Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : Kentucky Public Service Commission ("Commission") violated KRS 61.880(1) by initially failing to assign responsive records to meaningful categories and failing to provide a brief explanation of how KRS 61.878(1)(i) and (j) applied to withheld responsive records. The Commission declined to provide unredacted copies of the responsive records in dispute to Attorney General for in camera review per KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, and therefore failed to satisfy its burden of proof concerning withheld responsive records.
Open Records Decision
The issue presented in this appeal is whether the Kentucky Public Service Commission ("Commission") violated the Open Records Act ("Act") in the disposition of a request for records submitted by Meta Mendel-Reyes, Chairperson for Kentuckians for the Commonwealth ("KFTC"). For the reasons stated below, we find that the Commission violated KRS 61.880(1) by failing to provide a brief explanation of how the exception authorizing withholding records applied to the records withheld. We also find that the Commission failed to satisfy its burden of proof regarding responsive records it withheld, because the agency declined to provide unredacted copies of the disputed responsive records to Attorney General for in camera review, per KRS 61.880(2)(c) and 40 KAR 1:030 Section 3.
On March 1, 2019, KFTC submitted an open records request seeking two groups of communications relating to Kentucky House Bill 227 ("HB 227")1 . The first group of communications were between the Commission and governmental entities, and KFTC described them as: "[a]ny written communications, including email, or records of meetings pertaining to 2018 Kentucky House Bill 227 that have taken place between [the Commission] staff or Commissioners and: staff of the Kentucky Legislative Research Commission; members of the Kentucky General Assembly or their staff; members of the Executive Branch[.]" The second group communications were between the Commission and non-governmental entities, and KFTC described them as: "representatives of electric utility companies, including electric cooperatives; representatives of associations of electric utilities; solar installers or solar industry associations; representatives of the Kentucky Chamber of Commerce; or others registered in Kentucky as legislative lobbyists or executive branch lobbyists."
On March 19, 2019, the Commission denied the requests, stating, "such records are not available to the public." The Commission argued, "[a]ny communications regarding legislation that the Commission or its staff may have had with the Legislative Research Commission, the Kentucky Legislature or members or staff of either group, or the other entities identified in your request fall under [KRS 61.878(1)(i) and (j)]." The Commission did not identify the responsive records being withheld or provide a brief explanation of how the exceptions applied to the records.
On May 17, 2019, KFTC appealed, asking "that the Attorney General review [the Commission's] claim of exemption. ..pursuant to KRS 61.878(1)(i) and (j)." KFTC argued: '[t]he purpose of those exemptions is to protect the integrity of the internal decision-making process of the agency. Once the agency discusses those preliminary matters to an outside third party that is not another agency, it can no longer be said to be engaged in internal decision-making. " However, KFTC also argued, "KFCT's [request] pertained to [HB 227], which was a bill that ultimately did not pass during the 2018 legislative session, one year prior to the submission of the request. Because there had already been a final decision on HB 227 in 2018, [the Commission's] claim of exemption for preliminary drafts, notes, correspondence, recommendations, and memoranda does not stand."
On May 30, 2019, the Commission responded to the appeal and misconstrued KFTC's arguments. The Commission stated, "KFTC further contends that the exemptions no longer apply to any communications that an agency has with an outside third-party that is not a government agency as the agency is no longer engaged in internal-decision making." Based on that misinterpretation, the Commission argued, "KFTC does not challenge the Commission's decision to not disclose any written communications relating to [HB 227] with governmental entities [.]" Regarding communications with non-governmental agencies, the Commission argued, "[a]ny communications that KFCT seeks from the Commission are exempt from public disclosure under KRS 61.878(1)(i) because any such communications would involve writings from private citizens or private organizations and could not involve any advocacy...taken by the Commission, as the Commission is not empowered to enact legislation." Regarding any final action taken on HB 227, the Commission argued, "no final agency action could be said to have taken place with respect to [HB 227] as the Commission is not in control of the legislative process associated with the enactment of a bill and, thus, could take no final action (or choose not to act) in regard to the adoption of [HB 227]."
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, the Attorney General requested the Commission provide this office with unredacted copies of all responsive records for the purpose of in camera review, to substantiate the denials of responsive records pursuant to KRS 61.878(1)(i) and (j). In exercising this authority, we expressly acknowledged "any responsive records you submit for in camera review shall remain confidential and shall not be disclosed to any party to the appeal."2 Further, this office acknowledged that the records "shall be destroy upon rendering of a decision."3
On July 8, 2018, the Commission declined to comply with our request. The Commission stated it "maintains its position regarding the preliminary nature of the requested records," and continued to argue "KFTC's appeal did not challenge the Commission's decision to not disclose any written communications relating to (HB 227) with governmental entities [.]" The Commission disclosed to KFTC and this office approximately 10 communications responsive to KFTC's request for communications with non-governmental entities, but continued to withhold all remaining responsive records. Rather than producing the remaining responsive records, the Commission provided this office and KFTC an Email Log listing 19 email messages by date, party, and title. The Email Log did not include the text of the emails or a summary of their content. On July 10, 2018, the Commission contacted this office by telephone to confirm that it declined to comply with our request for in camera review of records responsive to the request pertaining to governmental entities.
The Commission's Initial Response Violated KRS 61.880(1) . The Commission initially cited KRS 61.878(1)(i) and (j) as the exemptions authorizing withholding records, but failed to explain how the exceptions applied to the records being withheld as required under KRS 61.880(1). The initial response to KFTC's request did not identify which exemption applied to the Commission's communications with either governmental or non-governmental entities, and did not include a brief explanation of how the exception applied to the category of responsive records. As such, the initial response violated the Act.
Pursuant to KRS 61.880(1), a "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 ." (Emphasis added). In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 07-ORD-226; 12-ORD-211. In other words, a public agency must cite the applicable statutory exception, if any, and provide a brief explanation of how that exception applies to the records being withheld, or portions thereof, per KRS 61.880(1), in order to satisfy the burden of justifying its denial. KRS 61.880(2)(c); 04-ORD-106, p. 6; 03-ORD-045.
The Commission's initial response did not explain how KRS 61.878(1)(i) and (j) applied to a particular category of withheld records, and did not offer a categorization of records or explanation until the appeal. A public agency must identify or categorize the records withheld to satisfy KRS 61.880(1). "While 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)[,]...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, 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, 7 (footnote omitted); 04-ORD-106. In
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013), the Kentucky Supreme Court held 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)). Compliance with this requirement under KRS 61.880(1) affords the requester a meaningful opportunity to challenge the withholding of responsive records.
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 82 (Ky. 2013); 18-ORD-231, p. 5-6. Accordingly, the Commission violated KRS 61.880(1).
The Commission Failed to Meet Its Burden of Proof in Withholding Responsive Records . In declining to provide unredacted copies of the responsive records in dispute to Attorney General for in camera review per KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, the Commission failed to satisfy its burden of proof regarding the responsive records it withheld under KRS 61.878(1)(i) and (j). 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. Referring to KRS 61.880(2)(c) and 40 KAR 1:030 § 3, 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.
The Commission claimed its communications with non-governmental entities were exempt as "correspondence with private individuals" under KRS 61.878(1)(i), but it withheld the records from our in camera review. We have found that "analysis of the propriety of a public agency's reliance on KRS 61.878(1)(i) is largely fact specific." 18-ORD-117, p. 3. Therefore, this office cannot uphold the agency's reliance on the exemption without reviewing the content of the responsive records. As such, the Commission did not meet its burden of proof regarding its claim that communications with non-governmental entities are exempt under KRS 61.878(1)(i).
The Email Log was not sufficient to meet the Commission's burden of proof. The Act requires a public agency to produce nonexempt records in response to an open records request, and summaries of information contained in the responsive records are not an adequate substitute. 18-ORD-113. "The Attorney General has long recognized that 'the purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law.'" 99-ORD-121 ( quoting OAG 79-547). "Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying." Id. , pp. 13-14. "It is not adequate for [a public agency] to summarize or paraphrase 'information' appearing in public records as a purported substitute for providing access to the documents." 09-ORD-107. As such, a log or summary of records does not substantiate the withholding of responsive records or meet a public agency's burden of proof under KRS 61.880(2)(c), or for purposes of our in camera review.4
The Commission argued that KFTC did not challenge its decision to withhold responsive records relating to communications with governmental entities, but that mischaracterizes the appeal. Appellant's first argument addressed non-governmental entities, stating, "many of records KFTC requests are of communications between PSC and outside entities [.]" However, KFTC's second argument was addressed at governmental entities, stating, "[b]ecause there already had been a final decision on HB 227 in 2018, [the Commission's] claim of exemption for preliminary drafts, notes, correspondence, recommendations, and memoranda does not stand." As such, KFTC argued that the preliminary status of the responsive communications with governmental entities under KRS 61.878(1)(i) and (j) was forfeited upon the final decision on HB 227.
KFTC's argument is only partially accurate, because the public agency must also adopt the preliminary record as part of the final agency action. 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). In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exempt status after a final agency action:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
Although KFTC misinterpreted the decisions relating to KRS 61.878(1)(i) and (j), it sufficiently argued that the exceptions did not apply to the responsive communications with governmental entities. Therefore, the burden shifted to the Commission under KRS 61.880(2)(c) to prove that the claimed exceptions applied. The Commission declined to disclose any communications with governmental entities for our in camera review, therefore it failed to meet 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 House Bill 227 (R.S. 2018), an act relating to net metering, was initially written to amend KRS 278.465 to redefine "net metering." The bill also amended KRS 278.466 to set the rate of compensation for eligible customer-generated electricity flowing to a retail supplier to be equal to the most recent Commission approved rate for retail suppliers. The bill would have permitted retail suppliers to purchase such electricity on an as-available basis. The General Assembly did not pass the bill in 2018.
2 KRS 61.880(2)(c) states, in relevant part: "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."
3 40 KAR 1:030 Section 3 states, in relevant part: "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."
4 Even assuming that a public agency can provide an index of records for purposes of in camera review, the Commission's Email Log was insufficient. In City of Ft. Thomas , the Court suggested that a public agency may submit, "an outline, catalogue, or index of responsive records and an affidavit by a qualified person describing the contents of the withheld records and explaining why they were withheld." 406 S.W.3d at 849 (emphasis added). The Court found that the index must provide, "sufficient information about the nature of the withheld record (or the categories of withheld records)" and relationship to the exemption claimed, "to permit the requester to dispute the claim and the court to assess it." Id. at 852. However, the Email Log failed to provide an affidavit from a qualified person, and also failed to provide information establishing a relationship between the record and a claimed exemption. Accordingly, the Email Log failed to meet the standards stated in City of Ft. Thomas .