Purpose of a request is not a factor a public entity can consider before fulfilling record request

The purpose of an Open Records Act request is an irrelevant point in the public agency's decision to turn over records properly requested. 

Attorney General Andy Beshear ruled against the public official in an opinion in In re: Crystal Emberton/Carroll County Jailer, 16-ORD-136, released July 6, 2016. 

Emberton requested records, videos, and other evidence depicting an incident in the lobby of the county’s detention center on April 12. Three days later, Jailer Michael Humphrey informed Emberton that it would cost $25, plus $5.80 for shipping. The reply also included that if the request was for legal purposes, she was allowed to pay and get the requested records, but if it was for social media, he would refuse the request. 

The money was paid for the records, but Emberton never heard anything more from Humphrey, which prompted her to appeal to Beshear. Humphrey responded to the appeal, which argued that the Open Records Act required Emberton to state the purpose for obtaining the records. It also alleged that there was an exemption because the jail was a law enforcement agency. 

The attorney general's opinion ruled this response and reasoning were not adequate justifications for not provided the requested records. 

Beshear stated the law enforcement exception was not cited properly nor explained in the response, as the act required agencies that are denying a response to specifically state the exception. The law enforcement exception requires that the agency must be involved in an administrative adjudication with information compiled for violations, if disclosure would harm the agency. 

Beshear assumed in the opinion that the jailer and detention center was a law enforcement agency, but stated that Humphrey failed to establish the requirements of the exception, in that he did not show that the records were compiled “in the process of the detecting and investigating statutory or regulatory violations.”

He also stated that Humphrey failed to illustrate that there would be harm to the agency if the records were released, as per the Kentucky Supreme Court in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). 

Finally, Beshear went over the purpose requirement that Humphrey alluded to. In 08-ORD-080 it is stated that the purpose of how requested records will be used is not material to the decision to comply. This means that an agency cannot require a party to state the purpose of the request and consider it in complying or not complying with the request. 

Humphrey was found in violation because he did not provide a lawful basis to withhold the records. 

Beshear says UK not in violation because records requested did not exist

The University of Kentucky did not violate the Open Records Act when requested to turn over specific items that did not exist.

Attorney General Andy Beshear issued an opinion on June 30, 2016, holding the University of Kentucky did not violate the Open Records Act in In re: Lachin Hatemi/University of Kentucky, 16-ORD-134. 

Hatemi requested documents and agreements between UK and the Kentucky Medical Services Foundation about a "joint defense arrangement." UK responded that no such records exist, which prompted Hatemi to appeal to the attorney general. 

The appeal stated that UK contradicted itself. In an earlier open records appeal, the university referred to a joint defense arrangement. 

UK replied again, stating the university and the foundation looked through their records and neither found anything that applied to the request. Because the university made a good faith effort and found nothing, it fulfilled its statutory burden per the Open Records Request. 

Beshear found that the case was distinguishable from an earlier opinion, 15-ORD-210, because Hatemi identified no statutes, regulations, or case law that required UK to create a written agreement about a joint defense arrangement. 

The opinion also referenced Broessel v. Triad Guaranty Insurance Corporation, 238 F.R.D. 215 (W.D. Ky. 2006) which Beshear says illustrates that joint defense arrangements are not commonly reduced to writing, and there is no legal requirement to have it in writing. 

A city official's emails related to a position on a private agency are not subject to disclosure

Members of a public agency are not required to turn over records that are held in his or her capacity as a member of a board of a private entity.

Attorney General Beshear issued an opinion in In re: Messenger-Inquirer/Deborah May Nunley, 16-ORD-132 on June 30, 2016, dealing with the request of a newspaper for records from a commissioner of Owensboro. 

The Messenger-Inquirer requested records from Commissioner Deborah May Nunley via email on April 21. Nunley also is chair of the board of directors of Owensboro Health, Inc. The request was for records pertaining to the resignation of Philip Patterson, president and CEO of Owensboro Health. The newspaper also sought any emails with city officials about the resignation. 

The newspaper specifically stated it was seeking records from Nunley because of her position as chair of the board of directors. Owensboro Health operates the Owensboro Regional Hospital, which has more than 4,000 employees and a medical staff of 200, according to its website. 

The day after the request, Nunley responded she had no emails about the resignation. She corrected that the same day, turning over to Steve Lynn, assistant city attorney, copies of two emails to deliver to the newspaper. 

The Messenger-Inquirer insisted that because she was an elected city official appointed to the board of health, all records Nunley possessed on the matter should be subject to an Open Records request. Nunley, per the hospital's attorneys, replied that only emails regarding city matters were subject to a request. 

In the newspaper's appeal to the attorney general, it argued that because Nunley is an appointed representative of the city, she owes a fiduciary duty to the city in her board capacity, thus making those records public records.

Nunley’s response was that the newspaper’s stance would erode the distinction between private and public entities, and all records of the private entity would be public one public official was involved with the private business.

The attorney general's opinion relied on Owensboro Med. Health Sys. v. Haynes, No. 11-CI-1476 (Daviess Cir Ct. July 25, 2012),  that Owensboro Health is not a public entity as described in KRS 61.870(1). Because a board member is a public official does not make the private entity public, as those positions are legally distinct. 

As Nunley gave the two emails she had possession of as a city commissioner, she fulfilled her duties under the Open Records Act, and she was not required to give records she received or sent in her capacity as a board member.