Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : Garrard County Search and Rescue Team ("GCSR") and its executive committee members are a "Public Agency," pursuant to KRS 61.870(1)(f) and (i), and therefore subject to the requirements of the Open Records Act. GCSR, by failing to provide the requested records for in camera review, failed to meet its burden of proof that requested records are exempt pursuant to KRS 61.878(1)(a), and KRS 61.878(1)(i) and (j). Accordingly, GCSR violated the Act when it denied a request for copies of public records.
Open Records Decision
The issues presented in this appeal are whether the Garrard County Search and Rescue Team and its executive committee member Steven Goddard ("GCSR") violated the Open Records Act ("Act") in its disposition of an open records request submitted by Timothy Scott ("Appellant"). We find that GCSR is a "public agency" pursuant to KRS 61.870(1)(f) and (i), and therefore subject to the requirements of the Act. By failing to provide the requested records for in camera review, GCSR failed to meet its burden of proof that the requested records are exempt pursuant to KRS 61.878(1)(a) and KRS 61.878(1)(i) and (j). As such, GCSR violated the Act when it denied Appellant's request.
On April 29, 2019, Appellant submitted an open records request to GCSR executive committee member Steve Goddard seeking, "emails, texts and or written correspondence from Mr. Wendell Hatfield...to you during the time period of January 1, 2019 to your time of resignation as President of [GCSR], March 6, 2019." On May 1, 2019, GCSR denied the request, stating, "[CGSR] did not receive any funding in dollars from a government agency during the time that it was attempting to organize and provide service to the Citizens of Garrard County as no funds were used." GCSR also denied the request under KRS 61.878(1)(a) because the messages were delivered from Mr. Hatfield's private phone and address, and under KRS 61.878(1)(i) and (j) describing the records as, "preliminary documents."
On May 7, 2019, Appellant appealed the disposition of his request arguing that GCSR is a public agency under KRS 61.870(1)(h) because "50% of their funding was from the Garrard County Fiscal Court, and all agency funds were maintained by the [fiscal court]." Appellant attached copies of several GCSR executive committee meeting minutes to support his argument, but the minutes show that the GCSR maintained an account balance of "county donated $ 1,000.00" but did not spend the balance. However, Appellant also argued GCSR is a public agency because it was created by a July 19, 2018 Garrard County Fiscal Court Executive Order ("Executive Order") signed by the Garrard County Judge/Executive ("Judge/Executive"). Appellant also argued that GCSR is a public agency because the Judge/Executive appointed Mr. Goddard and the other executive committee members.
On May 11, 2019, Mr. Goddard responded to the appeal on behalf of GCSR, arguing that GCSR is not a public agency under KRS 61.870(1)(h) because, "during the time it was attempting to organize...no funds were used." Mr. Goddard also argued that GCSR was not a public agency because it had not fully executed an affiliation agreement with Garrard County and "[a] number of requirements per KSR 39F [sic] were still being developed[.]" Regarding the requested records, GCSR argued the text and email messages were exempt under KRS 61.878(1)(a) and KRS 61.878(1)(i) and (j).
On May 22, 2019, our office asked GCSR to provide copies of the responsive records for purpose of in camera review, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to substantiate the claimed exemptions. We stated that the issue of whether GCSR is a public agency under the Act remains open for review, but the record on appeal did not contain adequate information to determine whether the responsive records were exempt under KRS 61.878(1)(a) and KRS 61.878(1)(i) and (j) and related to GCSR's burden of proof. However, GCSR did not respond to our request.
Insufficient evidence exists in the record to find that GCSR is a public agency, pursuant to KRS 61.870(1)(h). However, sufficient evidence does exist in the record that GCSR is a public agency as defined by KRS 61.870(1)(f) and (i). "Public agency" is broadly defined within KRS 61.870(1) to include, in relevant part:
The record shows that GCSR received funds from the Commonwealth of Kentucky, per Garrard County Fiscal Court. However, the minutes in the record show that GCSR did not expend any of those funds, as required to meet the definition under KRS 61.870(1)(h). Therefore, GCSR is not a "public agency" under that definition.
However, the record shows that the Garrard County Fiscal Court created GCSR by Executive Order, which also acted as an affiliation agreement required under KRS Chapter 39F. This is sufficient for GCSR to be a "public agency" under KRS 61.870(1)(f). Rescue squads must be formally affiliated with local disaster and emergency services organizations through an agreement that meets the requirements of KRS 39F.120(9).
The evidence in the record shows that the Executive Order meets the requirements of KRS 39F.120(9). Specifically, the Executive Order contains the required elements stated in KRS 39F.120(9)(a), including the signatures of the Judge/Executive, the local emergency management director, and the chief rescue officer. GCSR argued that the agreement was not finalized because it had not been adopted by the members of the GCSR executive committee, but KRS 39F.120(9) contains no such requirement. All of the parties necessary to enact an affiliation agreement under KRS 39F.120(9)(a) signed the Executive Order in February 2018. Further, the record shows that GCSR began acting as a rescue squad after the signing of the Executive Order. The May 2018 meeting minutes in the record show that GCSR engaged in joint training with law enforcement agencies, and the June 2018 meeting minutes show that GCSR was actively participating in search and rescue missions. As such, the record contains sufficient evidence that GCSR was a "public agency" under KRS 61.870(1)(f).
In addition, sufficient evidence exists in the record that GCSR meets the definition of a "public agency," per KRS 61.870(1)(i), because the Judge/Executive appointed members to the GCSR executive committee. The Judge/Executive is a "public agency" under KRS 61.870(1), which defines the term to include "[e]very state or local government officer[.]" See KRS 61.870(1)(a). The June 2018 minutes show that the Judge/Executive appointed a replacement member after a resignation, and GCSR stated in its December 2018 meeting minutes that it needed to inform the Judge/Executive of a vacancy so that he could appoint a replacement. Therefore, there is sufficient evidence that GCSR is public agency because it is an "entity where the majority of its governing body is appointed by a public agency[,]" per KRS 61.870(1)(i). Accordingly, the requirements of the Act apply to GCSR records.
GCSR did not meet its burden of proving that the responsive records are exempt, because it did not provide the records for our in camera review. Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, the Attorney General asked GCSR to provide the records to substantiate the denials based on KRS 61.878(1)(a) 1and KRS 61.878(1)(i) and (j). 2However, GCSR did not respond to our letter and did not provide copies of the disputed records. Pursuant to KRS 61.880(2)(c), "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." (Emphasis added.) Similarly, 40 KAR 1:030(3) provides, "KRS 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." This office has consistently recognized that "the General Assembly has twice vested the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review[.]" 10-ORD-079, p. 5; 17-ORD-221.
In sum, the Attorney General is vested with discretion as to whether a request for in camera review of the records in dispute is necessary to determine whether a public agency has properly invoked a statutory exception. A public agency, on the other hand, has the statutory burden of justifying its denial and therefore has no such discretion. Having found that GCSR is a public agency, it "bears the burden to rebut the strong presumption in favor of disclosure."
Com. v. Chestnut , 250 S.W.3d 655, 660 (Ky. 2008). In light of KRS 61.871, declaring 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," and KRS 61.880(2)(c), the Attorney General is "not prepared to accept, without independent confirmation, that all of the responsive documents are shielded from public inspection by KRS [61.878(1)(a), KRS 61.878(1)(i) and (j)] or any other exception." 10-ORD-079, p. 6 (citation omitted). Therefore, GCSR "cannot benefit from intentionally frustrating the Attorney General's review of an open records request; such result would subvert the General Assembly's intent behind providing review by the Attorney General under KRS 61.880(5)." See
Cabinet for Health and Family Serv. v. Todd Cty. Std., Inc. , 488 S.W.3d 1, 8 (Ky. App. 2016). Consistent with KRS 61.880(2)(c), 40 KAR 1:030 Section 3, Todd Cty. Std., Inc. , and prior decisions of the Attorney General, we conclude that GCSR failed to satisfy its burden of proof.
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 KRS 61.878(1)(a) excludes: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
2 KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in cases of, respectively: "(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[.]"