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 Energy and Environment Cabinet (EEC) violated the Open Records Act in its disposition of Mary Varson Cromer's September 1, 2016, request for "[a]ll enforcement records against Martin County Water District from 2000 to the present." For the reasons that follow, we find a partial violation of the Act.
While numerous records were provided to Ms. Cromer by EEC, certain documents were withheld as being "pre-decisional" in reliance on KRS 61.878(1)(i) and (j). In a response sent on or about September 16, 2016, 1 EEC described these as "notes, letters, referrals, and memos" :
There are several internal emails, referrals, and memorandum [ sic ] between representatives of each agency within the Energy and Environment Cabinet regarding investigations concerning alleged violations by Martin County Water District. The emails/memorandum contains internal deliberations in which opinions are expressed and recommendations are made along the path of the decision, but preliminary to EEC management making a final determination regarding the matters that are still being investigated. Many other documents are unsigned, undated preliminary drafts of a [ sic ] letters, memorandum, and correspondence.
A log was provided with a brief description of each withheld record. Ms. Cromer initiated an appeal to this office that was received on September 29, 2016. In order to evaluate EEC's claims of exemption, we obtained a copy of the disputed records for in camera review.
In a response to the appeal dated October 3, 2016, Assistant General Counsel J. Michael West explains further:
Most of the documents referenced on the privilege [ sic ] log contain internal discussions and/or statements of policy and recommendations by Cabinet personnel, and are thus exempted from disclosure.
?
[T]he document titled, "Meeting Request 6-18-04" is an unsigned copy of a draft letter of which the final, signed copy provides final notice of the agency action.
[T]wo of the documents exempted were the settlement correspondence from the Water District provided herewith. Additionally, the Executive Summary dated July 22, 2016 relates to the current enforcement action. It was not incorporated into the Final Order [an Agreed Order filed October 3, 2016]. Therefore, the Cabinet takes that position that it continues to be exempt from disclosure.
[A]t least one of the remaining documents is a preliminary draft of an Agreed Order from about 2005. That draft was preliminary to a final Agreed Order later entered into by the Cabinet and Water District. The final, approved version of that Agreed Order gives notice of the action taken by the Cabinet.
The remaining 14 documents are all briefing sheets, case closure memos, enforcement referrals, and general memos which contain recommendations, policies, notes, and/or opinions related to agency action (s). Those documents were not incorporated into a final action of the Cabinet, and, therefore, those documents retain preliminary status.
We shall address these records individually by their designations on the log provided to Ms. Cromer.
KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in the 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[.]
"To preserve the integrity of a public agency's internal decision making process by promoting full and frank discussion between and among public employees and officials and by equipping them with the tools needed in hammering out official action, 'the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality' in pre-decisional records not adopted in that official action." 14-ORD-014 (quoting
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 578 (Ky. 1994)).
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 exemption after final agency action is taken:
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.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658, 659, 660 (Ky. App. 1982). It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action. "In our view, the courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing City of Louisville, supra).
We assume from the record that none of the enforcement actions represented in the disputed documents are still pending. Accordingly, the status of each document depends on, first, whether it falls within the scope of KRS 61.878(1)(i) or (j), and second, whether it has been adopted as the basis of final agency action. "Final agency action" is understood as "when the ultimate issue to be decided [is] resolved."
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013). Excluding those items identified by EEC as duplicates, there are 21 documents at issue, addressed here by the names given on the log provided to Ms. Cromer.
Briefing Sheet MCWD -- 1/30/06
This appears to be an early-stage investigative document containing opinions and recommendations, in the form of notes. As it does not appear that this document would have served as the basis of final agency action, we affirm its exclusion.
Briefing Sheet -- 2/28/05
This is a similar document, but somewhat more formally structured than "Briefing Sheet MCWD," and includes an attachment bearing a 2004 date. Both the Briefing Sheet and the attachment contain specific recommendations, labeled as such. The record is unclear as to whether either of these recommendations was adopted as the basis of final agency action. If so, however, the document containing the adopted recommendation will have lost its preliminary character.
Case Closure Memo -- 11/30/12
Closure Memo -- 5/22/09
Each of these items is an internal document within the Division of Enforcement recommending closure of a case. Though marked "confidential," each document by all appearances was adopted as the basis of the agency's closure of an enforcement matter that had already been resolved. To the extent these could be called pre-decisional documents, they lost their preliminary character with the resultant closure of the cases. Furthermore, to the extent the documents pertain to compliance, we have ruled that a post-decisional communication relating to compliance measures is not protected by KRS 61.878(1)(i) or (j) because it is "not in the nature of pre-decisional expression of opinion or formulation of policy . . . but is instead a record or accounting of compliance measures [and] 'agreed-upon action.'" 02-ORD-097. Accordingly, the case closure memoranda were improperly withheld as preliminary.
Conference Response -- 4/4/16
Conference Response -- 5/16/16
These two documents represent correspondence received from the Martin County Water District in furtherance of settlement negotiations, containing proposals not adopted as the final settlement. Settlement communications of this nature are protected under KRS 61.878(1)(i) and (j). 14-ORD-014. We therefore affirm the nondisclosure of these documents.
December 12 2007 meeting -- 12/12/07
This is a set of notes made from a meeting by an unknown person. As there is no indication that these notes were adopted as the basis of final action, they remain exempt under KRS 61.878(1)(i).
DOW 02058 Case Summary -- 3/1/04
This appears to be a compilation of an inspector's notes updating the status of a case at some intermediate stage, including occasional opinions and recommendations. As this document does not appear to have been adopted as the basis of final action, it remains exempt.
Enforcement Referral
This undated document contains essentially the same information that appears on the Briefing Sheet dated January 30, 2006. The agency relies on KRS 61.878(1)(i), but not (j), in support of the exemption of this document. Although it is not clear by whom it was prepared, or for whose benefit, it appears to reflect notes from an early stage of the enforcement action. As this does not seem to have been adopted as the basis of final action, we affirm its exclusion.
Executive Summary -- 7/22/16
This appears to be an internal summary of the terms of the Agreed Order that was eventually adopted in the most recent Martin County Water District matter. Presumably this Executive Summary would have been reviewed, in conjunction with the Agreed Order, by those persons having authority to approve the order. It recites, in abbreviated form, the actual terms of the final Agreed Order. In the absence of any evidence to the contrary, therefore, we find that this document was adopted as part of the basis for the Agreed Order filed October 3, 2016, and should be disclosed.
Jan. meeting PSC -- 1/27/05
Although this document is incongruously titled "Minutes from Meeting with PSC," it is by all appearances notes taken at a meeting between representatives of the Division of Water and the Public Service Commission. Since there is no indication that these notes would have been adopted as the basis of final action, we affirm their exclusion.
Martin Co AO
This is a preliminary draft of a 2005 Agreed Order with the Martin County Water District, with attached cover letter to the district's Board Chairman and an Executive Summary. The record does not contain the final version of that Agreed Order. If this draft was adopted as the final Agreed Order, then it was adopted as the basis of final action and should be disclosed; if not, it is excludable as a preliminary draft constituting part of settlement negotiations.
Martin Co Water District # 1 Enforcement Referral
Martin Co WD 1 Enforcement Referral
These two documents are "Enforcement Case Referral forms" of the same type as the "Enforcement Referral" addressed above. For the same reasons, we find them exempt under KRS 61.878(1)(i).
MCWD Case Res Prop
This "Case Resolution Proposal" appears to be an internal document within the Division of Enforcement, proposing a resolution of an enforcement matter. EEC claims exemption under KRS 61.878(1)(i), presumably as a preliminary draft or notes. The record does not reflect whether this proposal was ultimately adopted as the basis of a final agency action. If so, it should be disclosed; otherwise, it is an exempt pre-decisional document.
Meeting 061205 -- 6/12/05
This unsigned document consists of notes from a meeting, apparently between the Martin County Water District and the Division of Water. Since there is no indication that these notes were adopted as the basis of final agency action, we find them exempt from disclosure.
Meeting Request 6-18-04 -- 7/1/04
This document is an unsigned letter from the Drinking Water Branch Manager to the Chairman of the Martin County Water District. EEC claims exemption under KRS 61.878(1)(i) , but does not specify whether the letter is considered a preliminary draft or correspondence with a private individual. Although we do not regard this letter as correspondence with the Chairman in his private capacity, it is nonetheless exempt if it is, in fact, merely a preliminary draft. 99-ORD-206.
Memo -- 6/1/06
This "Memorandum, " not addressed to or from any person, appears to be a page of notes. There is nothing to indicate that these notes were adopted as the basis of final action; therefore, we affirm the nondisclosure under KRS 61.878(1)(i).
Mtg Minutes -- 2/20/06
This document actually consists of a "cc" of an e-mail from an individual not affiliated with EEC that forwards and comments on minutes of a meeting of a group known as the "MOA -- Martin County Project." It is not clear that this e-mail is even responsive to Ms. Cromer's request, as it does not explicitly appear to relate to enforcement. Assuming the document is responsive, however, it is unclear on what basis EEC has invoked KRS 61.878(1)(i) and (j), since this is not an internal discussion involving EEC. Furthermore, if the "MOA -- Martin County Project" is a public agency within the scope of the Open Meetings Act, its meeting minutes would be open to public inspection pursuant to KRS 61.835. We therefore find that EEC has not met its burden to establish exemption for this document.
Return Receipt Agreed Order & Cover Ltr -- 11/18/11
This consists of one page from USPS.com showing delivery of an item of certified mail, in respect to which EEC invokes KRS 61.878(1)(i). Since this is not a preliminary draft or note, nor is it apparent how an agreed order and cover letter in this context would constitute correspondence with a private individual, we find that EEC has failed to meet its burden of proof as to this item.
Updated MC Briefing -- 2/28/05
Although not identified as such, the last item on EEC's is merely a duplicate of the second item, "Briefing Sheet 2/28/05."
Accordingly, we conclude that EEC has met its burden of proof with respect to 11 of the 21 disputed items, and has not done so as to five items. As to the remaining five items, the resolution depends on facts not present in the record.
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 must 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 Ms. Cromer expressly states: "I do not raise any timeliness issues in this appeal."