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 Kentucky Public Service Commission ("PSC") violated the Open Records Act in its denial of Meta Mendel-Reyes' February 22, 2019, request, on behalf of the organization Kentuckians for the Commonwealth ("KFTC"), for communications related to Senate Bill 100 (SB 100) in the 2019 regular session of the Kentucky General Assembly. For the reasons that follow, we find that the PSC partially violated the Act.
Entitled "AN ACT related to net metering, " SB 100 was introduced on February 11, 2019, and signed into law on March 26, 2019. The act amended KRS 278.465, 278.466, and 278.467 to increase the maximum capacity for an "eligible electric generating facility," change the definition of "net metering, " and create several new provisions governing ratemaking, net metering, and customer-generators of electricity.
In her request to the PSC, Ms. Mendel-Reyes asked to inspect "[a]ny written communications, including email, or records of meetings pertaining to [SB 100] that have taken place between PSC staff or PSC Commissioners and: staff of the Kentucky Legislative Research Commission; members of the Kentucky General Assembly or their staff; members of the Kentucky Executive Branch; representatives of electric utility companies, including electric cooperatives; representatives of associations of electric utilities; solar installers or representatives of solar industry associations; representatives of the Kentucky Chamber of Commerce; or others registered in Kentucky as legislative lobbyists or executive branch lobbyists. " The PSC received the request on February 22, 2019.
On February 26, 2019, the PSC responded, stating that it had "determined that such records are not available to the public at this time. KRS 61.878(1)(i) exempts from open record requests preliminary drafts, notes and correspondence. KRS 61.878(j) [sic] exempts '[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. . ..' Any communications regarding pending legislation that the Commission or its staff may have had with the Legislative Research Commission, the Kentucky Legislature or members or staff of either group, or the other entities identified in your request fall under these exceptions." This office received KFTC's appeal on August 5, 2019.
As an initial matter, we find that the PSC's response to KFTC failed to comply with KRS 61.880(1), which requires any agency response denying access to public records to include "a brief explanation of how the exception applies to the record withheld. " This explanation must "provide particular and detailed information," not merely a "limited and perfunctory response."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A response that fails to identify in any way the records withheld does not comply with the requirements of KRS 61.880(1). 14-ORD-133. Because the PSC made no effort to identify records or categories of records withheld, but did "little more than recite the language of exception[s] and assert that no final action is taken on the materials," 05-ORD-179, the response was deficient and constituted a procedural violation of the Open Records Act.
KRS 61.878(1)(i) and (j), respectively, create exceptions to the Open Records Act in the cases of:
(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 [.]
In applying these provisions, we are mindful that "the basic policy of KRS 61.870 to 61.884 is 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, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871.
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." In 01-ORD-47, summarizing 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, we stated:
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.
It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes a 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). The Kentucky Court of Appeals reaffirmed this analysis in
University of Kentucky v. Lexington H-L Services, Inc., 579 S.W.3d 858 (Ky. App. 2018).
We have examined the disputed records in camera pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. In broadest terms, the records consist of four categories: (1) communications between representatives of the PSC and legislators or Legislative Research Commission ("LRC") staff; (2) communications between representatives of the PSC and private lobbyists; (3) communications between representatives of the PSC and the Governor's Office; and (4) communications between the PSC and the Energy and Environment Cabinet ("EEC"), to the Secretary's Office of which the PSC is attached for administrative purposes pursuant to KRS 224.10-022.
Communications with legislators or LRC staff
The PSC argues that its communications with legislators and LRC staff about SB 100 are exempt from disclosure under KRS 61.878(1)(j) as "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " This office has described the purpose underlying KRS 61.878(1)(j) as follows: "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 Educ. of Jefferson Cty., 873 S.W.2d 575, 578 (Ky. 1994)).
Among the PSC's communications with the legislative branch were two letters dated February 14 and February 18, 2019, signed by all three commissioners and addressed to Representative Jim Gooch, Jr., chairman of the House Natural Resources and Energy Committee, and his counterpart in the Senate, Senator Brandon Smith. The first letter expressed the PSC's support of SB 100, while the second letter, addressed only to Senator Smith, expressed the PSC's opposition to the version of SB 100 passed on February 15, 2019, by the House of Representatives. 1
The PSC contends that these letters, and the e-mails transmitting them, are preliminary recommendations and expressions of opinion which, as of KFTC's request on February 22, 2019, had not been adopted as the basis of final action because SB 100 "did not pass both Houses of the Legislature until March 14, 2019 and was not signed by the Governor until March 26, 2019." That argument, however, misconstrues the purpose and operation of KRS 61.878(1)(j), which exists "[t]o preserve the integrity of a public agency's internal decision making process." 14-ORD-014 (emphasis added); see also 18-ORD-182 (agency's communications with outside individuals about a matter before it were not internal discussions protected by KRS 61.878(1)(j)). Given this statutory purpose, it follows that the "final agency action" which deprives a record of preliminary status is not the final action of some other entity, 2 but the final action of the public agency that creates or possesses the record. 18-ORD-028. More specifically, an executive branch agency may not rely on the assertion that "final agency action" as to its records occurs only in the legislative branch. Id.
The PSC further argues that because it "has no authority to take final action on pending legislation," its communications pertaining to pending legislation can never lose their preliminary status. This argument reflects an excessively narrow understanding of "final agency action, " which need not always consist of some quasi-judicial or quasi-legislative action taken pursuant to a specific grant of jurisdiction. We have held, for example, that a letter sent by the Kentucky State Police ("KSP") Commissioner to two members of the Kentucky House of Representatives constituted final agency action by KSP. 18-ORD-196 (citing 18-ORD-175). See also 19-ORD-098 (Louisville Metro Government's execution of agreements with software company and financial provider constituted final agency action) . Here, the PSC formulated a final expression of its position as to a pending bill and transmitted it to members of the legislative branch as an act of advocacy. Those letters therefore constituted "final agency action" by the PSC. Accordingly, the letters were not "preliminary" under KRS 61.878(1)(j). Furthermore, none of the withheld e-mails transmitting those letters to the addressees, or to other individuals, are preliminary, because they are not recommendations or statements of opinion.
In addition to the two letters, the PSC withheld e-mails sent by its executive director on February 22 and 25, 2019, to a state representative and an LRC staff member, containing the PSC's requests for further amendment of SB 100. Because those communications likewise constituted advocacy by an executive branch agency to the legislative branch for specific changes to pending legislation, we find no basis to distinguish them from the PSC's earlier letters sent for the same purpose. As these February 22 and 25 e-mails contained no internal expressions of opinion or recommendations, but only statements of advocacy directed outside to the legislative branch, they were not exempt from the Open Records Act under KRS 61.878(1)(j). Also, as in the case of the letters, none of the withheld e-mails forwarding the February 22 and 25 messages to other individuals are preliminary, as their text contains no recommendations or expressions of opinion.
Communications with private lobbyists
The PSC characterizes its e-mailed communications with private lobbyists as "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " under KRS 61.878(1)(i). This office has consistently recognized that this exception to the Act does not extend to "all writings from individuals to a government agency." OAG 90-142. For example:
Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee, or enter into a government contract based on bids.
Id. Thus, in 00-ORD-168, we found that the Purchase Area Development District's Community Reuse Organization ("PACRO") could not deny public access to a letter from the U.S. Department of Energy advising its employee Jimmie Hodges that he would not have a legal conflict of interest working for ELR Consultants, when PACRO had relied upon that letter in hiring ELR as an outside consultant. Our primary basis for so holding was the fact that the letter "addressed an area relevant to the negotiations between PACRO and ELR" and Mr. Hodges had "transmitted a copy of the letter to PACRO . . . as a means of demonstrating" to PACRO the absence of a conflict of interest. As such, in accordance with the rule stated in OAG 90-142, the agency was "expected to rely on the correspondence to take some action"--namely, hiring ELR as a consultant.
In the course of our analysis in 00-ORD-168, we stated:
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.
We went on to observe that "analysis of the propriety of a public agency's reliance on KRS 61.878(1)(i) is largely fact specific," guided by the rule in KRS 61.871 that exceptions to the Open Records Act are to be "strictly construed." With regard to the Department of Energy's letter to Mr. Hodges, we stated:
Clearly, the letter in dispute does not qualify for exclusion as correspondence with a private individual since it was solicited by a federal employee in anticipation of his resignation from public employment. Nor can it persuasively be argued that the candor of the correspondents was dependent upon assurances of confidentiality [because] Mr. Hodges promptly transmitted a copy of the letter to PACRO. . . .
Thus, under the facts of 00-ORD-168, we found that the letter could not be withheld in reliance on KRS 61.878(1)(i) because PACRO had received it as part of Mr. Hodges' effort to secure the consulting contract for ELR.
The majority 3 of our other decisions rejecting the application of the "correspondence with private individuals" exception have, in like manner, been primarily based on the fact that the correspondence from private individuals was intended to petition or advocate for particular action by a public agency on a specific matter. See, e.g. , 99-ORD-220 (applications for licenses to conduct business); 01-ORD-86 (applications for purchase of conservation easements); 17-ORD-156 (requests to Louisville Metro Government for mayoral proclamations to be made).
In 04-ORD-192, we held that the exception did not apply to a petition to the city commissioners of Danville which advocated for the sale of city-owned land to a certain developer who sought to purchase it, because the petition was "a communication upon which the commission [was] expected to rely in taking action relative to the sale of the property." Accordingly, the petition "became an open record upon submission to the commission notwithstanding the fact that the commission had taken no final action in [the] matter." Id. (emphasis added). Similarly, in 07-ORD-181, we found that correspondence from private individuals to Lexington-Fayette Urban County Council members, advocating for particular action on a pending rezoning proposal, was outside the scope of KRS 61.878(1)(i) because the correspondence "was submitted with the goal of advocating or recommending a certain course of action" and nothing "suggest[ed] that the candor of the correspondents was dependent upon assurances of confidentiality. "
Here, the disputed records include correspondence with representatives of two professional lobbying firms and another advocacy organization, all of which are listed as incorporated entities by the Kentucky Secretary of State. In OAG 90-7, we opined that the phrase "private individuals" refers to "private human beings" and "would not, in common and everyday meaning, refer to a corporation." OAG 90-7 (citing KRS 446.015). Nevertheless, as in OAG 90-7, "we address the question here as if the phrase included a corporation."
We first note that the records produced in camera give no indication of any express or implied assurances of confidentiality. Furthermore, Kentucky law requires both executive agency lobbyists and legislative lobbyists to file detailed registration statements with, respectively, the Executive Branch Ethics Commission and the Legislative Ethics Commission. KRS 11A.211; KRS 6.807. "It is the public policy of this Commonwealth that a public servant shall work for the benefit of the people of the Commonwealth." KRS 11A.005. It is also Kentucky's public policy that "[t]he identity and expenditures of certain persons who attempt to influence executive and legislative actions should be publicly identified and regulated to preserve and maintain the integrity of government." KRS 6.801(2). This public policy is inconsistent with any expectation of "confidentiality" on the part of legislative or executive lobbying groups.
Moreover, the essential nature of lobbying is precisely "advocating or recommending a certain course of action" by a governmental entity. 07-ORD-181. The disputed records in this appeal are no exception to that rule, as they consist of either advocacy of specific action concerning pending legislation or requests for information to assist in private legislative lobbying efforts. Furthermore, we specifically find that one e-mail exchange between a lobbying firm and the PSC's executive director on February 6, 2019, was adopted as the basis of the PSC's letter to legislators dated February 14, 2019. For all of these reasons, we conclude that none of the PSC's communications with lobbyists constituted "correspondence with private individuals" under KRS 61.878(1)(i). 4
Communications with the Governor's Office
The PSC's relevant communications with the Governor's Office fall into three categories. The first consists of e-mails merely forwarding the PSC's February 18 and 25 legislative communications to representatives of the Governor's Office. We have already ruled that these e-mails were not "preliminary" because they contained no recommendations or expressions of opinion apart from the attachments.
The second category consists of two e-mailed memoranda marked "CONFIDENTIAL -- INTERNAL," circulated by an EEC representative to other representatives of the EEC as well as representatives of the PSC and the Governor's Office, concerning the status of several pending or proposed bills relating to the EEC. The dates of the e-mails are February 1 and February 16, 2019.
Only a small portion of each of these two memoranda relates to SB 100 or net metering. Consequently, the majority of their content is non-responsive to KFTC's request and may be redacted on that basis. As for the portions that address SB 100 or net metering, the threshold question is whether they contain recommendations or expressions of opinion. Based on our review, they consist entirely of factual statements about the status of legislation and the extent of involvement by the EEC or PSC. The only discussion of an opinion or recommendation is a mention of the PSC's letter of February 14, 2019, which we have already ruled was not a preliminary communication. Mere factual statements are not exempt from disclosure under KRS 61.878(1)(j). 19-ORD-146. Therefore, in the absence of any further explanation from the PSC, those relevant portions of the two memoranda must be disclosed.
The final communication between the PSC and the Governor's Office is a single e-mail dated February 12, 2019, from a PSC representative to a Governor's Office representative. Upon review, we find that this e-mail essentially consists of a notification that the PSC might be asked to testify on SB 100. By the time KFTC made its open records request, that event had either occurred or failed to occur. The e-mail contains no opinion, recommendation, or other formulation of policy, but only a statement that the testimony might occur. The PSC has not demonstrated how disclosing a communication of this nature, after the fact, would significantly affect "the integrity of a public agency's internal decision making process." 14-ORD-014. Therefore, we find that the PSC has not met its burden of proof under KRS 61.880(2)(c) in applying KRS 61.878(1)(j) to its communications with the Governor's Office.
Communications with the Energy and Environment Cabinet
Other than certain records we have already found non-exempt, the disputed communications between the PSC and the EEC consist of five separate e-mail exchanges. Because the PSC is administratively attached to the office of the EEC Secretary, we analyze these as internal communications for purposes of KRS 61.878(1)(j).
The first of these is an e-mail from an EEC representative dated February 12, 2019, regarding possible committee testimony by the PSC. As with the previous e-mail on this subject, we find no statement of opinion, recommendation, or formulation of policy in the text of the e-mail, and we note that the date of the potential testimony had passed prior to KFTC's request. Thus, we do not find the e-mail "preliminary" under KRS 61.878(1)(j).
The second e-mail, dated February 13, 2019, is from an EEC representative to various individuals, including the EEC General Counsel, marked "attorney-client privilege" and posing an essentially legal question. While the PSC does not invoke the attorney-client privilege in this appeal, we find that the e-mail constitutes an expression of opinion within the meaning of KRS 61.878(1)(j). As there is no indication that the communication was adopted as the basis of final agency action, or a decision to take no action, we conclude that it remains "preliminary" under the exception.
The third e-mail, also dated February 13, 2019, concerns an update to a legislative committee agenda. Because the portion relating to SB 100 consists entirely of factual statements and an attached copy of the committee agenda, we find KRS 61.878(1)(j) inapplicable. 5
The fourth e-mail, dated February 14, 2019, consists of a request for a fiscal impact statement on two bills, along with a forwarded e-mail from LRC giving the bill summaries with additional notes. As we find no expressions of opinion or recommendations in the e-mail, and it appears that the fiscal impact statement was to have been submitted prior to KFTC's request, we find that this record was not "preliminary" under KRS 61.878(1)(j).
The final document, dated February 15, 2019, consists of two e-mails between EEC and PSC representatives concerning the status of SB 100. The first e-mail, from the EEC to the PSC, consists entirely of a factual recital, and thus is not exempt under KRS 61.878(1)(j). The PSC's e-mail in response, however, consists of an expression of opinion that does not appear to have formed the basis of final agency action. Therefore, the second of the two e-mails may be redacted from the exchange pursuant to KRS 61.878(1)(j) .
Conclusion
Except as specified herein, the communications between the PSC and the EEC, the Governor's Office, members of the General Assembly, or representatives of the Legislative Research Commission are not exempt from disclosure under KRS 61.878(1)(j). Moreover, the PSC's communications with private lobbyists are not exempt as "correspondence with private individuals" under KRS 61.878(1)(i). Therefore, the PSC violated the Open Records Act by withholding those materials, and by failing to explain the purported application of KRS 61.878(1)(i) and (j) to the disputed records as required by KRS 61.880(1). We find specifically that the PSC properly invoked KRS 61.878(1)(j) as to its e-mail expressing an opinion to an Energy and Environment Cabinet representative on February 15, 2019, and as to the EEC's e-mail on February 13, 2019, marked "attorney-client privilege."
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 proceedings.
Footnotes
Footnotes
1 KFTC attached copies of both letters to its appeal, having evidently obtained them from another source.
2 In so stating, we do not derogate from our prior decisions concerning a public agency's ability to assert exceptions to the Open Records Act on behalf of another agency that possesses concurrent jurisdiction, or with which it collaborates on a particular investigation. See, e.g. , 09-ORD-127; 09-ORD-143.
3 00-ORD-98 (affirming OAG 90-7) was instead based on the principle that the Finance and Administration Cabinet could not rely upon KRS 61.878(1)(i) to withhold correspondence with a private contractor on issues relating to the administration of its public contract.
4 As the e-mails do not reveal the identities of the clients represented by the lobbying firms, it is unclear whether any of those clients were entities regulated by the PSC. We note, however, that "[i]t is equally inappropriate to apply the exception to communications between a state agency and a regulated entity in the scope and course of the agency's regulatory duties." 18-ORD-134.
5 An earlier attached e-mail, which does not relate to SB 100, may be redacted as unresponsive to the request.