Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Board of Elections ("SBE") violated the Open Records Act ("Act") in the disposition of a request for records submitted by Jessica Huseman ("Appellant"), reporter for ProPublica. For the reasons stated below, we find that SBE violated procedural requirements of the Act but properly withheld responsive records as preliminary under KRS 61.878(1)(i), 61.878(1)(j), and the homeland security exception at KRS 61.878(1)(m). We find that the Attorney General has no authority to impose monetary penalties in an open records appeal, pursuant to KRS 61.882(5).
On November 30, 2018, Appellant submitted an open records request to SBE seeking "copies of any contracts with CyberScout, as well as an accounting of all payments made to CyberScout," "reports produced by CyberScout, redacted as necessary," and "any emails between any employee of the board of elections of secretary of state's office and any employee of CyberScout from June of 2016 to the present." SBE requested additional time to respond to the request and, on January 4, 2019, Appellant "emailed both Ms. Milburn and Ms. Galyon 1 to request that this request be provided digitally." She received no response to that email.
On January 3, 2019, SBE responded to Appellant's requests, disclosing 191 pages of records, 42 of which were entirely blank. SBE disclosed the responsive records in hard copy format and charged Appellant a copy fee of ten cents ($ 0.10) per page. SBE altered the records by applying a page number at the top of each disclosed record. Also, SBE withheld an unidentified number of records responsive to the request, stating the following:
To the extent the documents requested contained preliminary drafts, notes, or correspondence with private individuals, or privileged communications, the records were not produced pursuant to KRS 61.878. Further, [SBE] invokes the homeland security exception to the Kentucky Open Records Act under KRS 61.878(1)(m) which prevents disclosure of final reports relating to election security. Pursuant to KRS 61.874 this agency imposes a copying fee of $ 0.10 per page . . . .
Appellant appealed the disposition to this office. In her appeal, Appellant argues that SBE's responses violated KRS 61.880(1) by withholding responsive records and not explaining how many or what types of records were withheld. 2 Appellant argued that SBE inappropriately assessed costs for hard copies when she requested digital versions and that she was charged for blank copies. 3 Finally, Appellant requested the Office of the Attorney General assess a fine against SBE if it finds SBE violated the Open Records Act.
On May 17, 2019, SBE responded to the appeal. SBE stated that its initial responses complied with KRS 61.880 because it "did identify the exemptions applicable to the records withheld and/or redacted as required[.]" SBE argued that the exceptions at KRS 61.878(1)(i), 61.878(1)(j), and the homeland security exception at KRS 61.878(1)(m) authorized them to withhold the requested records. SBE argued that the Act does not require "particularized statements about each record" or require "SBE to create . . . a privilege log for each record." SBE also argued that it assessed a reasonable fee for producing the hard copies. Regarding Appellant's request for a monetary penalty, SBE argued "KRS 61.882(5) provides that fines for violations of the [Act] may only be awarded at the discretion of a reviewing court , not the Attorney General[.]"
On April 25, 2019, our office requested copies of the withheld responsive records for the purpose of in camera review. The request was made pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. On May 17, 2019, SBE disclosed copies of the withheld responsive records and included a letter that categorized the responsive records. Regarding Appellant's February 19 request, SBE disclosed 159 pages of responsive records. SBE argued that pages 1 through 123 fell "within the 'homeland security' exception under KRS 61.878(1)(m)," and "were withheld because they contain the results of sensitive audits of the Commonwealth's election infrastructure, including, but not limited to, information related to election security, infrastructure weaknesses, voting equipment concerns, and software and engineering practices." SBE argued that pages 124 through 159 are "preliminary," and also fall under the homeland security and public safety exception at KRS 61.878(1)(m).
SBE's Initial Responses Violated KRS 61.880(1) . SBE violated KRS 61.880(1) by failing to include a statement of the specific exception authorizing the withholding of records and a brief explanation of how the exception applied to the records withheld. SBE's initial response did not identify the responsive records or assign the records to meaningful categories. SBE also repeated a non-specific boilerplate paragraph that failed to identify a specific exception or explain how that exception applied to a particular record or category of records. Therefore, we find that SBE failed to meet the procedural requirements of KRS 61.880(1).
A public agency must identify or categorize the records withheld to satisfy KRS 61.880(1). 18-ORD-231; 05-ORD-248. In Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996), the Court of Appeals found that KRS 61.880(1) requires the agency "to provide particular and detailed information in response to a request for documents," admonishing the public agency for its "limited and perfunctory response." In 2013, the Supreme Court reaffirmed this view, declaring that an agency's denial must be "detailed enough to permit [the reviewer] to assess its claim and the opposing party to challenge it." Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 82 (Ky. 2013). SBE's initial responses and non-specific boilerplate language failed to meet these minimum standards.
SBE argues that neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974). However, "we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable. " 97-ORD-41, p. 6 (footnote omitted); 04-ORD-106. In City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013), the Kentucky Supreme Court held that an agency "must identify and review its responsive records, release any that are not exempt, and assign the remainder to meaningful categories ." (Emphasis added). The Court found that a category is meaningful if it "allows the court to trace a rational link between the nature of the document and the alleged likely [harm to the agency]." Id. (quoting Bevis v. Dept. of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)).
Though SBE did provide meaningful categorizations of the withheld records and identified the specific applicable exceptions on appeal, KRS 61.880(1) requires that information in the initial response so that the requester has a meaningful opportunity to challenge the withholding of responsive records. See Kentucky New Era, Inc., 415 S.W.3d at 82; 18-ORD-231, p. 5-6. Accordingly, we find that SBE violated KRS 61.880(1).
SBE's Page Numbering on Responsive Records Violated the Act . Though Appellant did not make this specific argument, we find that SBE violated the Act when it provided Appellant copies of responsive records marked and altered with page numbering. The Act creates a public right to inspect public records at KRS 61.872(2). 4 However, the Act also gives the public the right to receive copies of public records. KRS 61.874(1) states, "the custodian of the records shall duplicate the records or permit the applicant to duplicate the records[.]" See also KRS 61.872(3)(b). 5
The only exception to the right to receive duplicate copies under KRS 61.874(1) is a public agency's duty to redact excepted material or information. In KRS 61.871, the General Assembly declared that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed[.]" Regarding those exceptions, KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." In discharging this duty to redact, our office observed that public agencies often create a duplicate of the original record, make appropriate redactions, and disclose the redacted record. 14-ORD-229, p. 4. The agency satisfies its duty under KRS 61.872(2), and KRS 61.872(3)(b), as well as KRS 61.878(4), by affording the requester access to the redacted copy of the original record. Id. The Act does not permit redaction, alteration, or marking of copies of responsive public records in any other way.
We have stated that, "what the public gets is what [the agency has] and in the format in which [the agency] has it." OAG 91-12, p. 5; see 13-ORD-023; 08-ORD-090 (Public agency discharged its duty by mailing requester a copy of records bearing handwritten notes where only existing copy in agency possession also bore the notes.) The responsive records SBE disclosed did not require redactions, subject to KRS 61.878(4). The Act did not permit any other markings of the responsive records. Accordingly, SBE violated KRS 61.874(1) and failed to provide Appellant duplicate copies of the responsive records.
SBE Properly Withheld Records Pursuant to the Preliminary Drafts Exception . SBE properly relied on KRS 61.878(1)(i) and (j) when it withheld documents responsive to Appellant's request. Our in camera review shows that SBE withheld 35 pages containing mostly emails which SBE properly characterized as preliminary drafts pursuant to KRS 61.878(1)(i) and (j). SBE met its burden of proof and justified withholding these responsive records.
This office is precluded from disclosing the contents of the records provided for in camera review. However, we can describe them as emails from and to staff and subordinates in the Secretary of State's office, the State Board of Elections, and Cyberscout. The emails consist of drafts, questions, and ideas related to election security. 6 The rationale underlying KRS 61.878(1)(i) and (j) is to facilitate frankness and candor in internal communications exchanged by staff and subordinates. See 93-ORD-125, p. 4. Therefore, this office has found that withholding such exchanges produces "an atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision." See OAG 88-85, p. 4; 15-ORD-202; 18-ORD-216. Deciding otherwise would cast a chilling effect upon the ability of the government to function as a system. See 05-ORD-027 (upholding the denial of non-final internal agency memorandum from subordinate to superior regarding fleet services); 18-ORD-196 (upholding denial of emails containing exchanges of recommendations and opinions on future policies).
Although SBE properly characterized the responsive emails as preliminary in character, KRS 61.878(1)(i) and (j) require an additional determination of whether the records were ultimately adopted as the basis or part of the agency's final action. 19-ORD-063 (quoting 16-ORD-106); 11-ORD-052, p. 3. Public records of a preliminary nature forfeit their status upon being adopted by the public agency as a basis for its final action. See OAG 83-405; OAG 89-69; 12-ORD-055; 15-ORD-189; University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (ratifying the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). However, no evidence exists that SBE incorporated any of the email messages into a final action. As such, SBE properly relied on KRS 61.878(1)(i) and (j) to withhold emails responsive to Appellant's request.
SBE Properly Withheld Records Pursuant to the Homeland Security Exception . SBE argued that some of the withheld records are exempt under the homeland security exemption in KRS 61.878(1)(m), incorporated into the Act by operation of KRS 61.878(1)(k). 7 It further clarified in its appeal that the records were exempt according to KRS 61.878(1)(m) 1.f. 8 In relevant part, that statute exempts from disclosure:
Public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act and limited to: . . . Infrastructure records that expose a vulnerability referred to in this subparagraph through the disclosure of the location, configuration, or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage, and gas systems.
The restrictive language found at KRS 61.878(1)(m)1.a.-h. and KRS 61.878(1)(m)2. requires that disclosure of the disputed records must have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act as defined at, and only as defined at, KRS 61.878(1)(m) 2. See 17-ORD-179.
In its response to this appeal, SBE submitted an "unclassified statement from the U.S. Department of Homeland Security characterizing election infrastructure cyber risks." It also submitted a "Statement by Secretary Jeh Johnson on the Designation of Election Infrastructure as a Critical Infrastructure Subsector." 9 The Secretary wrote, "it is clear that certain systems and assets of election infrastructure meet the definition of critical infrastructure. " He defined "election infrastructure" as "storage facilities, polling places, and centralized vote tabulations locations used to support the election process, and information and communications technology to include voter registration databases, voting machines, and other systems to manage the election process and report and display results on behalf of state and local governments."
This office is precluded from disclosing the contents of the records provided for in camera review. However, we can affirm that SBE has appropriately categorized the records as meeting the definition of "election infrastructure, " "storage facilities, polling places, and centralized vote tabulations locations used to support the election process, and information and communications technology to include voter registration databases, voting machines, and other systems to manage the election process and report and display results on behalf of state and local governments." SBE has demonstrated that the disclosure of the records at issue "would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act," namely to "[d]isrupt a system identified in subparagraph 1.f." of KRS 61.878(1)(m). KRS 61.878(1)(m)2.b. SBE's contention that disclosing "the records sought could compromise the integrity of our [electoral] systems" is well-founded and supported by the record. Accordingly, we find SBE has met its burden under KRS 61.878(1)(m).
SBE Did Not Violate KRS 61.874(2)(a) . Appellant further argues that she should not have been charged any copying fee in light of her January 4, 2019, request to receive the records in digital form. Pursuant to KRS 61.874(2)(a), public records "shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. " Where a party specifically requests electronic copies of electronic records, a public agency may not impose a fee for making paper copies. 19-ORD-087; 14-ORD-148. Here, however, Appellant's original November 30, 2019, request did not specify electronic copies and her January 4 request for digital copies arrived after SBE had mailed hard copies of responsive records. Further, in light of her express reference to the possibility that copying fees might exceed 30 dollars ($ 30), SBE properly understood her request as one for paper copies, and complied with that request on March 15, 2019. Therefore, we find no violation or subversion of the Act.
Nevertheless, we find SBE violated the Act by failing to respond to Appellant's January 4 email requesting "digital copies" of the records. This communication constituted a new open records request and SBE was therefore obligated to respond within three days, excluding weekends and legal holidays. KRS 61.880(1). "A failure to respond to an open records request is tantamount to a denial of the request without specific basis." 05-ORD-176 (citing 02-ORD-116). Accordingly, SBE's lack of response to the e-mail constituted a violation of the Act.
SBE Subverted the Intent of the Act by Charging Appellant for Blank Copies . As to the blank pages Appellant was charged for in response to her request, SBE explained that the records had been "scanned double-sided" because some of the originals were double-sided. We read this statement as an implicit admission of error and, accordingly, find that SBE improperly charged Ms. Huseman for copies of blank pages, thus imposing an excessive fee and subverting the intent of the Open Records Act, short of denial of inspection, within the meaning of KRS 61.880(4). 10
The Attorney General has no Authority to Impose Monetary Penalties in an Open Records Appeal . We decline Appellant's request that we consider penalties. This office has long recognized that it has no authority to impose monetary penalties for violation of the Act. See, e.g. , OAG 79-380; OAG 80-367; OAG 81-264; 93-ORD-135; 95-ORD-88; 98-ORD-21; 99-ORD-121; 08-ORD-041. The relevant provision of the Act, KRS 61.882(5), provides:
Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney's fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($ 25) for each day that he was denied the right to inspect or copy said public record. Attorney's fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation.
(Emphasis added.) In construing this provision, this office has observed:
The language of [KRS 61.882(5)] is abundantly clear. Only the courts may impose penalties for denial of inspection of public records. [Citations omitted.] For this reason, the Attorney General's Office has consistently refrain[ed] from opining on whether records were willfully withheld pursuant to KRS 61.882(5).
99-ORD-121, p. 18 (citing OAG 90-58, p. 6). The office thus declines Appellant's request.
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 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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