Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Office of the Governor ("Governor's Office") violated the Open Records Act in withholding emails concerning the Governor's schedule as preliminary, and in withholding emails concerning clinics as preliminary, attorney-client privileged, or both. We find that the Governor's Office initially violated the Open Records Act in not providing a brief explanation of how the exemption applied to the records withheld, but subsequently cured that deficiency on appeal. The Governor's Office did not violate the Open Records Act in withholding emails concerning the Governor's schedule. The Governor's Office did not violate the Open Records Act in withholding emails concerning certain clinics as preliminary, attorney-client privileged, or both, with the exception of two emails.
Background
Louisville Public Media ("LPM") appeals the denial of two open records requests by the Governor's Office. The first requested records concerning any meetings between the Governor's Office and University of Louisville President James L. Ramsey. The second requested communications between the Cabinet for Health and Family Services ("CHFS") and the Governor's Office concerning clinics.
Regarding the first open records request, LPM submitted a request to the Governor's Office by email on Jan. 25, 2016. LPM requested "a list of all meetings Gov. Bevin or his staff have had with University of Louisville President James Ramsey or his staff during his term as Kentucky Governor, " "the dates and locations of the meeting(s), as well as a list of who was present from both the governor's staff and from U of L," and "copies of any and all notes from the meeting(s), as well as any and all information about the purpose of the meeting(s), including agendas and emails. " The Governor's Office responded on Jan. 29, 2016, denying the requests on the grounds that they were exempted under KRS 61.878(1)(i) and (j). LPM sent a follow-up request, stating that it was revising its request to the following:
1. Copies of all emails between Gov. Bevin or the governor's office and U of L President James Ramsey or his office since the governor's inauguration.
2. Copies of agendas of any meetings between Gov. Bevin or his staff and U of L President James Ramsey or his staff since the governor's inauguration.
The Governor's Office responded on Feb. 5, 2016, stating that "we have located an email pursuant to this request that relates to the Governor's schedule. However . . . , such documents and/or records are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j). (See also
Courier-Journal v. Jones, Ky. App., 985 S.W.2d 6 (1995) and 04-ORD-211.)" Regarding the request for agendas, the Governor's Office stated that "there are no records in the Office of the Governor responsive to your request."
Regarding the second open records request, on Jan. 28, 2016, CHFS issued a cease-and-desist letter to Planned Parenthood of Indiana and Kentucky directing them to cease conducting abortions. LPM submitted another open records request, undated, to the Governor. LPM requested:
. Any/all electronic communications from 10-1-2015 to 2-1-16 between the Governor's office and the Cabinet for Heatlh [sic] and Family Services regarding abortion clinics, applications to operate abortion clinics and/or licenses to operate abortion clinics.
. Any/all electronic communications from 10-1-2015 to 2-1-2016 between the Governor's office and the Office of the Inspector General regarding abortion clinics, applications to operate abortion clinics and/or licenses to operate abortion clinics.
The Governor's Office responded on Feb. 5, 2016, stating:
We have located several e-mail records which are responsive to your request. These records consist of communications between Steve Pitt, the Governor's General Counsel, Chad Meredith, the Governor's Deputy General Counsel, who both have been acting as counsel for the Cabinet for Health and Family Services, and various staff persons of the Cabinet and the Governor's Office. However, these records are exempt from disclosure under KRS 61.878(1)(i) and (j).
. . .
Moreover, . . . the records you have requested are privileged and protected under the attorney/client privilege pursuant to KRS 503. KRS 61.878(1)(l) . . . . operates in tandem with KRS 503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. . . . The e-mails contain legal opinions, conclusions and advice, or communications generated by and between them and members of the Cabinet and the Governor's Office for the purpose of facilitating the rendition of legal services and advice. Moreover, all such communications have remained confidential.
LPM appealed the Governor's Office's denial of both requests on Feb. 12, 2016. Regarding the first request, LPM argued that KRS 61.880(1) requires " a brief explanation of how the exception applies to the record withheld . . . . Here, there was no explanation at all." LPM also argued that "the exceptions at KRS 61.878(1)(i) and (j) do not apply here. . . . An email between the Governor and the President of a public university cannot possibly qualify as exempt under KRS 61.878(1)(i). Such an email is not 'preliminary draft' [sic] or a 'preliminary note' because it was actually sent and received."
Regarding the second request, LPM stated:
Emails between the Governor and the Cabinet or the OIG are not exempt under KRS 61.878(1)(i). Such emails are not 'preliminary drafts' or a 'preliminary notes' [sic]. They are correspondence that was actually sent and received. . . .
The Governor's Office is also wrong to contend that all of the responsive emails are 'preliminary recommendations' or a [sic] "preliminary memoranda in which opinions are expressed or policies formulated or recommended" under KRS 61.878(1)(j). The OIG and the Governor's Office have taken final action both by issuing the January 28, 2016 cease-and-desist letter to Planned Parenthood and by publicly announcing their position on the licensure issue in multiple fora. . . .
An in camera inspection also will reveal the flaws in the Governor's invocation of the attorney-client privilege . . . .
The attorney-client privilege only protects legal advice and does not apply to attorney communications relating to business advice, political advice, or other topics. . . .
Further, a communication is not privileged if it was disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services . . . . In this situation, many of the withheld are likely to have been disclosed to third persons . . . . 1
The Governor's Office responded on Feb. 19, 2016. Regarding its denial of the first request, the Governor's office stated that it did not violate KRS 61.880(1) because it stated that it "had located an e-mail responsive to his request that related to the Governor's daily schedule," citing to 05-ORD-144 and
Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. Ct. App. 1995). The Governor's Office stated that the emails were properly withheld "under the authority of KRS 61.878(1)(i) and (j), as construed in Courier-Journal v. Jones and 05-ORD-018."
Regarding the second request, the Governor's Office argued that the requested emails were still preliminary documents on the grounds that "the alleged 'cease-and-desist' letter, which is nothing more than a notice of violation," did not constitute final agency action, as the "license application is still pending." The Governor's Office further argued that "officials must be able to make preliminary comments on such matters without fear that those comments will be thrown into the public arena. Otherwise, the executive branch will not be able to function as it should," citing to 96-ORD-205. The Governor's Office also maintained that the emails were protected by attorney-client privilege, stating that "the e-mails contain legal opinions, conclusions, and advice, or communications generated by and between them and members of the Cabinet and the Governor's Office for the purpose of facilitating the rendition of legal services and advice, " and reiterated that "all such communications have remained confidential. " The Governor's Office then provided a summary description of the communications withheld and the exemptions under which it claimed to withhold them.
On Feb. 26, 2016, under KRS 61.880(3) , this office asked to review in camera the documents withheld by the Governor's Office. The Governor's Office complied with that request on Mar. 4, 2016. 2 On Mar. 9, 2016, LPM submitted a reply to the Governor's Office's response to our request to view the documents in camera . LPM reiterated that the email pertaining to the Governor's schedule "is not 'preliminary' because it was actually sent between the Governor's office and UofL." LPM also reiterated that the emails withheld by the Governor's Office pertaining to clinics were not preliminary for the same reasons, and that "the attorney-client privilege only protects legal advice and does not apply to communications relating to business advice, political advice, or other topics."
Analysis
Regarding the first request for emails pertaining to any meetings between the Governor's Office and President Ramsey, LPM argues that the Governor's Office violated the Open Records Act by not providing a brief explanation for how the exception applies to the records withheld. KRS 61.880(1) provides that "an agency response denying . . . 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. " The Governor's Office stated only that the documents relating to the Governor's schedule "are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j). (See also
Courier-Journal v. Jones, Ky. App., 985 S.W.2d 6 (1995) and 04-ORD-211.)" The Governor's Office did not provide a brief explanation of how the exemption applied, but merely cited to authorities. "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. Ct. App. 1996). "A 'limited and perfunctory response,' however, does not 'even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." 15-ORD-097 (quoting Edmonson, 926 S.W.2d at 858). Accordingly, the Governor's Office procedurally violated the Open Records Act in not providing a brief explanation of how the exemption applied to the records withheld. However, the Governor's Office subsequently cured that deficiency on appeal.
Regarding the substance of the appeal, KRS 61.878(1)(i) exempts from the Open Records Act, "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency." Similarly, KRS 61.878(1)(j) exempts "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." In
Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. Ct. App. 1995), the court addressed an open records request for the Governor's daily appointment ledgers. Id. at 7. The Court stated that, "we view the Governor's appointment schedule as nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness." Id. at 10. 3 Following Jones , in 08-ORD-217, we held that an agency "properly relied upon KRS 61.878(1)(i) and (j) in withholding access to the e-mails relating to the Governor's itineraries and schedules." A review of the email in question confirms that it relates to the Governor's schedule, and is therefore preliminary. Accordingly, we find that the Governor's Office did not violate the Open Records Act in withholding emails relating to the Governor's schedule.
Regarding the second request for emails between the Governor's Office and the Cabinet for Health and Family Services concerning clinics, the Governor's Office claims that they are exempt under KRS 61.878(1)(i) and (j). However, "once such notes or recommendations are adopted . . . as part of its action, the preliminary characterization is lost, as is the exempt status."
Ky. State Bd. of Med. Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky. Ct. App. 1983). Therefore, "our analysis does not end with a determination that documents are preliminary in character, but instead also requires a determination of whether such documents, or portions thereof, were ultimately adopted as the basis or a part of the agency's final action." 14-ORD-181.
The Governor's Office also claims that some of the emails are exempt under KRS 61.878(1)(l), which exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." "The attorney-client privilege attaches 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 representatives, the lawyer, or the lawyer's representatives.'"
The St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 776 (Ky. 2005). "The protections generally afforded by the attorney-client privilege have been recognized and incorporated into the statute by the Kentucky General Assembly."
Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. Ct. App. 2001). However, "the attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions."
Commonwealth, Cabinet for Health and Family Servs. v. Scorsone, 251 S.W.3d 328, 330 (Ky. 2008). "KRE 503(b) only applies when . . . all three of the following elements are present: 1) relationship of attorney and client; 2) communication by or to the client relating to the subject matter upon which professional advice is sought; and 3) the confidentiality of the expression for which the protection is claimed." 12-ORD-075. "The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. "
Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).
LPM argues that the cease-and-desist letter sent to Planned Parenthood constitutes final agency action, while the Governor's Office argues that it was merely a preliminary document. To our knowledge, this office has never squarely decided whether the issuance of a cease-and-desist letter constitutes final agency action. We decline to establish a general rule here, instead finding that whether a cease-and-desist letter constitutes final agency action depends on the facts and circumstances of the case. In this case, the particular cease-and-desist letter was not the final action taken by the agency, but a step as part of a longer investigation and litigation process which has not concluded. Under these circumstances, we do not find that the issuance of a cease-and-desist letter was a final agency action. Accordingly, documents incorporated as part of the cease-and-desist letter remain preliminary until incorporated as part of a final agency action.
In its response to this office's request to review the documents in camera , the Governor's Office provided several email chains, which are discussed in turn together with the exemptions that the Governor's Office claims apply to them:
. Emails which were forwarded by Steve Pitt, General Counsel to the Governor on Jan. 28, 2016 to Chad Meredith, Deputy General Counsel to the Governor, Blake Brickman, Chief of Staff to the Governor, Scott Brinkman, Secretary to the Governor's Executive Cabinet, Andrew McNeill, Senior Policy Advisor to the Governor, Adam Meier, Deputy Chief of Staff to the Governor, Jessica Ditto, Communications Director for the Governor's Office, Catherine Easley, Deputy Chief of Staff to the Governor, Vickie Glisson, Secretary of CHFS, and Steven Davis, CHFS Chief of Staff. The forwarded emails contained emails dated Jan. 28, 2016 between Steve Pitt and Carole Christian, counsel for a clinic on Jan. 28, 2016, which themselves contained emails dated Dec. 1 through Dec. 7 between Carole Christian and Maryellen Mynear, former CHFS Inspector General, concerning inspection of a clinic - The Governor's Office claims that these are preliminary documents. The emails are correspondence with private individuals other than correspondence which is intended to give notice of final action, and have not been adopted as the basis for final agency action. The emails are therefore exempt under KRS 61.878(1)(i).
The Governor's Office claims both the preliminary documents exemption and attorney-client privilege for the following emails:
. Emails dated Jan. 25 through Jan. 28, 2016 between Steve Pitt, Chad Meredith, and Steven Davis concerning drafts of a letter to a clinic - The emails concern drafts of a letter, and are therefore preliminary. They are also between lawyers in the Governor's Office and their client, CHFS, concerning legal action against a clinic. The emails are therefore exempt under KRS 61.878(1)(i) and (l).
. Emails dated Jan. 28 through Jan. 29, 2016 between Steve Pitt, Chad Meredith, Steven Davis, Vickie Glisson, Blake Brickman, Scott Brinkman, Andrew McNeill, Adam Meier, Catherine Easley, Jessica Ditto, Carole Christian, and Nate Haney, Deputy Secretary of the Governor's Executive Cabinet, regarding a letter sent out to a clinic and an inspection of the provider's facility --The emails contain preliminary recommendations for an investigation and communications with private individuals other than those which reflect final agency action, and are therefore exempt under KRS 61.878(1)(i) and (j). The emails also discuss information and advice for a legal action, and are therefore attorney-client privileged and exempt under KRS 61.878(1)(l).
. Emails dated Jan. 29 through 30, 2016 between Steve Pitt, Chad Meredith, Jessica Ditto, and Steven Davis concerning a news story involving a clinic -- The emails indicated that a decision was made to take no action regarding the news story, and are therefore no longer preliminary. However, the emails are between lawyers and representatives of the Governor's Office and CHFS concerning legal advice. Accordingly, the emails are exempt under KRS 61.878(1)(l).
. Email dated Jan. 28, 2016 from Steven Davis to Chad Meredith providing a fax number for a clinic -- The email is not a correspondence with a private individual, but a correspondence between public officials. It is not a document in which preliminary policies are recommended or formulated. Therefore, it is not exempt as preliminary under KRS 61.878(1)(i) and (j). The email, although it is between an attorney and a client, is not for the purpose of providing legal advice; it merely provides a fax number for a clinic and discusses nothing else. Accordingly, the email is not exempt as either preliminary or attorney-client privileged.
. Emails dated Jan. 29 through Jan. 31, 2016 between Steve Pitt, Chad Meredith, Steven Davis, Vickie Glisson, Stephanie Hold, Acting Inspector General of CHFS, and Melanie Poynter, Assistant Director of the Office of the Inspector General of CHFS, concerning investigation of a clinic --The emails concern investigative proceedings and preliminary recommendations. They are also between lawyers in the Governor's Office and their client, CHFS, concerning potential legal action against a clinic. The emails are therefore exempt under KRS 61.878(1)(j) and (l).
. Emails dated Jan. 29, 2016 between Steve Pitt, Chad Meredith, Steven Davis, and Jessica Ditto concerning a press release about a clinic -- Many of the emails in the chain contain preliminary recommendations and suggestions, but the last two emails in the chain appear to contain the final draft of the press release and its approval by the general counsel, and are therefore not preliminary. However, the emails contain legal advice and information upon which legal advice was given. Accordingly, the emails are attorney-client privileged and exempt under KRS 61.878(1)(l).
. Emails dated Feb. 1, 2016 between Catherine Easley, Steve Pitt, Blake Brickman, Adam Meier, Vickie Glisson, Steven Davis, Andrew McNeill, Jessica Ditto, and Chad Meredith concerning a Facebook post -- The emails contain suggestions on a draft, but the final email in the chain contains only a link to the Facebook post. The link to the Facebook post constitutes final agency action, and is therefore no longer preliminary. Although emails in the chain involve advice by the Governor's lawyers, the link to the Facebook post at the end of the email chain was publicly disclosed, and therefore waived any attorney-client privilege as to the post itself. Accordingly, the final email containing the link to the Facebook post is neither preliminary nor attorney-client privileged. The Governor's Office must therefore produce the final email containing the Facebook post, but may redact other information in the email chain as preliminary and/or attorney-client privileged under KRS 61.878(4).
Of the emails withheld by the Governor's Office concerning clinics, all were either preliminary documents, attorney-client privileged documents, or both, with the exception of an email providing a fax number of an clinic and an email containing a link to a Facebook post. In withholding those two emails, the Governor's Office violated the Open Records Act, but did not violate the Open Records Act with regard to the other emails withheld.
In summary, the Governor's Office initially violated the Open Records Act in not providing a brief explanation of how the exemption applied to the records withheld, but subsequently cured that deficiency on appeal. The Governor's Office did not violate the Open Records Act in withholding an email relating to the Governor's schedule as a preliminary document. The Governor's Office did not violate the Open Records Act in withholding emails concerning certain clinics as preliminary, attorney-client privileged, or both, with the exception of two emails.
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. Under 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 proceedings.
Footnotes
Footnotes
1 LPM also argued that the Governor's Office failed to perform an adequate search because its "open records request covered the time period of October 1, 2015, through February 1, 2016. Yet, the only responsive emails identified by the Governor's Office are from the current Governor's administration, which began on December 8, 2015." The Governor's Office responds that it "sent an email to all employees in the Governor's Office" which "quoted the language of the request, with the exception of the date restrictions. . . . Several records were located and reviewed by the Governor's Office of General Counsel, including records which were discovered and dated prior to the beginning of Governor Bevin's administration. The search employed in this instance which included a search of the server was reasonable." We agree with the Governor's Office that the search described was adequate.
2 The documents in question have been destroyed concurrent with the issuance of this decision in accordance with 40 KAR 1:030 § 3.
3 LPM attempts to distinguish Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. Ct. App. 1995) on the grounds that it involved "a request for more than a year's worth of entries on a governor's daily appointment ledgers. . . . Here, the request is not for multiple entries in the Governor's appointment schedule of events that may or may not have taken place. The request is for an email which was sent and received and is clearly not a mere 'draft of what may or may never take place.'" However, LPM's position would completely undercut the holding of Jones that the Governor's schedule is preliminary by allowing a requester to obtain any emails discussing the Governor's schedule other than the schedule itself.