Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Park Hills ("City") violated the Kentucky Open Records Act ("Act") in the disposition of a request submitted by Gretchen Stephenson ("Appellant"). For the reasons stated below, we find that the City did not violate the Act when it withheld emails that were not responsive to Appellant's request. We also find that the City violated the Act when it withheld emails that were "preliminary" pursuant to KRS 61.878(1)(i) -(j) and when it withheld email messages that were not exempt under KRS 61.878(1)(i)-(j), and the attorney-client privilege.
On October 18, 2018, Appellant submitted a request for copies of emails of City Councilman Karl Oberjohn exchanged from September 18, 2018 to October 18, 2018. Appellant specifically described the email messages she was seeking as "[e]mails to and from Karl Oberjohn and Malissa Eaves" and "[e]mails to and from Karl Oberjohn and Kellye Ledbetter."
On October 22, 2018, the City denied the request. The denial stated that there were no responsive emails from Councilman Oberjohn's city email address, but there were responsive exchanges from his personal email account. The City denied those communications were public records and stated that they were "exempt from inspection" under the Act. The City also denied the requests pursuant to KRS 61.878(1)(i) and (j), stating that all "responsive communications were confidentially exchanged between Mr. Oberjohn and a few private citizens. . .concern[ing] a preliminary draft of an ordinance. " The City also stated that the messages were exempt under KRS 61.878(1)(l) and Kentucky Rules of Evidence (KRE) 503 as attorney-client communications.
On October 23, 2018, Appellant appealed, asking whether Councilman Oberjohn could "use his private email to conduct city communications regarding ordinances to be brought before council." On November 1, 2018, attorney Kyle Winslow responded on behalf of the City. Mr. Winslow argued that the responsive emails were "private communications between Mr. Oberjohn and Ms. Eaves and Ms. Ledbetter regarding a draft human rights ordinance. " However, Mr. Winslow argued alternatively that the emails are preliminary pursuant to KRS 61.878(1)(i). He stated that the parties "expected the communications to be confidential, " and "Mr. Oberjohn. . .sent an email from his Gmail account to maintain its privacy. . .with a statement that the communications were confidential. " Mr. Winslow also argued that the emails are preliminary pursuant to KRS 61.878(1)(j). He argued that the City had not yet discussed or adopted the draft ordinance, and the messages contain "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " Finally, Mr. Winslow argued that the messages contained legal advice and summaries of attorney opinions regarding the draft ordinance.
We requested copies of the disputed email messages for purposes of confidential in camera review, pursuant to KRS 61.880(2)(c) 1 and 40 KAR 1:030, Section 3. 2 The City complied and included a description of the search for responsive records with the copies.
The Responsive Emails in the Private Account Are Public Records Subject to Disclosure Under the Act .
The City stated that there are no responsive email messages in Councilman Oberjohn's City email account, and provided a detailed description of its search for records. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-ORD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194. Accordingly, we find no violation of the Act with respect to the City's response as it pertains to Councilman Oberjohn's City email account.
However, we find that the responsive email messages in Councilman Oberjohn's private account are subject to public disclosure under the Act. The right to inspect only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 10. However, this office has admonished "public employees against using private cell phones to carry out public work in an attempt to shield such communications from the purview of the [Act]." 15-ORD-226, p. 5. The records submitted for in camera review show that Councilman Oberjohn used his private email account with the intent to shield the communications from the public. We cannot discuss the content of records submitted for in camera review. However, the records indicate that the Councilman used his private account believing that he would receive candid advice in the responses. The records also indicate that Councilman Oberjohn intended to use the advice he received in revising and obtaining City council support for the proposed ordinance. As such, the records establish that the Councilman was aware that he was conducting public business in the email exchanges. The records also indicate that the Councilman intended to use the responses in conducting public business.
We have also found that a public agency cannot escape accountability for public records by forwarding them to a non-public location, and that includes a private email account used by an employee to conduct public business. See 17-ORD-273. The emails submitted for in camera review contain public records as attachments. The Councilman attached copies of proposed drafts to one email for the recipients to review and suggest revisions. "A record that is 'used' by a public agency is a public record of that agency under the definition of the term 'public record' found at KRS 61.870(2). 3 " 12-ORD-178 (emphasis in original.) If records are "used . . . by a public agency, " "they are subject to the Open Records Act, regardless of where they are located or whose 'personal property' they are considered." 17-ORD-050; 17-ORD-273; 18-ORD-032. As such, we find that the responsive emails in Councilman Oberjohn's private account are public records subject to public disclosure unless an exception applies.
The City Properly Withheld the Nonresponsive Email Messages .
The email messages submitted for in camera review consist of sixteen individual email messages from Councilman Oberjohn's private account. Six of the emails are "[e]mails to and from Karl Oberjohn and Malissa Eaves" and "[e]mails to and from Karl Oberjohn and Kellye Ledbetter." The remaining messages are exchanges between Councilman Oberjohn and individuals other than Ms. Eaves and Ms. Ledbetter. Appellant did not specifically identify those emails as a subject of her request. Therefore, the City properly withheld 10 email messages as nonresponsive.
The Initial Email Message and Attachments are Preliminary under KRS 61.878(1)(j) .
The first responsive email message was sent on October 6, 2018 by Councilman Oberjohn. The message is a summary of the proposed ordinance, with attached copies of the proposed ordinance and other related drafts. Our in camera review of this message indicates that it contains opinions and recommendations, and the attachments are all preliminary drafts. The record establishes that the City has not yet taken final action on the proposed ordinance. As such, the message and attachments were properly withheld as "preliminary."
KRS 61.878(1)(j) authorizes the withholding of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]" Emails containing strategies, opinions, or recommendations that have not been adopted as the basis of final agency action fall within the coverage of KRS 61.878(1)(j). 17-ORD-004. 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.) Until such time as the City takes final action on the proposed ordinance, the City may properly withhold Councilman Oberjohn's October 6, 2018 email message and its attachments pursuant to KRS 61.878(1)(j).
The Reply Email Message is Preliminary under KRS 61.878(1)(i) .
Malissa Eaves replied to Councilman Oberjohn's message on October 6, 2018. Councilman Oberjohn sent the message to request advice on revising and implementing the proposed ordinance, and assured the recipients that they could freely express their opinions and advice. Our in camera review reveals that Ms. Eaves relied on that assertion and replied with candid advice. As such, the reply email is "preliminary" within the scope of KRS 61.878(1)(i).
This office has recognized that KRS 61.878(1)(i)'s exemption for "correspondence with private individuals" does not extend to "all writings from individuals to a government agency." OAG 90-142. In 00-ORD-168, we found the following:
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.
The "correspondence with private individuals" exception applies to Ms. Eaves because she is a private individual and there is no evidence that she is an employee or contractor of the City or any other public agency. We have found that the conditions affecting the candor of the correspondents must be assessed in view of the totality of the circumstances. 18-ORD-117. The record establishes that the candor of Ms. Eaves' reply was dependent upon Councilman Oberjohn's assurances of confidentiality. As such, the City did not violate the Act when it withheld the October 6 reply email pursuant to KRS 61.878(1)(i).
The Remaining Email Messages are not Exempt under Either KRS 61.878(1)(i), KRS 61.878(1)(j) or KRS 61.878(1)(l) .
The four remaining responsive emails consist of an exchange of three brief messages on October 7, 2018, 4 and a lengthy email sent on October 18, 2018 from Councilman Oberjohn to Ms. Ledbetter. These emails are not exempt under either KRS 61.878(1)(i)--(j) or the attorney client privilege of KRE 408, incorporated into the Act by operation of KRS 61.878(1)(l).
The October 7, 2018 emails appear to be a conversational exchange. We have found that "conversational-type e-mail communications such as statements containing factual information, but which are devoid of recommendations, opinions, or policy formulations, are not exempt under KRS 61.878(1)(i) and (j)." 05-ORD-210; 16-ORD-257. The parties discuss the proposed strategy of a non-public agency regarding the proposed ordinance. However, KRS 61.878(1)(j) applies to protect the integrity of internal decision making process related to public employees and public officials, but not to the decision-making process of a non-public agency. Neither does the record reveal any assurances of confidentiality associated with these exchanges, as required for application of KRS 61.878(1)(i). As such, we find that the City violated the Act when it withheld three of the four brief emails exchanged on October 7, 2018.
The October 18 email is a message sent by Councilman Oberjohn to pass on a draft of a letter. He informed the recipients that they could "[f]eel free to share it with the group." As such, the email is not "preliminary" within the meaning of KRS 61.878(1)(i)-(j). In University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d at 378, the 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.) Councilman Oberjohn adopted the draft letter by permitting the recipients to share the letter with the public, including the members of the non-public agency.
The City argues that the email is protected by the attorney-client privilege because it includes summaries of the City Attorney's opinions regarding the draft ordinance. The Kentucky Court of Appeals has recognized that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] by the Kentucky General Assembly." Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). However, the attorney-client privilege, codified under KRE 503 and operating in tandem with KRS 61.878(1)(l) 5, is not absolute. The privilege only 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 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)).
The October 18 email is not a protected attorney-client communication. Ms. Eaves and Ms. Ledbetter are not clients of the City Attorney because they are not employees of the City or any other public agency. Even assuming the City Attorney communicated the information to Councilman Oberjohn confidentially, the privilege was waived by including individuals who are not parties listed in KRE 503. In addition, the privilege was waived when the Councilman gave the recipients permission to share the message with other individuals. We find that the City violated the Act when it withheld the October 18 email from Councilman Oberjohn to Ms. Eaves and Ms. Ledbetter.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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.
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