 61.871, the General Assembly declared that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed[.]" Regarding those exceptions, KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." In discharging this duty to redact, our office has observed that public agencies often create a duplicate of the original record, make appropriate redactions, and disclose the redacted record. 14-ORD-229, p. 4. The agency satisfies its duty under KRS 61.872(2), and KRS 61.872(3)(b), as well as KRS 61.878(4), by affording the requester access to the redacted copy of the original record. Id. The Act does not permit redaction, alteration, or marking of copies of responsive public records in any other way.
SBE argues that it did not violate the Act because the copies it provided to Appellant were legible. However, we have stated that, "what the public gets is what [the agency has] and in the format in which [the agency] has it." OAG 91-12, p. 5; see 13-ORD-023; also see 08-ORD-090. KRS 61.874(1) imposes a duty on the custodian of records to duplicate records or permit the applicant to create a duplicate of the requested record. The plain meaning of statutory language is presumed to be what the legislature intended; if the meaning is plain, then one cannot base its interpretation on any other method or source. Revenue Cabinet v. O'Daniel, 153 S.W. 3d. 815, 819 (Ky. 2005). Only when it would produce an injustice or absurd result should the plain meaning be ignored. See Johnson v. Frankfort & Cincinnati R.R., 197 S.W.2d 432, 434 (1946). The responsive records SBE disclosed did not require redactions, subject to KRS 61.878(4). The Act did not permit any other markings of the responsive records. Accordingly, SBE violated KRS 61.874(1) by failing to provide Appellant duplicate copies of the responsive records.
SBE Violated KRS 61.874(2)(a) . SBE violated KRS 61.874(2)(a) by failing to adhere to Appellant's request for electronic copies of responsive records. SBE further violated the Act by requiring Appellant to pay costs in advance of receiving hard copies of responsive records when those records were available in electronic format. KRS 61.874(2)(a) provides:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
(Emphasis added.) The Attorney General has repeatedly determined that "if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6. Unless the requested records exist only in hard copy format, discretion rests with the requester, and not the agency, to determine whether copies are to be provided in electronic or hard copy format.
Appellant specifically requested copies in electronic format, and SBE presents no evidence that it was unable to honor the request. Further, emails responsive to Appellant's February 28 request show that SBE is capable of producing records in electronic format. As such, the Act allowed Appellant to require SBE to provide copies in electronic format. SBE violated the Act by failing to adhere to the request. SBE further violated the Act when it required Appellant to pay a copying fee for the hard copies she had requested in electronic format. See 14-ORD-148 (agency "cannot impose a ten cents per page copying fee for paper copies of electronic records requested in electronic format. ")
SBE Properly Withheld Records Responsive to the February 19 Request . SBE properly relied on KRS 61.878(1)(i) and (j) and the attorney-client privilege in withholding emails responsive to the request for, "all emailed and written communication between [Custodian of Records Sandy Milburn] and any member of the secretary of state's staff from 1/1/2019 to present." Our in camera review shows that SBE withheld 272 pages containing approximately 390 emails. SBE properly characterized the emails as preliminary drafts, pursuant to KRS 61.878(1)(i) and (j), 2 or as privileged attorney-client communications. SBE met its burden of proof and justified withholding these responsive records.
This office is precluded from disclosing the contents of the records provided for in camera review. However, we can describe the emails as exchanges between subordinate staff and superiors, consisting of drafts of meeting agendas and documents submitted for review and comment. The emails also contain questions and comments between staff to supervisors, in which opinions and recommendations are expressed. The rationale underlying KRS 61.878(1)(i) and (j) is to facilitate frankness and candor in internal communications exchanged by staff and subordinates. See 93-ORD-125, p. 4. Therefore, 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; 15-ORD-202; 18-ORD-216. Deciding otherwise would cast a chilling effect upon the ability of the government to function as a system. See 05-ORD-027 (upholding the denial of non-final internal agency memorandum from subordinate to superior regarding fleet services); 18-ORD-196 (upholding denial of emails containing exchanges of recommendations and opinions on future policies).
Although SBE properly characterized the responsive emails as preliminary, KRS 61.878(1)(i) and (j) require an additional determination of whether the records were ultimately adopted as the basis or part of the agency's final action. 19-ORD-063 (quoting 16-ORD-106); 11-ORD-052, p. 3. We recognize that public records which are of a preliminary nature forfeit their exempt status upon being adopted by the public agency as a basis for its final action. See OAG 83-405 and OAG 89-69; 12-ORD-055; 15-ORD-189. However, no evidence exists that SBE incorporated any of the email messages into a final action. As such, SBE properly relied on KRS 61.878(1)(i) and (j) to withhold emails responsive to the February 19 request.
We also find that SBE properly withheld emails between Assistant Secretary of State Erica N. Gaylon and Ms. Milburn pursuant to the attorney-client privilege under KRE 503, operating in tandem with KRS 61.878(1)(l). 3 The emails contain questions and advice, "for the purpose of facilitating the process of rendering professional legal services to a client[.]" See KRE 503(a)(2). The attorney-client privilege attaches to confidential communications "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)). Ms. Gaylon and Ms. Milburn are the only parties to the emails. As such, SBE properly characterized them as attorney-client privileged communications.
SBE Properly Withheld Records in Response to the February 28 Request . SBE properly relied on KRS 61.878(1)(i) and (j) in denying the request for "all communication between [Sandy Milburn], Jennifer Scutchfield, Jared Dearing and any employee of the secretary of state's office related to my records requests dated 2/8/2019[.]" Our in camera review revealed that SBE properly characterized the emails as preliminary, because the exchanges are between subordinate staff and superiors regarding responses to open records requests. One responsive email chain consists of directions to the staff on compiling responsive records for internal review. The other email messages are staff summaries of responsive records, with opinions and recommendations. These communications are the sort of exchanges that are excluded by KRS 61.878(1)(i) and (j) exclude. In addition, no evidence exists in the record that any of these email messages were incorporated into a final agency action. As such, SBE properly relied on KRS 61.878(1)(i) and (j) to withhold the three pages of responsive emails.
The Attorney General has no Authority to Impose Monetary Penalties in an Open Records Appeal . We decline Appellant's request that we consider penalties. This office has long recognized that it has no authority to impose monetary penalties for violation of the Act. See, e.g. , OAG 79-380; OAG 80-367; OAG 81-264; 93-ORD-135; 95-ORD-88; 98-ORD-21; 99-ORD-121; 08-ORD-041. The relevant provision of the Act, KRS 61.882(5), thus provides:
Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney's fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($ 25) for each day that he was denied the right to inspect or copy said public record. Attorney's fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation.
(Emphasis added.) In construing this provision, this office has observed:
The language of [KRS 61.882(5)] is abundantly clear. Only the courts may impose penalties for denial of inspection of public records. [Citations omitted.] For this reason, the Attorney General's Office has consistently refrain[ed] from opining on whether records were willfully withheld pursuant to KRS 61.882(5).
99-ORD-121, p. 18 (citing OAG 90-58, p. 6).
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.
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