Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : Office of the Governor ("Governor's Office") 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, but partially corrected the error on appeal. The Governor's Office failed to satisfy the burden of justifying the denial of the request per KRS 61.880(2)(c) by declining to provide responsive emails for in camera review.
Open Records Decision
The issue presented in this appeal is whether the Office of the Governor ("Governor's Office") violated the Open Records Act ("Act") in its disposition of an open records request submitted by Kevin Bogardus ("Appellant"), a reporter for E&E News. For the reasons stated below, we find that the Governor's Office 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, but partially corrected the error on appeal. The Governor's Office failed to satisfy its burden of proof under KRS 61.880(2)(c) by refusing to provide copies of responsive emails for in camera review. Consistent with KRS 61.880(2)(c) and
Cabinet for Health and Family Servs. v. Todd Cty. Std., Inc. , 488 S.W.3d, 1 (Ky. App. 2016), this office must conclude that the Governor's Office violated the Act by denying the open records request.
On May 8, 2019, Appellant submitted an open records request to the Governor's Office seeking, "copies of all emails sent to and from the following individuals at the Office of the Kentucky Governor related to former EPA Administrator Scott Pruitt and Pruitt's consulting from July 5, 2018 to the date that this request is processed: Matt Bevin; Jenean Hampton; Blake Brickman; Bryan Sunderland; Steve Pitt." Appellant provided search terms for the request.
On May 10, 2019, the Governor's Office denied the request with a brief statement:
The initial response failed to state the statutory grounds for the attorney-client and work product exceptions, and failed to explain how the three exceptions applied to the withheld responsive records.
On July 17, 2019, Appellant appealed the denial. Appellant argued that the attorney-client and work product exceptions did not apply because "[EPA Administrator Pruitt] was not an employee of the state of Kentucky or an attorney representing [the Governor's Office]. Further...Pruitt is also not a client." Regarding KRS 61.878(1)(i) and (j), Appellant argued that factual information contained within the responsive records was not exempt.
On July 31, 2019, the Governor's Office responded to the appeal stating, "[w]e discovered 15 responsive documents, all of which we withheld because they are exempt under the [Act]." The Governor's Office did not state the specific exception authorizing the withholding of a responsive record or category of records, or explain how the exception applied. Rather, the Governor's Office broadly attributed all three exceptions to each record, stating, "each document is either attorney-client privileged, contains attorney work product, or is preliminary in nature under KRS 61.878(1)(i) and (j)."
The Governor's Office included an Index of Withheld Records ("Index") with the appeal response. The Index identified 14 responsive emails and 1 responsive document by date, author and recipient, subject, and "application exceptions." However, the Index only identified some authors and recipients with vague identifiers, such as "governor's staff," or "multiple members of legal staff across multiple state governments." The Louisiana Attorney General's Office authored seven of the responsive emails, and was a recipient party to one email. However, the Governor's Office did not explain why the attorney-client privilege, work product privilege, or preliminary records exceptions applied to those records. The "application exceptions" category of the Index failed to provide a statement of a specific exception applicable to the responsive records or explain how the exception applied. Rather, the Index applied repetitive non-specific phrases such as "KRS 61.878(1)(l)(attorney-client privilege); KRS 61.878(1)(i) & (j)(preliminary communication)" to each responsive record.
On August 1, 2019, this office requested unredacted copies of the withheld responsive records for purpose of in camera review, 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. In exercising this authority we expressly acknowledged, "[i]f documents thus obtained are copies of documents claimed by the agency to be exempt..., the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered." See 40 KAR 1:030, Section 3.
On August 16, 2019, the Governor's Office declined to produce the responsive records, arguing, "by voluntarily disclosing the documents, the Governor's office would waive its privilege. There is no exception for disclosures made to the Attorney General." The Governor's Office argued that disclosing records for in camera review would forfeit the exceptions and privileges "that give rise to the appeal in the first place." The Governor's Office stated that the attorney-client privilege and work product privilege applied to emails from the Louisiana Attorney General's Office because they are "attorney's representing other states who share a common interest." However, the Governor's Office did not identify a common legal interest for application of the privileges. The Governor's Office did not explain why the preliminary records exceptions would apply to communication shared with the Louisiana Attorney General. The Governor's Office argued that the Index satisfied the agency's burden of proof in this appeal.
The Initial Response Violated KRS 61.880(1) . The initial response issued by the Governor's Office was a limited and perfunctory statement that failed to meet the specificity requirement of KRS 61.880(1). 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." In construing the mandatory language, the Kentucky Court of Appeals held 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[.]"
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996); 07-ORD-226; 12-ORD-211.
The initial response failed to provide a brief explanation of how the attorney-client privilege, work product privilege, and preliminary records exceptions apply to the responsive records, leaving Appellant to speculate on appeal. 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). The Governor's Office broadly asserted the three exceptions without providing the detailed explanations mandated by KRS 61.880(1). That "limited and perfunctory" response did not meet the requirements of KRS 61.880(1). See Edmondson , 926 S.W.2d at 858.
The Governor's Office also violated KRS 61.880(1) by failing to cite the specific statutory basis for the attorney-client and work product exceptions, but corrected the error on appeal. The initial response identified KRS 61.878(1)(i) and (j), 1and attorney-client privilege and work product as the applicable exceptions. However, the Governor's Office failed to reference KRE 503, operating in tandem with KRS 61.878(1)(l), 2which are the specific statutes authorizing the attorney-client and work product exceptions. A public agency must cite the applicable statutory exception, if any, and provide a brief explanation of how that exception applies to the records withheld, to satisfy its burden of justifying its denial. KRS 61.880(2)(c); 04-ORD-106, p. 6; 03-ORD-045. Absent reference to the statutes, laws, and rules of evidence that authorize application of the attorney-client and work product exceptions, the initial denial was procedurally deficient.
On appeal, the Index properly identified the statutory basis for the attorney-client and work product exceptions, correcting that error. However, the Index did not correct the lack of specificity in the initial response. The subject and "application exemptions" categories did not provide 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, per KRS 61.880(1). Rather, the Index used repetitive non-specific phrases that attributed all of the asserted exceptions to each responsive records or category of records, without providing a particularized explanation of how a specific exception applied. Repetitive non-specific statements do not meet the specificity requirements of KRS 61.880(1). See 19-ORD-118, p. 4; 15-ORD-197 n. 1. Accordingly, the Governor's Office failed to correct the "limited and perfunctory" initial response on appeal.
The Governor's Office Failed to Meet Its Burden of Proof by Declining to Provide Responsive Records for In Camera Review . In declining to provide copies of the responsive records for in camera review, per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, the Governor's Office failed to meet its burden of proof and justify withholding the responsive records. Referring to KRS 61.880(2)(c) and 40 KAR 1:030, Section 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. As such, 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. See
Commonwealth v. Chestnut , 250 S.W.3d 655, 660 (Ky. 2008)(The public agency "bears the burden to rebut the strong presumption in favor of disclosure"). "The General Assembly...conferred upon the [Attorney General] the duty to adjudicate open records disputes and, to do so, gave the AG the ability to substantiate an agency's claims that records are exempt through an in camera review of the records requested."
Kernel Press, Inc. v. Univ. of Kentucky , S.W.3d , 2019 WL 2236421, at *25-26 (May 17, 2019)(unpublished) (holding that the University of Kentucky violated the Act when it refused Attorney General's request for in camera review of records in Title IX investigation file). When a public agency declines to produce records that are purportedly exempt from disclosure for in camera inspection, the Attorney General's Office has repeatedly found that "the agencies whose denials were challenged had not met their burden of proof in sustaining those denials under KRS 61.880(2)(c)." 10-ORD-079. The Kentucky Court of Appeals unequivocally endorsed this approach in
Cabinet for Health and Family Servs. v. Todd Cty. Std., Inc. , 488 S.W.3d 1 (Ky. App. 2016). The Court declared that a public agency "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 under KRS 61.880(5)." Id. at 8 (emphasis added); see also 05-ORD-169 (Attorney General's ability to render a decision is "severely impaired" without exercising his authority under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3).
There is no merit to the Governor's Office's argument that production of the responsive records for in camera review would constitute a waiver of the privileges or exceptions under KRS 61.878(1)(i), (j), and the attorney-client and work product privileges. Analyzing the express grant of authority under KRS 61.880(2)(c), the Franklin Circuit Court noted that "[t]he Attorney General's statutorily defined confidential, in camera review of substantiating documents does not constitute a public disclosure of documents." Kentucky State Univ. v. The Kernel Press, Inc. d/b/a The Kentucky Kernel, et. al. , No. 17-CI-199, p. 9 (Franklin Circuit Court, Division II, October 13, 2017)(copy enclosed).
This office performs a quasi-judicial role in resolving open records disputes. 00-ORD-148, p. 4; 11-ORD-027 n. 3. Open Records Act appeals are an 'adjudicatory process' where an individual who receives an unsatisfactory response to an open records request may appeal to the Attorney General.
Taylor v. Maxson , 483 S.W.3d 852, 857 (Ky. App. 2016). "[T]he Attorney General issues an opinion, which if not appealed to the circuit court, has the 'force and effect of law and shall be enforceable in the Circuit Court...'" Id. , citing KRS 61.880(5)(b). As such, a public agency's production of responsive records for in camera review does not waive any privilege or exception provided under the Act. Accordingly, the Governor's Office failed to meet its burden of proof when it declined to produce responsive records for purpose of in camera review.
There was Insufficient Evidence in the Index to Justify Withholding Responsive Records . The Index is not a sufficient substitute for responsive records, for purposes of in camera review. As such, it did not meet the burden of proof on appeal. 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 purpose of the [Act] is not to provide information but to provide access to public records which are not exempt by law." 99-ORD-121, p. 13, quoting OAG 79-547. "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. Accordingly, 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), for purposes of our in camera review.
Even assuming that a public agency can provide an index in lieu of responsive records for purposes of in camera review, the Index is insufficient because it is unverified. In
City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842 (Ky. 2013), 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." Id. at 849 (emphasis added). Therefore, the public agency must have verify its index with a qualifying certification or affidavit from a person with knowledge of the responsive records. The Governor's Office Index was not verified according to the requirements of City of Ft. Thomas . Accordingly, the Governor's Office failed to meet its burden of proof on appeal.
Insufficient evidence existed in the Index to justify withholding the responsive records pursuant to the attorney-client and work product privileges. The Kentucky General Assembly has recognized and incorporated the privileges into the Act. See
Hahn v. Univ. of Louisville , 80 S.W.3d 771, 774 (Ky. App. 2001); 08-ORD-022; 15-ORD-214. However, the privileges only attach to a confidential communication "made to facilitate the client in his/her legal dilemma and 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)). By identifying some parties only by vague identifiers, such as "governor's staff," or "multiple members of legal staff across multiple state governments," the Index failed to establish that the emails were communications solely between parties listed in KRE 503(b). 3
The Governor's Office argues that the attorney-client and work product privileges apply to emails with the Louisiana Attorney General under the "common interest" application of the privileges. However, the Governor's Office did not identify a common legal interest with the Louisiana Attorney General. The inclusion of a non-client third party also waives the "common interest" privilege. See
Broessel v. Triad Guaranty Ins. Corp. , 238 F.R.D. 215, 219 (W.D. Ky. 2006) (quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine , American Bar Association Section of Litigation at 196 (4th ed. 2001)). As such, the Index failed to establish that the emails were confidential communications made "in a pending action and concerning a matter of common interest therein [.]" See KRE 503(b)(3).
The Index also failed to provide evidence justifying withholding responsive records pursuant to KRS 61.878(1)(i) and (j). The exception codified at KRS 61.878(1)(i) is generally reserved for that narrow category of public records that reflects letter exchange by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. 00-ORD-168. However, the vague identifiers used in the Index prevented a determination that the emails were correspondences with private citizens. Further, the Index lacked sufficient description of the contents of the emails to indicate they were sent, "under conditions in which the candor of the correspondents depends on assurances of confidentiality."
Preliminary drafts "represent a tentative version, sketch or outline of a formal and final written product[.]" 18-ORD-134 (quoting 05-ORD-179, p. 5). Thus, KRS 61.878(1)(j) "is intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency." 10-ORD-023, (citing 00-ORD-139, p. 6). However, the Index lacked any explanation as to why the Governor's Office considered emails from the Louisiana Attorney General to be preliminary drafts or part of the agency's internal decision-making process. Likewise, the Index provided no explanation as to why the Governor's Office copied the Louisiana Attorney General on internal emails. See 18-ORD-196, p. 6 (finding that a draft was no longer "a tentative version, sketch or outline of a formal and final written product" upon public release of the record). As such, the Index provided insufficient evidence to support withholding the responsive records under KRS 61.878(1)(j). Consistent with KRS 61.880(2)(c) and Cabinet for Health and Family Servs. v. Todd Cty. Std., Inc. , this office concludes that the Governor's Office failed to satisfy its burden of justifying the denial of Appellant's request.
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)(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[.]"
2 KRS 61.878(1)(l) excludes: "Public record or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
3 KRE 503(b) provides: "General rule of privilege: A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client: (1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (2) Between the lawyer and a representative lawyer; (3) By the client or a representative of the client or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (4) Between representatives of the client or between the client and a representative of the client; or (5) Among lawyers and their representatives representing the same client."