Wednesday, November 9, 2016

Energy Cabinet withheld records based on incorrect exemptions

The Energy and Environment Cabinet violated parts of the Open Records Act by withholding internal emails and parts of emails based on incorrect exemptions.

On Sept. 21, 2016, the Office of Attorney General Andy Beshear issued an opinion in the Open Records appeal of In re: Cathy Goguen/Energy and Environment Cabinet, 16-ORD-208.

Goguen submitted an Open Records request to the cabinet on June 24 stating a previous request had not been received by her in regard to a complaint and report related to the Americans with Disabilities Act.

Five days later she sent a follow-up email to the cabinet requesting a status update on the requested documents relating to email records or reports to a Nina Hockensmith from various persons.

On June 29, the day of the follow-up email, the cabinet responded. It stated it was still conducting search for records, stating officials anticipated having the records obtained and ready by July 8. Immediately Goguen replied that her first request was in May and she had not received that request yet, and added to her request.

Goguen also appealed to Beshear’s office on June 29 as well, stating the records were not provided in a timely manner and it had not released all records.

On July 11,  the cabinet said it had responded to Open Records request from Goguen 11 times since April in relation to 19 requests, with 312 documents provided to her since April. It also stated that it produced records to Goguen on June 30, and thus requested the appeal be dismissed as moot.

The cabinet attached an email dated June 30 to its response, where it stated that documents would be provided via a secure internet-based website where Goguen must log in to view the non-exempt records, but that 115 were exempt under KRS 61.872(1)(i) and (j), which are the internal and attorney-client privilege exceptions.

Other emails were attached to the response.

Beshear’s office requested to view the emails in question and asked the agency if any final action had been taken. The cabinet responded with the documents and noted that a letter from Hockensmith stated there was no ADA violation and no further action would be taken.

After reviewing emails claimed to be exempt under the internal-preliminary exemption, Beshear found that many of them consisted solely of factual communications, rather than recommendations or opinions. Thus they do not fall within the exemption, and the cabinet violated the Open Records Act in withholding them.

Beshear found that the parts of the emails that contained legal advice were exempt, but the emails with information that was available before being sent to the attorney were not exempt as privileged materials, again meaning the cabinet violated the Open Records Act.

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