Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Attorney General violated the Open Records Act in its disposition of Craig Richardson and Christopher Horner's April 21, 2016, request for certain e-mails of the Attorney General or his "Chief of Staff." For the reasons that follow, we find no violation of the Act.
In their April 21 request, Messrs. Richardson and Horner asked for copies of "all email correspondence (including attachments) sent to or from (including also as cc: or bcc: ) the Attorney General himself, or his Chief of Staff," from and after August 1, 2015, meeting the following descriptions:
1) which correspondence are [ sic ] to or from, or copy (including also as cc: or bcc: ) Ted White, and/or twhite@fahrllc. com, and/or Tom Steyer, and/or any @nextgenclimate. org address;
2) which correspondence are [ sic ] to or from, copy (including also as cc: or bcc: ) or mention the Democratic Attorneys General Association, DAGA, and/or any @democraticags. org address.
On April 26, 2016, Assistant Deputy Attorney General Mitchel T. Denham replied:
The documents that you have ? requested are exempt from production pursuant to KRS 61.878[(1)](i) and (j), Courier-Journal v. Jones, 895 S.W.2d 6 ([Ky. App.] 1995) and 08-ORD-217. A public official's appointment schedule and appointment calendars may be excluded from public inspection ? The Court of Appeals interpreted these exemptions to apply to appointment schedules and calendars because of the deliberative nature of those items and because they are merely drafts of what may or may not occur. ? In 08-ORD-217, our office applied Jones to [a] request for emails related to the Governor's itinerary and found those emails to also be exempt from production, stating, "preliminary planning ? and changes in those plans as they are refined and developed ? did not reflect final agency action. "
An appeal was initiated on May 18, 2016.
In a letter dated May 25, 2016, Mr. Denham elaborated on the agency's initial response. He advised that the relevant e-mail accounts from the previous administration no longer existed, and that "there were no hard copies or electronic copies of official documents ? transferred to the current administration related to this request." In addition, "the OAG does not believe any records related to request number 1 existed at any time on any of the email accounts," nor does it believe "any 'to, from, cc, or bcc' correspondence from the Democratic Attorneys General Association (DAGA) existed from the relevant timeframes. Furthermore, any internal documents 'mention[ing]' DAGA, if they did exist, would have been internal and preliminary documents, which would appropriately be destroyed or deleted in accordance with the advice and counsel of the Department of Libraries and Archives and the Office of the Attorney General's record retention schedules."
Regarding the current administration, Mr. Denham asserts that no responsive records exist that relate to item 1 of the request, and eleven pages 1 of responsive documents exist that relate to item 2. Pursuant to KRS 61.880(2), we have examined these documents in camera . They consist of an internal e-mail discussion related to scheduling a meeting, along with a number of internal e-mails listing the Attorney General's appointment schedule for particular days.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. With regard to the matters as to which no records exist from the previous administration, we presume, in the absence of contrary evidence, that the Office of the Attorney General followed the advice of the Department for Libraries and Archives as to records retention schedules and what records must be retained beyond the transition of administrations. Nor do we have reason to question the assertion that no records from the current administration exist which relate to item 1 of the request. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we find no violation of the Act in this instance.
As to the eleven pages of responsive records that were withheld, we find no error. KRS 61.878(1)(i) and (j) authorize the nondisclosure of the following types of records:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
It is well established that appointment calendars of public officials are exempt from public inspection as preliminary documents. Courier-Journal v. Jones, supra, 895 S.W.2d at 10 ("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; and all of which should be free from media interference"); see also 08-ORD-217; 05-ORD-018 (recognizing application of the principle to appointment schedules and calendars of other public officials). We therefore find no error in excluding the Attorney General's daily appointment schedules from inspection.
With regard to the one remaining e-mail discussion, communications aimed at setting up a meeting are generally recognized as preliminary unless they have been adopted as the basis of final agency action. See generally City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982). Furthermore, "the meeting must resolve the ultimate issue to constitute 'final action' [and] piecemeal disclosure along the path of the decision-making process is not mandatory." University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013) (citing Ky. State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 956 (Ky. App. 1983)). Since it does not appear from our review that the meeting in question resolved any ultimate issue, there are no grounds on which to conclude that the e-mail would have lost its preliminary character by being adopted as the basis of final action. Thus, we find no violation of the Open Records Act.
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 proceedings.
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