Friday, August 19, 2016

AG's office correctly denied request due to overly broad nature to avoid fishing expeditions

Attorney General Andy Beshear issued an opinion regarding his own office in an Open Records opinion issued on July 6, 2016. 

The specificity of the request was at issue In re: Russell Carollo/Office of the Attorney General, 16-ORD-138.

Carollo requested access to and copies of all records dating back to January 2011 related to Deloitte, where he named specific types of documents he was looking for, plus all other public records related to the company. Carollo also requested the attorney general to include information that might be considered technically exempt. 

Beshear’s office responded in a timely manner, having spoken with Carollo the previous day about IRS forms prepared by the company, but having nothing to do with the company itself, stating the forms would not be produced. The office also deemed newsletters that briefly mentioned that the company was in the news were not responsive and would not be produced.

The office also refused to produce preliminary documents, due to the statutory exemption give to those types of documents, along with other work-product and attorney-client privilege materials.
Carollo appealed, asserting that the attorney general's office did not identify withheld materials specifically and because no legal exceptions were cited. The attorney general responded, stating that everything was sufficiently specific in descriptions, and that no partial documents were provided because the statute protects the whole document.

The opinion stated that when materials are non-responsive to an Open Records request, the public agency is not required to cite specific statutory exemptions to justify a denial of the documents. 

The two parties communicated through emails detailing the scope of Carollo’s request, where Carollo stated the attorney general's office could exclude the form 990s prepared by the business in question, but that Carollo wanted any contracts between the Commonwealth and Deloitte. The office provided Carollo with the appropriate agency for him to contact and request copies of such contracts. 

Beshear affirmed the denial of the broad request by Carollo based upon 16-ORD-082, issued at the beginning of May. Because Carollo asked for anything in any way related to Deloitte, even though he named specific types of documents, he left the door wide open when he requested “all public records” that in any way identify Deloitte. The statute requires a person requesting docments to “precisely describe” the records being requested.

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