Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Council violated the Open Records Act in denying Frederick D. Hatmaker's November 29, 2007, request for "all non-privileged information contained in the file" identified as:
A1 ID: 983790
A1 Name: Carolyn Hatmaker Property
Activity ID: ENV 2007001
Metro Council Member: Stewart Benson
Mr. Hatmaker indicated that his request included "emails, telephone contacts, exhibits, and any other correspondence. " For the reasons that follow, we find that the Council's reliance on KRS 61.878(1)(a) and (i) to deny Mr. Hatmaker's request in its entirety was partially misplaced.
In its December 6, 2007, response to Mr. Hatmaker's request, Metro Council Clerk Kathy Herron advised that "there only exists some email correspondence and such correspondence is exempt from disclosure under KRS 61.878(1)(i) (notes, correspondence with private individuals) and (a) (unwarranted invasion of personal privacy) ." She explained that "Mr. Benson has chosen to invoke those statutory exemptions because the correspondent wishes to remain anonymous. "
By letter dated April 30, 2008, Jon L. Fleischaker initiated this open records appeal on behalf of Mr. Hatmaker, asserting that "[u]nder the requisite strict construction, neither of these exceptions to disclosure permits the Metro Council to withhold the public records at issue here." It was Mr. Fleischaker's position that a correspondent's desire for anonymity, standing alone, "is a woefully inadequate reason to invoke [KRS 61.878(1)(a) ]," and that the Council "did not provide an explanation of how the exemption applies to the records withheld . . . ." By the same token, Mr. Fleischaker argued, the Council failed to explain how KRS 61.878(1)(i) applies to the disputed records. He noted that "[t]here is no suggestion that the 'correspondent' is a private individual," no "information regarding the purpose of the correspondence, " no "indication as to whether there was an ongoing action by the Metro Council with respect to the Carolyn Hatmaker property," and therefore no meaningful way to ascertain whether the records actually qualify for exclusion under KRS 61.878(1)(i), or consist of "'correspondence with private individuals' where an agency is asked to rely on the writing to take some action" and therefore not properly excludable under KRS 61. 878(1)(i) as construed in OAG 99-ORD-220. 1
In supplemental correspondence directed to this office following commencement of Mr. Fleischaker's appeal, the Council expanded on its position through Assistant Jefferson County Attorney Paul V. Guagliardo. Noting that "there is no statute or judicial decision in this state that holds that a citizen's private communication to an elected official is a matter of inherent public interest, " Mr. Guagliardo maintained that "[t]he correspondent's personal privacy trumps the minimal public interest in the substance of the correspondence . . . ." He described "the nature of the correspondence to Mr. Benson" as "an expression of citizen's concerns," asserting that "[t]he correspondent's privacy interests were not 'created' by his/her wish to remain anonymous . . .[, but] already existed and were merely reinforced by the correspondent's expression of his/her desire to remain anonymous. "
With reference to the Council's invocation of KRS 61.878(1)(i), Mr. Guagliardo argued that the disputed email correspondence were "notes" as defined in the Merriam-Webster Online Dictionary, representing little more than "a brief comment or explanation" and "a short informal letter." It was his position that "there is no hint that the correspondence gives notice of any action by the Metro Government, let alone 'final' action." On this basis, Mr. Guagliardo concluded, "the 'notes' contained in the emails consisted of correspondence by and between private individuals and government employees or officials and were not only 'preliminary' but reflected no final government action."
We find that the Council properly relied on KRS 61.878(1)(a) and (i) in denying that portion of Mr. Hatmaker's request that implicates the email exchanged by the correspondent and a representative of Mr. Benson's office on October 22, and October 23, 2007. Further, we find that under authority of KRS 61.878(1)(a) the Council may properly redact the name and email address of the correspondent from any subsequent emails responsive to Mr. Hatmaker's request on which he/she is merely copied. In view of the correspondent's repeated requests that his/her identity not be disclosed, and the nature of his/her communications with Mr. Benson's office, we believe that this decision is clearly distinguishable from 07-ORD-181 and the authorities cited therein.
In 07-ORD-181, 2 this office rejected the Lexington-Fayette Urban County Government's denial of an open records request for correspondence exchanged by named council members and a number of citizens opposing an application for historic overlay. Applying the analysis contained in an earlier line of open records decisions, we recognized that not all correspondence with private individuals qualifies for exclusion from public inspection under KRS 61.878(1)(i), concluding that the disputed correspondence was improperly withheld because it was submitted with the expectation that the council would rely on it in taking action and because nothing in the correspondence suggested that the candor of the correspondents was dependent upon assurances of confidentiality. A copy of 07-ORD-181 is attached hereto for purposes of contrast. We likened the correspondence at issue to the signed petition supporting the sale of city owned property at issue in 04-ORD-192 which we characterized as "a formal written document requesting a right or benefit from a group in authority upon which that group was expected to rely in taking action relative to the sale of the property." 07-ORD-181, p. 5, citing 04-ORD-192. At page 4 of 04-ORD-192, we observed:
As "a formal written document requesting a right or a benefit from a person or group in authority," Webster's II New Riverside University Dictionary, p. 879 (1984), it is a public declaration of support to which these individuals affixed their signatures. It therefore cannot be characterized as "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurance of confidentiality, " but is in the nature of a communication upon which the commission is expected to rely in taking action relative to the sale of the property. The city acknowledges that the signers affixed their signatures with the goal of "advocat[ing] or recommend[ing] certain policy action." Because it cannot be properly characterized as correspondence with a private individual, it became an open record upon submission to the commission notwithstanding the fact that the commission had taken no final action in this matter. Accord, OAG 80-450; OAG 83-134; 00-ORD-172; 05-ORD-072; 05-ORD-144.
On this basis we concluded that the correspondence opposing the application for historical overlay at issue in 07-ORD-181 was not exempt from public inspection, opining:
Like the document at issue in 04-ORD-192, the correspondence at issue in this appeal is in the nature of communications upon which the Council is expected to rely in taking action relative to the proposed historic overlay, and was submitted with the goal of advocating or recommending a certain course of action. Nothing in the record on appeal, or the disputed correspondence itself, suggests that the candor of the correspondents was dependent upon assurances of confidentiality. Our conclusion is not altered by the fact that the Council's ultimate decision in this matter "is based on the evidence presented at the hearing." The disputed correspondence was, in fact, submitted with the expectation that the Council would rely on it to take the course of action advocated by the correspondent, and [therefore] does not qualify as correspondence with a private individual. Consistent with those open records decisions, the correspondence becomes an open record upon submission . . . .
Having examined the correspondence in the appeal now before us, we conclude that it is clearly distinguishable from the correspondence at issue in 07-ORD-181.
To begin, the correspondent 3 does not petition Mr. Benson or the Council by advocating or opposing any particular course of action, but instead expresses concerns, and asks a number of questions, about the referenced property. Certainly, there is nothing in the record on appeal that suggests that he/she transmitted these emails with the expectation that Mr. Benson, or the Council generally, would rely on them in taking action. The record on appeal does, however, confirm, that the emails were exchanged "under conditions in which the candor of the correspondents depended on assurances of confidentiality. " While we find no request for anonymity in the initial email he/she submitted to Mr. Benson's office, the Council's response to Mr. Hatmaker's appeal expressly states that "the correspondent wishes to remain anonymous. " Mr. Guagliardo echoes this expressed desire in his May 14 supplemental response, noting that he "personally spoke with the correspondent last week and the correspondent has affirmed his/her desire to maintain anonymity and his/her desire that the email correspondence remain confidential." Because his/her email was not submitted to Mr. Benson with the expectation that he or the Council would rely on it in taking some action, it enjoys protection as correspondence with a private individual within the meaning of KRS 61.878(1)(i). The correspondent's request for anonymity, here supported by his/her identity as a private citizen as the nature of his/her communication, provides an additional statutory basis for denying access under KRS 61.878(1)(a). We find no error in the Council's denial of that portion of Mr. Hatmaker's request which implicates the October 22 and 23, 2007, emails exchanged by the correspondent and a representative of Mr. Benson's office.
The protections afforded by these exceptions do not extend to the emails that were generated by various public officials between October 29, 2007, and November 26, 2007, that relate to the referenced property but on which the correspondent was only copied. While the Council may properly redact his/her name and email address from these emails, we find that they must otherwise be disclosed. As communications exchanged by public officials on a matter pertaining to public business, they clearly do not enjoy protection under KRS 61.878(1)(a) as records containing personal information the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy or KRS 61.878(1)(i) as correspondence with private individual other than correspondence intended to give notice of final action of a public agency.
We decline the Council's invitation to construe the term "notes" so broadly as to encompass email communications relating to public business, regardless of how "brief" or "informal" they are, but continue to ascribe to the view that the term "notes," as it appears in KRS 61.878(1)(i) , applies to a "brief record written down to aid the memory," such as notes taken at a meeting. 97-ORD-183, p. 3. To find otherwise would render KRS 61.878(1)(j) a redundancy insofar as a recommendation or memorandum in which opinions are expressed or policies formulated can be brief and informal, and, under the Council's line of reasoning, qualify as "notes." It is therefore our opinion that the Council improperly relied on KRS 61.878(1)(a) and (i) in denying those emails exchanged by public officials between October 29 and November 26 that relate to the Carolyn Hatmaker property. Consistent with the statutory requirement that public agencies separate the excepted and make the nonexcepted material available for examination, we conclude that only the "correspondents'" name and email address may be redacted from these emails under authority of KRS 61.878(1)(a).
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The Council's response to Mr. Hatmaker's request violated KRS 61.880(1) insofar as it did not contain the "brief explanation of how the exception[s] appl[y] to the record[s] withheld, " much less the "particular and detailed" information contemplated by the Kentucky Court of Appeals in Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
2 07-ORD-181 was appealed to the Fayette Circuit Court (Lexington-Fayette Urban County Government v. Mark Barker, filed September 26, 2007, 07-CI-04590), and is pending in the 9th Division of that court.
3 The record on appeal confirms that the correspondent is a private citizen. Compare, e.g., 05-ORD-030 (absence of a substantiated privacy interest, in the form of a request for anonymity, and/or circumstances warranting a reasonable expectation of confidentiality, and the presence of a compelling public interest in ascertaining whether agency's performance of its public duties was influenced by the identity of the complainant mitigated in favor of disclosure of that identity).