20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT DIVISION __ CIVIL ACTION NO. 20-CI-__________ AMERICAN OVERSIGHT PLAINTIFF v. OFFICE OF THE ATTORNEY GENERAL DEFENDANT Serve: Attorney General Daniel Cameron Office of the Attorney General Kentucky State Capitol 700 Capitol Avenue, Suite 118 Frankfort, KY 40601-3449 D0FEE447-1140-495B-9570-AAB16CD3924F : 000001 of 000058 Filed Plaintiff American Oversight, by and through counsel, brings this lawsuit under the Kentucky Open Records Act against the Office of the Attorney General to compel disclosure of improperly withheld public records concerning the Commonwealth’s Ballot Integrity Task Force. PARTIES, JURISDICTION, AND VENUE 1. American Oversight is a nonpartisan, non-profit section 501(c)(3) organization primarily engaged in disseminating information to the public. American Oversight is committed to promoting transparency in government, educating the public about government activities, and ensuring the accountability of government officials. Through research, federal Freedom of Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) COMPLAINT Information Act requests, and state Open Records Act requests, American Oversight uses the Commonwealth of Kentucky, about the activities and operations of federal and state governments through reports, published analyses, press releases, and other media. The organization is 1 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COM : 000001 of 000009 information it gathers, and its analysis of it, to educate the public, including residents of the 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk incorporated under the laws of the District of Columbia, and its principal office address is 1030 15th Street NW, B255, Washington, DC 20005. 2. The Office of the Attorney General (“Attorney General”) is the head of the Department of Law, an administrative agency of the Commonwealth of Kentucky created pursuant to KRS Chapter 15. The Office of the Attorney General is a “[p]ublic agency” within the meaning of KRS 61.870(1) and is located at 700 Capital Avenue, Suite 118, Frankfort, KY 40601-3449. 3. This action is brought pursuant to KRS 61.882 in order (a) to appeal the Attorney General’s denial in part or in whole of two Open Records requests submitted by American Oversight and the Attorney General’s subsequent decisions affirming those denials rendered D0FEE447-1140-495B-9570-AAB16CD3924F : 000002 of 000058 Filed to disclose public records in violation of the Kentucky Open Records Act. 4. Jurisdiction and venue are proper in this Court because the Attorney General is located in the Capitol building in Franklin County, Kentucky at 700 Capital Avenue, Suite 118, Frankfort, KY. Any records at issue are maintained by the Attorney General in its Frankfort offices. 5. This Court has proper subject matter jurisdiction pursuant to KRS 61.882(1). FACTS I. American Oversight Requests Records Pursuant to the Open Records Act. The Emails Request 6. Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) pursuant to 61.880(2), and (b) to obtain injunctive relief relating to the Attorney General’s refusal On May 28, 2020, Attorney General Daniel Cameron and Secretary of State monitor the 2020 primary election and investigate and deter vote fraud.” Miranda Combs, 2 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COM : 000002 of 000009 Michael Adams announced the formation of a Ballot Integrity Task Force, purportedly formed “to 09/22/2020 Amy Feldman, Franklin Circuit Clerk Secretary Adams and Attorney General Cameron Co-Chair Ballot Integrity Task Force, May 28, 2020. 1 7. On July 20, 2020, American Oversight submitted an Open Records request to the Attorney General bearing internal tracking number KY-AG-20-1785 seeking emails related to the Commonwealth’s Ballot Integrity Task Force. Exhibit 1 (the “Emails Request”). Specifically, the request sought the following: All email communications (including email messages, email attachments, and calendar invitations) sent or received by Attorney General Daniel Cameron, or anyone communicating on his behalf, such as an assistant or scheduler, concerning the activities of Kentucky’s Absentee Ballot Integrity Task Force or any issue within the purview of the task force. 8. American Oversight requested that the Attorney General provide all responsive records from May 1, 2020, to the date the search is conducted. Id. 9. American Oversight’s request included a list of search terms it believed were likely to yield responsive records and requested that the Attorney General employ these terms, at a minimum, in its search for responsive records. Id. The Agendas Request 10. D0FEE447-1140-495B-9570-AAB16CD3924F : 000003 of 000058 20-CI-00758 On July 20, 2020, American Oversight submitted an Open Records request to the Attorney General bearing internal tracking number KY-AG-20-1781 for records related to the formation and meetings of the Commonwealth’s Ballot Integrity Task Force. Exhibit 2 (the Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed [i.] 1 All records containing charters, by-laws, or other formation documents, policies, procedures, or reports in the possession of (or created, utilized, maintained, received, or distributed by) Kentucky’s Absentee Ballot Integrity Task Force. See https://kentucky.gov/Pages/Activity-stream.aspx?n=SOS&prId=315. 3 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COM : 000003 of 000009 “Agendas Request”). Specifically, this request sought the following: 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk [ii.] All records containing any agendas or minutes for any meetings held or planned by Kentucky’s Absentee Ballot Integrity Task Force. [iii.] All records reflecting the time, date, and location of any meetings held or planned by Kentucky’s Absentee Ballot Integrity Task Force, including meeting notices (internal or public) and calendar invitations and entries. With respect to calendar invitations or entries, to the extent that this information is aggregated and maintained on a single calendar, we would accept as responsive a printout from said calendar containing fields reflecting the location, date, and time of each meeting. [iv.] All transcripts and audio or video recordings of any meetings held by Kentucky’s Ballot Integrity Task Force. 11. American Oversight requested that the Attorney General provide all responsive records from May 1, 2020, to the date the search is conducted. The Attorney General Denies American Oversight’s Requests in Full or in Part. The Emails Request: Denied in Full 12. By email dated July 30, 2020, the Attorney General denied the Emails Request in full, citing KRS 61.878(1)(h), (i), and (j). Exhibit 3. 13. Stating that the requested documents “relate to the Attorney General’s power to investigate and prosecute election law violations,” the Attorney General concluded that the records are “exempt from disclosure pursuant to KRS 61.878(1)(h),” (the “Law Enforcement Exemption”), which protects law enforcement agency records “that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure would harm the agency . . . by Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) II. D0FEE447-1140-495B-9570-AAB16CD3924F : 000004 of 000058 Filed premature release of information to be used in a prospective law enforcement action or 14. Additionally, the Attorney General asserted that “[r]ecords related to meetings and calendar invitations and entries are exempt under KRS 61.878(i) and (j)” (the “Preliminary Draft Exemption”), which “exempts from disclosure ‘[p]reliminary drafts . . . notes . . . [p]reliminary 4 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COM : 000004 of 000009 administrative adjudication.” Exhibit 3. 09/22/2020 Amy Feldman, Franklin Circuit Clerk recommendations, and preliminary memoranda in which opinions are expressed or policies formulated and recommended.’” Exhibit 3. 15. The Attorney General also stated that “the Office is not disclosing records containing a preliminary draft and recommendations in which opinions are expressed or policies formulated or recommended because those records are exempt from disclosure under KRS 61.878(1)(i) and (j). These records comprise internal discussions and a draft related to election law matters.” Exhibit 3. 16. Finally, the Attorney General “advise[d] that the Kentucky Secretary of State may have custody or control of the public records requested.” Id. 17. D0FEE447-1140-495B-9570-AAB16CD3924F : 000005 of 000058 20-CI-00758 The Attorney General’s response violated the Open Records Act in numerous respects, including that it (a) purported to claim that a blanket nondisclosure of the requested records is permissible despite Kentucky Supreme Court precedent to the contrary; (b) relied on the Attorney General’s power to investigate and prosecute election law violations to invoke the Law Enforcement Exemption, without clarifying whether the Ballot Integrity Task Force’s functions are truly prosecutorial in nature, and without even identifying a prospective law enforcement action as required for the Law Enforcement Exemption to apply; (c) knowingly mischaracterized American Oversight’s records request and the scope of the exemptions claimed, which are narrower than the Attorney General suggests; (d) failed to segregate non-exempt information from Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed any properly exempt materials and release the non-exempt portions; and (e) directed American obligation to make its own determinations with respect to any records within its custody. 5 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COM : 000005 of 000009 Oversight to request records from another agency, despite the Attorney General’s clear legal 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk The Agendas Request: Denied in Part and Granted in Part 18. Also by email dated July 30, 2020, the Attorney General responded to the Agendas Request, denying the request in part and granting the request in part. Exhibit 4. 19. As with the Emails Request, the Attorney General denied Item [iii.] of the Agendas Request (which sought, generally, “[a]ll records reflecting the time, date, and location of any meetings held or planned” by the Task Force, Exhibit 2), stating that “records related to meetings and calendar invitations” are “exempt under KRS 61.878(1)(i) and (j)” and reiterating its position that public officials’ calendars are “preliminary drafts” exempt from disclosure. Exhibit 4. 20. Additionally, in response to Items [i.] and [iv.] of the Agendas Request, the D0FEE447-1140-495B-9570-AAB16CD3924F : 000006 of 000058 Filed the Office of the Secretary of State might have custody of those records. Id. 21. However, in response to Item [ii.] of the Agendas Request, the Attorney General released one page of records, an Agenda for a May 19, 2020 meeting of the Ballot Integrity Task Force. Id. This is the sole record disclosed by the Attorney General in response to American Oversight’s two requests made pursuant to the Open Records Act. 22. American Oversight has submitted separate requests for the same categories of records to the Kentucky Secretary of State, which has provided, in relevant part, Agendas for May 27, 2020 and June 18, 2020 meetings of the Ballot Integrity Task Force. Exhibit 5. Notably, Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Attorney General stated that it did not possess records responsive to the request and advised that although the Attorney General appears on these agendas, the Attorney General’s office did not 23. The Attorney General’s response violated the Open Records Act in numerous respects, including that it (a) purported to claim that a blanket nondisclosure of records responsive to Item [iii.] of the request is permissible despite Kentucky Supreme Court precedent to the 6 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COM : 000006 of 000009 produce these agendas in response to American Oversight’s Agendas Request. See Exhibit 4. 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk contrary; (b) mischaracterized American Oversight’s records request and the scope of the exemptions claimed, which demonstrably are narrower than the Attorney General suggests; (c) failed to segregate non-exempt information from any properly exempt materials and release the non-exempt portions; and (d) directed American Oversight to request records from another agency, despite the Attorney General’s legal obligation to make its own determinations with respect to any records within its custody. III. American Oversight’s Complaint Pursuant to KRS § 61.880(2). 24. By letter dated August 14, 2020, American Oversight submitted a complaint to the Attorney General pursuant to KRS 61.880(2), objecting to the Attorney General’s denials in full D0FEE447-1140-495B-9570-AAB16CD3924F : 000007 of 000058 Filed claimed that the Attorney General’s blanket invocation of the Law Enforcement and Preliminary Drafts Exemptions was overbroad. Specifically, the Attorney General failed to meet its burden under City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), to establish the necessary elements of the exemption. Moreover, American Oversight pointed out that it is unlikely that every document in the Attorney General’s possession regarding the Task Force is protected by the Law Enforcement Exemption. Further, American Oversight’s requests were not as limited as the Attorney General alleged. Id. 25. By letter dated September 1, 2020, the Attorney General responded to American Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) and in part to the Emails and Agendas Requests. Exhibit 6 (the “complaint”). American Oversight Oversight’s complaint, upholding the full and partial denials of the Emails and Agendas Requests. 26. By letter dated September 15, 2020, the Attorney General further responded, issuing an Open Records Decision upholding the full and partial denials of the Emails and Agendas Requests. Exhibit 8. 7 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COM : 000007 of 000009 Exhibit 7. 20-CI-00758 27. 09/22/2020 Amy Feldman, Franklin Circuit Clerk For reasons including, but not limited to, those listed above and those identified in American Oversight’s complaint, the full and partial denials of American Oversight’s requests by the Attorney General violated the Open Records Act. COUNT I – VIOLATION OF OPEN RECORDS ACT 28. American Oversight hereby incorporates and restates the allegations set forth in paragraphs 1 through 27 of this Complaint. 29. Under Kentucky law, American Oversight is entitled to disclosure of non-exempt records and non-exempt portions of records responsive to its requests, including email communications and meeting notices related to the Commonwealth’s Ballot Integrity Task Force. D0FEE447-1140-495B-9570-AAB16CD3924F : 000008 of 000058 Filed 30. The Attorney General willfully violated the Open Records Act by inappropriately exempting and withholding from disclosure records responsive to American Oversight’s Open Records requests, including through its improper blanket application of certain exemptions. 31. The Attorney General willfully violated the Open Records Act by citing inapplicable exemptions to justify withholding records. 32. The Attorney General willfully violated the Open Records Act by failing to segregate and release non-exempt information from the records it withheld. 33. Pursuant to KRS 61.880(5)(a) and KRS 61.882(3), American Oversight is entitled Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) KRS 61.870 et seq. to seek injunctive and other relief from the Attorney General’s actions with respect to its Open 34. Pursuant to KRS 61.882(4), this action should take precedence on this Court’s docket over all other causes and should be assigned for hearing or trial at the earliest practicable date. 8 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk COM : 000008 of 000009 Records requests. 35. 09/22/2020 Amy Feldman, Franklin Circuit Clerk Pursuant to KRS 61.882(5), American Oversight is entitled to recover its costs, reasonable attorneys’ fees from this lawsuit, and statutory penalties because the Attorney General has willfully withheld the requested records in violation of the Open Records Act. WHEREFORE, American Oversight respectfully requests the following relief: 1. An expedited briefing schedule and hearing on this matter at the earliest practicable date; 2. An injunction ordering the Attorney General to disclose the requested records; 3. An award to American Oversight of its costs, including reasonable attorneys’ fees, in connection with this matter pursuant to KRS 61.882(5); 4. An award to American Oversight of statutory penalties pursuant to KRS 61.882(5); and 5. All other relief to which American Oversight may be entitled. Respectfully submitted, COM : 000009 of 000009 /s/ Randal A. Strobo Randal A. Strobo, KBA #92767 Clay A. Barkley, KBA #93635 Strobo Barkley PLLC 239 South Fifth Street, Suite 917 Louisville, Kentucky 40202 (502) 290-9751 rstrobo@strobobarkley.com cbarkley@strobobarkley.com Counsel for Plaintiff D0FEE447-1140-495B-9570-AAB16CD3924F : 000009 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed 9 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000001 of 000006 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Exhibit 1 D0FEE447-1140-495B-9570-AAB16CD3924F : 000010 of 000058 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk July 20, 2020 VIA ELECTRONIC MAIL Office of the Attorney General 700 Capital Avenue, Suite 118 Frankfort, Kentucky 40601-3449 KyOAGOR@ky.gov Re: Open Records Act Request Dear Records Custodian: Pursuant to the Kentucky Open Records Act (KORA), KRS § 61.870 et seq., and the Kentucky Open Meetings Act, KRS § 61.800 et seq., American Oversight makes the following request for records. D0FEE447-1140-495B-9570-AAB16CD3924F : 000011 of 000058 Filed All email communications (including email messages, email attachments, and calendar invitations) sent or received by Attorney General Daniel Cameron, or anyone communicating on his behalf, such as an assistant or scheduler, concerning the activities of Kentucky’s Absentee Ballot Integrity Task Force or any issue within the purview of the task force. For this request, American Oversight believes that records containing the terms below are likely to be responsive records, and requests that your office, at a minimum, employ these search terms to identify responsive records. Search Terms: • “Ballot Fraud” • “Fraud task force” • “Election fraud” • “Voter fraud” • “Voting fraud” • “Absentee fraud” • “Mail fraud” • “Ballot integrity” • “Election integrity” • “Voter integrity” • “Absentee integrity” Filed • • • • • • • • • • • Harvesting “Signature match” “Signature matches” “Signatures match” “Signature matching” “Election manipulation” “Election tampering” “Vote rigging” “Ballot stuffing” “Ballot destruction” “Voter impersonation” 1030 15th Street NW, Suite B255, Washington, 20005 Franklin AmericanOversight.org 20-CI-00758 09/22/2020 AmyDC Feldman, Circuit Clerk EXH : 000002 of 000006 American Oversight requests that your office produce copies of the following records within three business days: Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Requested Records 09/22/2020 Amy Feldman, Franklin Circuit Clerk Please provide all responsive records from May 1, 2020, to the date the search is conducted. Pursuant to KRS § 61.880(1), American Oversight requests that you notify us within three workdays as to whether you will comply with this request. Statement of Noncommercial Purpose This request is for noncommercial purposes, and American Oversight respectfully requests a waiver of any fees associated with processing this request for records. To the extent any fees are charged, pursuant to KRS § 61.874(3), American Oversight asks that such fees be limited to the actual cost of reproduction and exclude the cost of agency staff time. This request is primarily and fundamentally for non-commercial purposes. American Oversight seeks the records requested to inform the public regarding Kentucky’s efforts to prosecute and publicize instances of election fraud. Claims of widespread election fraud are of significant public interest both in Kentucky and nationwide.1 Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including what specific steps Kentucky’s Ballot Integrity Task Force has taken or intends to take in order to support ballot integrity. Furthermore, as a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.2 American Oversight has also demonstrated its commitment to the public disclosure of documents and creation of editorial content through numerous substantive analyses posted to its website.3 Examples reflecting this commitment to the public disclosure of documents and the creation of editorial content include the posting of records related to See, e.g. Daniel Desrochers, Group’s Claims of Irregularities in Kentucky Governor Election Quickly Debunked, Lexington Herald-Leader (Nov. 13, 2019, 5:54 PM), https://www.kentucky.com/news/politics-government/article237320779.html. 2 American Oversight currently has approximately 15,500 followers on Facebook and 104,200 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited July 8, 2020); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited July 8, 2020). 3 News, American Oversight, https://www.americanoversight.org/blog. D0FEE447-1140-495B-9570-AAB16CD3924F : 000012 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed Filed 20-CI-00758 09/22/2020 - 2 - Amy Feldman, Franklin CircuitKY-AG-20-1785 Clerk EXH : 000003 of 000006 1 Amy Feldman, Franklin Circuit Clerk the organization’s State Accountability Project, covering voting rights issues in various states;4 the posting of records related to an ethics waiver received by a senior Department of Justice attorney and an analysis of what those records demonstrated regarding the Department’s process for issuing such waivers;5 posting records received as part of American Oversight’s “Audit the Wall” project to gather and analyze information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border, and analyses of what those records reveal;6 posting records regarding potential self-dealing at the Department of Housing & Urban Development and related analysis;7 posting records and analysis relating to the federal government’s efforts to sell nuclear technology to Saudi Arabia;8 and posting records and analysis regarding the Department of Justice’s decision in response to demands from Congress to direct a U.S. Attorney to undertake a wide-ranging review and make recommendations regarding criminal investigations relating to the President’s political opponents and allegations of misconduct by the Department of Justice itself and the Federal Bureau of Investigation.9 Guidance Regarding the Search & Processing of Requested Records In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records: § Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, State Accountability Project, American Oversight, https://www.americanoversight.org/state-accountability-project. 5 DOJ Records Relating to Solicitor General Noel Francisco’s Recusal, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance; Francisco & the Travel Ban: What We Learned from the DOJ Documents, American Oversight, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learnedfrom-the-doj-documents. 6 See generally Audit the Wall, American Oversight, https://www.americanoversight.org/investigation/audit-the-wall; see, e.g., Border Wall Investigation Report: No Plans, No Funding, No Timeline, No Wall, American Oversight, https://www.americanoversight.org/border-wall-investigation-report-no-plans-nofunding-no-timeline-no-wall. 7 Documents Reveal Ben Carson Jr.’s Attempts to Use His Influence at HUD to Help His Business, American Oversight, https://www.americanoversight.org/documents-reveal-ben-carson-jrs-attempts-to-use-his-influence-at-hud-to-help-his-business. 8 Investigating the Trump Administration’s Efforts to Sell Nuclear Technology to Saudi Arabia, American Oversight, https://www.americanoversight.org/investigating-the-trumpadministrations-efforts-to-sell-nuclear-technology-to-saudi-arabia. 9 Sessions’ Letter Shows DOJ Acted on Trump’s Authoritarian Demand to Investigate Clinton, American Oversight, https://www.americanoversight.org/sessions-letter. 4 Filed 20-CI-00758 09/22/2020 Clerk - 3 - Amy Feldman, Franklin CircuitKY-AG-20-1785 D0FEE447-1140-495B-9570-AAB16CD3924F : 000013 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000004 of 000006 Filed 09/22/2020 Amy Feldman, Franklin Circuit Clerk including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack. § In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. § Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email. § Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages. § In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See KRS § 61.878(4). If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release. § Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records. D0FEE447-1140-495B-9570-AAB16CD3924F : 000014 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or Filed 20-CI-00758 09/22/2020 Clerk - 4 - Amy Feldman, Franklin CircuitKY-AG-20-1785 EXH : 000005 of 000006 Conclusion 09/22/2020 Amy Feldman, Franklin Circuit Clerk duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis. We share a common mission to promote transparency in government. American Oversight looks forward to working with you on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Khahilia Shaw at records@americanoversight.org or 202.539.6507. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, EXH : 000006 of 000006 Austin R. Evers Executive Director American Oversight D0FEE447-1140-495B-9570-AAB16CD3924F : 000015 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed Filed 20-CI-00758 09/22/2020 Clerk - 5 - Amy Feldman, Franklin CircuitKY-AG-20-1785 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000001 of 000006 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Exhibit 2 D0FEE447-1140-495B-9570-AAB16CD3924F : 000016 of 000058 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Amy Feldman, Franklin Circuit Clerk July 20, 2020 VIA ELECTRONIC MAIL Office of the Attorney General 700 Capital Avenue, Suite 118 Frankfort, Kentucky 40601-3449 KyOAGOR@ky.gov Re: Open Records Act Request Dear Records Custodian: Pursuant to the Kentucky Open Records Act (KORA), KRS § 61.870 et seq., and the Kentucky Open Meetings Act, KRS § 61.800 et seq., American Oversight makes the following request for records. Requested Records American Oversight requests that your office produce copies of the following records within three business days: 1. All records containing charters, by-laws, or other formation documents, policies, procedures, or reports in the possession of (or created, utilized, maintained, received, or distributed by) Kentucky’s Absentee Ballot Integrity Task Force. 2. All records containing any agendas or minutes for any meetings held or planned by Kentucky’s Absentee Ballot Integrity Task Force. 3. All records reflecting the time, date, and location of any meetings held or planned by Kentucky’s Absentee Ballot Integrity Task Force, including meeting notices (internal or public) and calendar invitations and entries. With respect to calendar invitations or entries, to the extent that this information is aggregated and maintained on a single calendar, we would accept as responsive a printout from said calendar containing fields reflecting the location, date, and time of each meeting. 4. All transcripts and audio or video recordings of any meetings held by Kentucky’s Ballot Integrity Task Force. Please provide all responsive records from May 1, 2020, to the date the search is conducted. Filed 1030 15th Street NW, Suite B255, Washington, 20005 Franklin AmericanOversight.org 20-CI-00758 09/22/2020 AmyDC Feldman, Circuit Clerk D0FEE447-1140-495B-9570-AAB16CD3924F : 000017 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000002 of 000006 Filed 09/22/2020 Amy Feldman, Franklin Circuit Clerk Pursuant to KRS § 61.880(1), American Oversight requests that you notify us within three workdays as to whether you will comply with this request. Statement of Noncommercial Purpose This request is for noncommercial purposes, and American Oversight respectfully requests a waiver of any fees associated with processing this request for records. To the extent any fees are charged, pursuant to KRS § 61.874(3), American Oversight asks that such fees be limited to the actual cost of reproduction and exclude the cost of agency staff time. This request is primarily and fundamentally for non-commercial purposes. American Oversight seeks the records requested to inform the public regarding Kentucky’s efforts to prosecute and publicize instances of election fraud. Claims of widespread election fraud are of significant public interest both in Kentucky and nationwide.1 Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including what specific steps Kentucky’s Ballot Integrity Task Force has taken or intends to take in order to support ballot integrity. Furthermore, as a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.2 American Oversight has also demonstrated its commitment to the public disclosure of documents and creation of editorial content through numerous substantive analyses posted to its website.3 Examples reflecting this commitment to the public disclosure of documents and the creation of editorial content include the posting of records related to the organization’s State Accountability Project, covering voting rights issues in various See, e.g. Daniel Desrochers, Group’s Claims of Irregularities in Kentucky Governor Election Quickly Debunked, Lexington Herald-Leader (Nov. 13, 2019, 5:54 PM), https://www.kentucky.com/news/politics-government/article237320779.html. 2 American Oversight currently has approximately 15,500 followers on Facebook and 104,200 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited July 8, 2020); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited July 8, 2020). 3 News, American Oversight, https://www.americanoversight.org/blog. D0FEE447-1140-495B-9570-AAB16CD3924F : 000018 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed Filed 20-CI-00758 09/22/2020 Clerk - 2 - Amy Feldman, Franklin CircuitKY-AG-20-1781 EXH : 000003 of 000006 1 Amy Feldman, Franklin Circuit Clerk states;4 the posting of records related to an ethics waiver received by a senior Department of Justice attorney and an analysis of what those records demonstrated regarding the Department’s process for issuing such waivers;5 posting records received as part of American Oversight’s “Audit the Wall” project to gather and analyze information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border, and analyses of what those records reveal;6 posting records regarding potential self-dealing at the Department of Housing & Urban Development and related analysis;7 posting records and analysis relating to the federal government’s efforts to sell nuclear technology to Saudi Arabia;8 and posting records and analysis regarding the Department of Justice’s decision in response to demands from Congress to direct a U.S. Attorney to undertake a wide-ranging review and make recommendations regarding criminal investigations relating to the President’s political opponents and allegations of misconduct by the Department of Justice itself and the Federal Bureau of Investigation.9 Guidance Regarding the Search & Processing of Requested Records In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records: § Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on State Accountability Project, American Oversight, https://www.americanoversight.org/state-accountability-project. 5 DOJ Records Relating to Solicitor General Noel Francisco’s Recusal, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance; Francisco & the Travel Ban: What We Learned from the DOJ Documents, American Oversight, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learnedfrom-the-doj-documents. 6 See generally Audit the Wall, American Oversight, https://www.americanoversight.org/investigation/audit-the-wall; see, e.g., Border Wall Investigation Report: No Plans, No Funding, No Timeline, No Wall, American Oversight, https://www.americanoversight.org/border-wall-investigation-report-no-plans-nofunding-no-timeline-no-wall. 7 Documents Reveal Ben Carson Jr.’s Attempts to Use His Influence at HUD to Help His Business, American Oversight, https://www.americanoversight.org/documents-reveal-ben-carson-jrs-attempts-to-use-his-influence-at-hud-to-help-his-business. 8 Investigating the Trump Administration’s Efforts to Sell Nuclear Technology to Saudi Arabia, American Oversight, https://www.americanoversight.org/investigating-the-trumpadministrations-efforts-to-sell-nuclear-technology-to-saudi-arabia. 9 Sessions’ Letter Shows DOJ Acted on Trump’s Authoritarian Demand to Investigate Clinton, American Oversight, https://www.americanoversight.org/sessions-letter. 4 Filed 20-CI-00758 09/22/2020 Clerk - 3 - Amy Feldman, Franklin CircuitKY-AG-20-1781 D0FEE447-1140-495B-9570-AAB16CD3924F : 000019 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000004 of 000006 Filed 09/22/2020 Amy Feldman, Franklin Circuit Clerk hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack. § In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. § Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email. § Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages. § In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See KRS § 61.878(4). If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release. § Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records. D0FEE447-1140-495B-9570-AAB16CD3924F : 000020 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future. Filed 20-CI-00758 09/22/2020 Clerk - 4 - Amy Feldman, Franklin CircuitKY-AG-20-1781 EXH : 000005 of 000006 Conclusion 09/22/2020 Amy Feldman, Franklin Circuit Clerk Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis. We share a common mission to promote transparency in government. American Oversight looks forward to working with you on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Khahilia Shaw at records@americanoversight.org or 202.539.6507. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, EXH : 000006 of 000006 Austin R. Evers Executive Director American Oversight D0FEE447-1140-495B-9570-AAB16CD3924F : 000021 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed Filed 20-CI-00758 09/22/2020 Clerk - 5 - Amy Feldman, Franklin CircuitKY-AG-20-1781 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000001 of 000006 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Exhibit 3 D0FEE447-1140-495B-9570-AAB16CD3924F : 000022 of 000058 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXTERNAL SENDER Dear Mr. Evers: This letter shall constitute the response to the open records request you submitted to the Office of the Attorney General (the “Office”) pursuant to the Kentucky Open Records Act, KRS 61.870 to 61.884. The Office received your request on July 20, 2020. Therefore, this response complies with Senate Bill 150, which extended the response time for open records requests to 10 days during the state of emergency declared by the Governor in response to the COVID-19 pandemic. 2020 Ky. Acts ch 73 § 1(8)(a). You requested copies of the following: All email communications (including email messages, email attachments, and calendar invitations) sent or received by Attorney General Daniel Cameron, or anyone communicating on his behalf, such as an assistant or scheduler, concerning the activities of Kentucky’s Absentee Ballot Integrity Task Force or any issue within the purview of the task force. You then asked the Office to employ the following search terms to identify responsive records: Search Terms: “Ballot Fraud” “Fraud task force” “Voter fraud” “Voting fraud” “Absentee fraud” “Mail fraud” “Ballot integrity” “Election integrity” “Voter integrity” “Absentee integrity” EXH : 000002 of 000006 · · · · · · · · · · Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Subject: RE: Open Records Act Request (KY-AG-20-1785) Date: Thursday, July 30, 2020 at 6:32:58 PM Eastern Daylight Time From: English, Chaz (KYOAG) To: AO Records AFachments: image001.png, image002.png D0FEE447-1140-495B-9570-AAB16CD3924F : 000023 of 000058 Thursday, September 10, 2020 at 6:44:09 PM Eastern Daylight Time Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Page 1 of 4 · · · · · · · · · · · 09/22/2020 Amy Feldman, Franklin Circuit Clerk Harvesting “Signature match” “Signature matches” “Signatures match” “Signature matching” “Election manipulation” “Election tampering” “Vote rigging” “Ballot stuffing” “Ballot destruction” “Voter impersonation” The Office is denying your request under KRS 61.878(1)(h), (i), and (j). KRS 15.243 tasks the Attorney General with enforcing “all of the state’s election laws by civil or criminal processes.” Among other duties, the Attorney General shall “[i]nitiate investigations or investigate alleged violations of election laws at the request of a registered voter or on his own motion.” Id. at (2) (d). Furthermore, the Attorney General possesses “jurisdiction, concurrent with that of county and Commonwealth’s attorneys, to investigate and prosecute violations of the election laws.” KRS 15.242. Because the records you requested relate to the Attorney General’s power to investigate and prosecute election law violations, they are exempt from disclosure pursuant to KRS 61.878(1)(h). Specifically, KRS 61.878(1)(h) provides, “Records of law enforcement agencies . . . that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency . . . by premature release of information to be used in a prospective law enforcement action or administrative adjudication.” The premature release of information in these records would harm the Office’s ability to prosecute potential cases. For instance, the identification of names and descriptions of complaints, attorney-client privileged information, or attorney work-product could lead to the corruption and manipulation of evidence, whether through direct contact by others, or by influencing potential complainants or witnesses to tailor their responses after they learn about the types of matters that have been raised or not raised, or by the loss of independent recollection of potential witnesses. Further, the release of internal memoranda and meetings regarding these complaints may potentially reveal legal theories to the subjects of the complaints. EXH : 000003 of 000006 Records related to meetings and calendar invitations and entries are exempt from disclosure under KRS 61.878(i) and (j). Specifically, KRS 61.878(i) and (j) exempts from disclosure “[p]reliminary drafts . . . notes . . . [p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.” Following the D0FEE447-1140-495B-9570-AAB16CD3924F : 000024 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Page 2 of 4 09/22/2020 Amy Feldman, Franklin Circuit Clerk Kentucky Court of Appeal’s reasoning in Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995), this Office has routinely found that public officials’ calendars, schedules, and itineraries are exempt from disclosure, see 05-ORD-018, and that “preliminary records that form the basis of those documents can be withheld.” 08-ORD-217, p. 6. In Jones, the Court held that thenGovernor Brereton Jones' appointment schedule was “nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness; and all of which should be free from media interference.” 895 S.W.2d at 10; See 08-ORD-217; 16-ORD-039. In adopting the logic of Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991), the Jones Court made no distinction as to past schedules: Moreover, the risks of disclosure outline [sic] above apply in many cases regardless of whether the meetings are past or future. Participants may be chilled and discouraged by the knowledge that a meeting will routinely be disclosed, and executive judgments in ongoing policy matters may be prematurely revealed. 895 S.W.2d at 9. (quoting Times Mirror Co., 53 Cal. 3d at 1344). Similarly, in OAG 78-626, the Office of the Attorney General held that a mayor's appointment calendar was properly withheld under authority of what is now codified as KRS 61.878(1)(i), and in OAG 84-342, the Office of the Attorney General found that a public official's calendar, and that of his secretary, were protected from disclosure under KRS 61.878(1)(a), (i), (j), and OAG 78-626. Moreover, the Office is not disclosing records containing a preliminary draft and recommendations in which opinions are expressed or policies formulated or recommended because those records are exempt from disclosure under KRS 61.878(1)(i) and (j). These records comprise internal discussions and a draft related to election law matters. As such, they are exempt from disclosure. Pursuant to KRS 61.872(4), the Office advises that the Kentucky Secretary of State may have custody or control of the public records requested. The Secretary of State’s website provides the following information related to submitting open records requests: EXH : 000004 of 000006 Pursuant to KRS 61.870 to 61.884, the public is notified that, as provided herein, the public records of the above named Agency of the Commonwealth of Kentucky are open for inspection by any person on written request to Jennifer Scutchfield, Assistant Secretary of State, official custodian of the public records of the Office of Kentucky Secretary of State, whose address is 700 Capital Avenue, Frankfort, KY 40601 from 8 a.m. to 4:30 p.m., Monday through Friday, each week, except holidays. Written requests are accepted by in person request, mail, facsimile (502-564-5687) and email (jscutchfield@ky.gov). D0FEE447-1140-495B-9570-AAB16CD3924F : 000025 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Page 3 of 4 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Applicants for the inspection of public records shall be advised of the availability of the records requested for inspection, and shall be notified in writing not later than three (3) [ten (10) days during state of emergency] working days after receipt of an application for inspection of any reason the records requested are not available for public inspection. Copies of written material in the public records of this agency shall be furnished to any person requesting them on payment of a fee of ten (10) cents a page; copies of nonwritten records (photographs, maps, material stored in computer files or libraries, etc.) shall be furnished on request, on payment of a charge equal to the actual cost of producing copies of such records by the most economic process not likely to damage or alter the record. This office will endeavor to accommodate requests for electronic records. If you wish to appeal this decision, you may do so by filing a complaint with the Attorney General’s Office, Open Records/Open Meetings Division, The Capitol, 700 Capital Avenue, Suite 118, Frankfort, KY 40601, pursuant to KRS 61.880(2), or by filing an original civil action in the appropriate circuit court under KRS 61.882. If you first appeal to the Attorney General but are dissatisfied with the Attorney General’s decision, you may further appeal to circuit court pursuant to KRS 61.880(5). D0FEE447-1140-495B-9570-AAB16CD3924F : 000026 of 000058 Filed Charles A. English Assistant Attorney General Open Records Custodian Office of Civil & Environmental Law Kentucky Office of Attorney General 700 Capital Avenue Suite 118 Frankfort, KY 40601 Phone (502) 696-5340 Fax chaz.english@ky.gov Follow the Attorney General’s Office @KYOAG From: AO Records Sent: Monday, July 20, 2020 12:35 PM To: KYOAG Open Records Subject: Open Records Act Request (KY-AG-20-1785) **CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT Service Desk ServiceCorrespondence@ky.gov for any assistance. Dear Records Custodian: Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Sincerely, Please find aZached a request for records under Kentucky’s Open Records Act. Sincerely, EXH : 000005 of 000006 Sarah Wishingrad Paralegal American Oversight records@americanoversight.org www.americanoversight.org @weareoversight ORR: KY-AG-20-1785 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Page 4 of 4 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000006 of 000006 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000027 of 000058 Filed Page 5 of 4 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000001 of 000005 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Exhibit 4 D0FEE447-1140-495B-9570-AAB16CD3924F : 000028 of 000058 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Subject: RE: Open Records Act Request (KY-AG-20-1781) Date: Thursday, July 30, 2020 at 6:33:01 PM Eastern Daylight Time From: English, Chaz (KYOAG) To: AO Records AGachments: image001.png, image002.png, Agenda 5.19.2020.docx EXTERNAL SENDER Dear Mr. Evers: This letter shall constitute the response to the open records request you submitted to the Office of the Attorney General (the “Office”) pursuant to the Kentucky Open Records Act, KRS 61.870 to 61.884. The Office received your request on July 20, 2020. Therefore, this response complies with Senate Bill 150, which extended the response time for open records requests to 10 days during the state of emergency declared by the Governor in response to the COVID-19 pandemic. 2020 Ky. Acts ch 73 § 1(8)(a). You requested copies of the following: 1. All records containing charters, by-laws, or other formation documents, policies, procedures, or reports D0FEE447-1140-495B-9570-AAB16CD3924F : 000029 of 000058 Friday, September 11, 2020 at 12:48:39 PM Eastern Daylight Time 2. All records containing any agendas or minutes for any meetings held or planned by Kentucky’s Absentee Ballot Integrity Task Force. 3. All records reflecting the time, date, and location of any meetings held or planned by Kentucky’s Absentee Ballot Integrity Task Force, including meeting notices (internal or public) and calendar invitations and entries. With respect to calendar invitations or entries, to the extent that this information is aggregated and maintained on a single calendar, we would accept as responsive a printout from said calendar containing fields reflecting the location, date, and time of each meeting. 4. All transcripts and audio or video recordings After a diligent search, the Office does not possess any records related to requests #1 and #4. Pursuant to KRS 61.872(4), the Office advises that the Kentucky Secretary of State may have custody or control of the public records requested. The Secretary of State’s website provides the following information related to submitting open records requests: Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) in the possession of (or created, utilized, maintained, received, or distributed by) Kentucky’s Absentee Ballot Integrity Task Force. EXH : 000002 of 000005 Pursuant to KRS 61.870 to 61.884, the public is notified that, as provided herein, the public records of the above named Agency of the Commonwealth of Kentucky are open for inspection by any person on written request to Jennifer Scutchfield, Assistant Secretary of State, official custodian of the public Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Page 1 of 3 09/22/2020 Amy Feldman, Franklin Circuit Clerk records of the Office of Kentucky Secretary of State, whose address is 700 Capital Avenue, Frankfort, KY 40601 from 8 a.m. to 4:30 p.m., Monday through Friday, each week, except holidays. Written requests are accepted by in person request, mail, facsimile (502-564-5687) and email (jscutchfield@ky.gov). Applicants for the inspection of public records shall be advised of the availability of the records requested for inspection, and shall be notified in writing not later than three (3) [ten (10) days during state of emergency] working days after receipt of an application for inspection of any reason the records requested are not available for public inspection. Copies of written material in the public records of this agency shall be furnished to any person requesting them on payment of a fee of ten (10) cents a page; copies of nonwritten records (photographs, maps, material stored in computer files or libraries, etc.) shall be furnished on request, on payment of a charge equal to the actual cost of producing copies of such records by the most economic process not likely to damage or alter the record. This office will endeavor to accommodate requests for electronic records. Nevertheless, the Office does possess records related to request #2. These records are attached to this response. As it relates to request #3, the Office is denying your request for records related to meetings and calendar invitations and entries because they are exempt under KRS 61.878(1)(i) and (j). Following the Kentucky Court of Appeal’s reasoning in Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995), this Office has routinely found that public officials’ calendars, schedules, and itineraries are exempt from disclosure, see 05-ORD-018, and that “preliminary records that form the basis of those documents can be withheld.” 08-ORD-217, p. 6. In Jones, the Court held that then-Governor Brereton Jones' appointment schedule was “nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness; and all of which should be free from media interference.” 895 S.W.2d at 10; See 08-ORD-217; 16-ORD-039. In adopting the logic of Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991), the Jones Court made no distinction as to past schedules: Moreover, the risks of disclosure outline [sic] above apply in many cases regardless of whether the meetings are past or future. Participants may be chilled and discouraged by the knowledge that a meeting will routinely be disclosed, and executive judgments in ongoing policy matters may be prematurely revealed. 895 S.W.2d at 9. (quoting Times Mirror Co., 53 Cal. 3d at 1344). Similarly, in OAG 78-626, the Office of the Attorney General held that a mayor's appointment calendar was properly withheld under authority of what is now codified as KRS 61.878(1)(i), and in OAG 84-342, the Office of the Attorney General found that a public official's calendar, and that of his secretary, were protected from disclosure under KRS 61.878(1)(a), (i), (j), and OAG 78-626. D0FEE447-1140-495B-9570-AAB16CD3924F : 000030 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed EXH : 000003 of 000005 If you wish to appeal this decision, you may do so by filing a complaint with the Attorney General’s Office, Open Records/Open Meetings Division, The Capitol, 700 Capital Avenue, Suite 118, Frankfort, KY 40601, Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Page 2 of 3 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk pursuant to KRS 61.880(2), or by filing an original civil action in the appropriate circuit court under KRS 61.882. If you first appeal to the Attorney General but are dissatisfied with the Attorney General’s decision, you may further appeal to circuit court pursuant to KRS 61.880(5). Sincerely, Charles A. English Assistant Attorney General Open Records Custodian Office of Civil & Environmental Law Kentucky Office of Attorney General 700 Capital Avenue Suite 118 Frankfort, KY 40601 Phone (502) 696-5340 Fax chaz.english@ky.gov Follow the Attorney General’s Office @KYOAG From: AO Records Sent: Monday, July 20, 2020 12:32 PM To: KYOAG Open Records Subject: Open Records Act Request (KY-AG-20-1781) **CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT Service Desk ServiceCorrespondence@ky.gov for any assistance. D0FEE447-1140-495B-9570-AAB16CD3924F : 000031 of 000058 Filed Dear Records Custodian: Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Please find a]ached a request for records under Kentucky’s Open Records Act. Sincerely, Sarah Wishingrad Paralegal American Oversight records@americanoversight.org www.americanoversight.org @weareoversight EXH : 000004 of 000005 ORR: KY-AG-20-1781 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Page 3 of 3 09/22/2020 Amy Feldman, Franklin Circuit Clerk AGENDA 2020 Primary Election Ballot Integrity Task Force Meeting May 19, 2020 2 p.m. Skype Secretary of State Michael G. Adams & Attorney General Daniel Cameron: - Welcome/Call to Order Purpose of Task Force Changes for the 2020 Primary Election Introduction of members and guests Agency Reports: - Kentucky State Board of Elections United States Attorney’s Office, Eastern District United States Attorney’s Office, Western District US Department of Homeland Security Federal Bureau of Investigation Kentucky Army National Guard United States Postal Service Kentucky State Police Kentucky Office of Homeland Security Schedule Next Meeting EXH : 000005 of 000005 Adjournment D0FEE447-1140-495B-9570-AAB16CD3924F : 000032 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000001 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Exhibit 5 D0FEE447-1140-495B-9570-AAB16CD3924F : 000033 of 000058 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000002 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000034 of 000058 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000003 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000035 of 000058 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000004 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000036 of 000058 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000005 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000037 of 000058 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000006 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000038 of 000058 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000007 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000039 of 000058 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000008 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000040 of 000058 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000009 of 000009 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) D0FEE447-1140-495B-9570-AAB16CD3924F : 000041 of 000058 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000001 of 000004 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Exhibit 6 D0FEE447-1140-495B-9570-AAB16CD3924F : 000042 of 000058 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Amy Feldman, Franklin Circuit Clerk August 14, 2020 VIA EMAIL: KYOAGOR@ky.gov Attorney General’s Office Open Records/Open Meetings Division The Capitol 700 Capital Avenue, Suite 118 Frankfort, KY 40601 Re: Open Records Act Denials Complaint Dear Open Records/Open Meetings Division: Pursuant to the Kentucky Open Records Act, K.R.S. § 61.880(2), American Oversight submits the following complaint to the Office of the Attorney General. American Oversight asks that you review and reconsider the denials of two Open Records Act requests submitted July 20, 2020, and bearing internal tracking numbers KY-AG-20-1785 (Attachment 2) and KY-AG-20-1781 (Attachment 3). The first request was denied in full based on the Law Enforcement and Preliminary Drafts Exemptions and the second was denied in part based on the Preliminary Drafts Exemption. American Oversight’s Requests On July 20, 2020, American Oversight submitted two Open Records requests to the Office of the Attorney General seeking records related to Kentucky’s Absentee Ballot Integrity Task Force (the “Task Force”). Request KY-AG-20-1785 sought “email communications (including email messages, email attachments, and calendar invitations)” related to the Task Force, and Request KY-AG-201781 sought, in relevant part, records reflecting the time, date, and location of Task Force meetings (see Attachments 2–3). The Law Enforcement Exemption (K.R.S. § 61.878(1)(h)) Your office denied Request KY-AG-20-1785 in full, stating that emails related to the Task Force are exempt from disclosure because they “relate to AG’s power to investigate election law violations.” (See Attachment 4). As the Denial Letter notes, K.R.S. § 61.878(1)(h) exempts law enforcement agency records that “were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure would harm the agency by [. . .] premature release of information to be used in a prospective law enforcement action.” Your office’s blanket denial is overbroad. As the Kentucky Supreme Court made clear in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the mere possibility of a future law enforcement action is an insufficient basis for applying this exemption. See id. at 850. Instead, the agency has the burden to show “(1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in some articulable way.” Id. (emphasis added). Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk D0FEE447-1140-495B-9570-AAB16CD3924F : 000043 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000002 of 000004 Filed Amy Feldman, Franklin Circuit Clerk Assistant Attorney General Charles English August 14, 2020 Page 2 of 3 Further, the City of Fort Thomas court emphasized that agencies must articulate the way in which release of records would pose “a concrete risk of harm to the agency [which,] by definition, must be something more than a hypothetical or speculative concern.” Id. at 852 (emphasis added). Your office’s Denial Letter does not meet this burden. Instead, it invokes the general jurisdiction and power of the Attorney General to prosecute violations of election law but specifies neither (a) a prospective or contemplated law enforcement action nor (b) an articulable harm to the agency. The Task Force by definition includes actors outside the Attorney General’s office and includes entities that do not have purely law enforcement responsibilities. It is not credible that every document in the Attorney General’s possession regarding the Task Force qualifies as a document compiled for the purpose of detecting or investigating violations of law. As such, American Oversight requests that your office promptly produce all documents not covered by the Law Enforcement Exemption, and, with regard to documents over which you believe the Exemption applies, promptly supply the information necessary to invoke the Law Enforcement Exemption under the Open Records Act. The Preliminary Drafts Exemption (K.R.S. § 61.878(1)(i)-(j)) Additionally, your office invoked the Preliminary Drafts Exemption in justifying its denials of Request KY-AG-20-1785 and Item 3 of Request KY-AG-20-1781 (See Attachments 4-5). This exemption protects from disclosure preliminary drafts or recommendations “in which opinions are expressed or policies are formulated or recommended.” K.R.S. § 61.878(1)(i)-(j). As the Denial Letter notes, Kentucky case law and Office of the Attorney General Opinions have established that a public official’s calendars constitute preliminary drafts and are therefore exempt from the Open Records Act. Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995) (internal citations omitted) (designating the Governor’s appointment schedule as a draft); see also OAG 78-626, 05-Ord-018, 08ORD-217. Because neither of American Oversight’s requests primarily sought the calendars of a public official, the holding of Courier-Journal does not justify a blanket denial of these requests. Request KY-AG-20-1785 sought “[a]ll email communications (including email messages, email attachments, and calendar invitations) sent or received by Attorney General Cameron concerning the activities of the Absentee Ballot Integrity Task Force or any issue within the purview of the task force.” (See Attachment 2). As the request’s clear language indicates, American Oversight seeks primarily emails, which may include but are in no way limited to calendar invitations. Even if calendar invitations may be withheld, your office still must produce the remaining email communications, including messages or attachments. Similarly, Item 3 of Request KY-SOS-20 -1781 sought: All records reflecting the time, date, and location of any meetings held or planned by Kentucky’s Absentee Ballot Integrity Task Force, including meeting notices (internal or public) and calendar invitations and entries. With respect to calendar Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk D0FEE447-1140-495B-9570-AAB16CD3924F : 000044 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000003 of 000004 Filed 09/22/2020 Amy Feldman, Franklin Circuit Clerk Assistant Attorney General Charles English August 14, 2020 Page 3 of 3 invitations or entries, to the extent that this information is aggregated and maintained on a single calendar, we would accept as responsive a printout from said calendar containing fields reflecting the location, date, and time of each meeting. (See Attachment 3 (emphasis added)). Though Item 3 of this request included calendar invitations and entries, it also sought other records—such as internal meeting notices—related to the Task Force, which must be disclosed. The Preliminary Drafts Exemption, as interpreted by Courier-Journal, cannot be used to exempt from production records other than a public official’s calendars that are responsive to either of these two requests. Relatedly, your office has an obligation to separate non-exempt and exempt materials, including by redaction, and to produce all non-exempt records responsive to both requests. K.R.S. § 61.878(2)(4). For the reasons explained above, American Oversight requests that your office: 1. Release all non-exempt email communications, including messages or attachments, responsive to Request KY-AG-20-1785; 2. With respect to any records responsive to KY-AG-20-1785 withheld pursuant to the Law Enforcement Exemption, articulate the concrete enforcement action being contemplated and demonstrate more specifically the way in which disclosure would harm the agency; and 3. Release all non-exempt meeting records responsive to Item 3 of Request KY-AG-20-1785. Pursuant to K.R.S. § 61.880(2)(a), we look forward to your written decision on this complaint within twenty working days. If you have any questions regarding any part of this appeal or the underlying request for records, please contact me at records@americanoversight.org or 202.539.6507. Sincerely, Khahilia Shaw Counsel American Oversight D0FEE447-1140-495B-9570-AAB16CD3924F : 000045 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed EXH : 000004 of 000004 Attachments Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000001 of 000006 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Exhibit 7 D0FEE447-1140-495B-9570-AAB16CD3924F : 000046 of 000058 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Amy Feldman, Franklin Circuit Clerk Commonwealth of Kentucky Office of the Attorney General Daniel Cameron Attorney General September 1, 2020 Capitol Building, Suite 118 700 Capital Avenue Frankfort, Kentucky 40601 (502) 696-5300 Fax: (502) 564-2894 Sent via email Office of the Attorney General Open Records/Open Meetings Division 700 Capital Avenue, Suite 118 Frankfort, Kentucky 40601 RE: Open Records Appeal Log# 202000267 To Whom It May Concern: This letter is in response to the above-referenced open records appeal filed by Khahilia Shaw. Ms. Shaw requests review of the Office of the Attorney General’s (the “Office”) response to Austin Evers’ requests for public records. [See Ex. A, Shaw Appeal.] On appeal, the issues for decision are (1) whether the Attorney General’s denial of records related to election law investigations was overbroad, and (2) whether preliminary records that formed the basis of the Attorney General’s calendars, schedules, and itineraries are exempt from disclosure under KRS 61.878(1)(i) and (j). As explained below, Kentucky law is clear that the Attorney General’s denial of records related to election law investigations was not overbroad because KRS 61.878(1)(h) protects the Attorney General’s concurrent jurisdiction with that of county and Commonwealth’s attorneys to investigate and prosecute violations of Kentucky’s election laws. Kentucky law also clearly exempts from production preliminary records that form the basis of public officials’ calendars, schedules, and itineraries because those records are preliminary in nature and constitute preliminary planning and changes. Pursuant to the Kentucky Open Records Act, Mr. Evers requested copies of various records related to activities of Kentucky’s Absentee Ballot Integrity Task Force. [See Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk D0FEE447-1140-495B-9570-AAB16CD3924F : 000047 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000002 of 000006 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Law enforcement records The Office was entirely justified in both denials. As KRS 15.243 provides, the Attorney General is tasked with enforcing “all of the state’s election laws by civil or criminal processes.” As the Office noted in its response to Mr. Evers, the Attorney General shall “[i]nitiate investigations or investigate alleged violations of election laws at the request of a registered voter or on his own motion.” Id. at (2)(d). The Attorney General’s jurisdiction to investigate and prosecute violations of the election laws is “concurrent with that of county and Commonwealth’s attorneys.” KRS 15.242. In order to justify its denial of Mr. Evers’ requests, Ms. Shaw claims the Office must specify a prospective or contemplated law enforcement action and an articulable harm to the Attorney General. Ms. Shaw is wrong. As the Kentucky Supreme Court has held, “While the General Assembly has indeed made clear . . . that a prosecutor's litigation files are excluded in toto from the Act, it has made just as clear by singling them out that the prosecutor's files are, in that regard, unique.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013). As City of Ft. Thomas makes clear, “KRS 61.878(1)(h) gives a [prosecutor’s records] blanket protection from disclosure . . . whether an action is prospective or not.” Id. at 853. Specifically, KRS 61.878(1)(h) exempts the following records from disclosure: The Office received Mr. Evers’ requests on July 20, 2020. Therefore, the Office’s response complied with Senate Bill 150, which extended the response time for open records requests to 10 days during the state of emergency declared by the Governor in response to the COVID-19 pandemic. 2020 Ky. Acts ch 73 § 1(8)(a). 1 2 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) In her appeal, Ms. Shaw claims the Office’s denial related to law enforcement records is “overbroad” because it allegedly did not specify “neither (a) a prospective or contemplated law enforcement action nor (b) an articulable harm to the agency.” [Ex. A at 2.] Ms. Shaw also claims that the Office erred in denying Mr. Evers’ request for preliminary records that form the basis of public officials’ calendars, schedules, and itineraries. [Id.] EXH : 000003 of 000006 Ex. B, ORR Evers – Requests.] In its responses to Mr. Evers dated July 30, 2020, 1 the Office denied Mr. Evers’ request for records related to election law violations because those records were exempt from disclosure under KRS 61.878(1)(h). [See Ex. C, ORR Evers – 07.30.2020 Responses.] Further, the Office denied Mr. Evers’ request for records related to meetings and calendar invitations and entries because those records were exempt under KRS 61.878(1)(i) and (j). [Id.] Nevertheless, the Office provided Mr. Evers with a certain non-exempt record that was responsive to his request. [Id.] Pursuant to KRS 61.872(4), the Office also noted that the requests appeared to relate to functions of the Kentucky Secretary of State and therefore provided Mr. Evers with the information needed to submit a request to that public agency. [Id.] D0FEE447-1140-495B-9570-AAB16CD3924F : 000048 of 000058 September 1, 2020 Page 2 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk In Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), the Kentucky Supreme Court demonstrated the applicability of KRS 61.878(1)(h) to the Attorney General. The Court said subpoenas issued to representatives of the Fayette County Commonwealth's Attorney's Office and the Attorney General's Office were properly quashed because under KRS 61.878(1)(h) the requester was “clearly not entitled to such records under the Open Records Act[.]” Id. at 339. The Bowling Court cited to the earlier case of Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), in stating that the “Office of the Commonwealth of [sic] Attorney and the Office of Attorney General, together, represent the state's prosecutorial function in this case[.]” Id. (Emphasis added.). As the Attorney General’s jurisdiction is concurrent with that of county and Commonwealth’s attorneys to investigate and prosecute violations of Kentucky’s election laws, the prosecutorial exemption of KRS 61.878(1)(h) applies to exclude the records in toto from the Open Records Act. 17ORD-012, p. 3. 3 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) (emphasis added.) Moreover, KRS 61.878(1)(h) is not limited to county attorneys and Commonwealth’s attorneys; it’s equally applicable to the Attorney General, especially in this instance. As stated above, the Attorney General’s jurisdiction to investigate and prosecute violations of the election laws is “concurrent with that of county and Commonwealth’s attorneys.” KRS 15.242 (emphasis added). Therefore, the Attorney General is acting pursuant to KRS 15.210 in reviewing these matters for election law violations. 17-ORD-012, p. 3. Under KRS 15.210, the Attorney General is “authorized to exercise all powers and perform all duties in respect to such criminal actions or proceedings which the prosecuting attorney would otherwise perform or exercise[.]” Thus, as the county attorney or Commonwealth’s attorney in these matters would have the power to deny your request for records pertaining to investigations of election law violations, the Attorney General has that same power under KRS 15.210. EXH : 000004 of 000006 Records of law enforcement agencies . . . that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. D0FEE447-1140-495B-9570-AAB16CD3924F : 000049 of 000058 September 1, 2020 Page 3 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Contrary to Ms. Shaw’s claims, the Office correctly denied Mr. Evers’ request for preliminary records that formed the basis of the Attorney General’s calendars, schedules, and itineraries, as those records are exempt from disclosure under KRS 61.878(1)(i) and (j). Specifically, Mr. Evers sought “[a]ll email communications (including email messages, email attachments, and calendar invitations) sent or received by Attorney General Cameron concerning the activities of the Absentee Ballot Integrity Task Force or any issue within the purview of the task force.” [See Ex. B.] Ms. Shaw does not challenge the Office’s denial of Mr. Evers’ request for the Attorney General’s calendars and calendar invitations. The Open Records Act’s protection for preliminary drafts and recommendations is not limited to calendars and calendar invitations. Rather, records related to meetings and calendar invitations and entries are also exempt from disclosure under KRS 61.878(i) and (j). Specifically, KRS 61.878(i) and (j) exempts from disclosure “[p]reliminary drafts . . . notes . . . [p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.” As the Office stated in its response, in addition to public officials’ calendars, schedules, and itineraries, “preliminary records that form the basis of those documents can be withheld.” 08-ORD-217, p.6 (finding that emails related to calendars, schedules, and itineraries are excluded from disclosure because they represent preliminary drafts, notes, and memoranda containing opinions and recommendations). Ms. Shaw mistakenly relies on Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995) as grounds for her argument that preliminary records that form the basis of public officials’ calendars, schedules, and itineraries cannot be withheld. But in no way does Jones stand for that proposition. In fact, this Office relied on Jones in recognizing that public agencies may withhold access to emails related to public officials’ itineraries and schedules because those documents are preliminary in nature and 2 For example, the post-election inquiries required by KRS 15.243(3) are ongoing. 4 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Preliminary records EXH : 000005 of 000006 The records Mr. Evers requested are also exempt under KRS 17.150(2), which provides, “Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made.” Therefore, the completion of a prosecution or a decision not to prosecute is a condition precedent to public inspection. See, e.g., 18-ORD-027 (finding that the completion of prosecution or a decision not to prosecute is the “deciding factor”). When an agency invokes KRS 17.150(2), “the burden shall be on the custodian to justify the refusal of inspection with specificity.” KRS 17.150(3). Here, the investigations into potential 2 election law violations are ongoing and no prosecution decisions have been made, which is “a specific justification for withholding the investigative records under KRS 17.150(2).” 20-ORD090, p. 2. D0FEE447-1140-495B-9570-AAB16CD3924F : 000050 of 000058 September 1, 2020 Page 4 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Responsive records were identified and examined for exemptions. Where exempted, the Office explained the basis for the exemption. Where not, the Office produced the records. The Open Records Act requires nothing more. For these reasons, we request that you find that the Attorney General did not violate the Open Records Act. Sincerely, Daniel Cameron ATTORNEY GENERAL /s/ Charles A. English Charles A. English Assistant Attorney General Khahilia Shaw (via email to khahilia.shaw@americanoversight.org) EXH : 000006 of 000006 cc: Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) constitute preliminary planning and changes in those plans as they were refined and developed. Id. This is a natural and logical extension of the holding in Jones. It would make no sense to exempt public officials’ calendars, schedules, and itineraries but require that public agencies produce the documents that form the basis of those documents. As such, the Office’s denial of those records was proper. D0FEE447-1140-495B-9570-AAB16CD3924F : 000051 of 000058 September 1, 2020 Page 5 5 Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk EXH : 000001 of 000005 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Exhibit 8 D0FEE447-1140-495B-9570-AAB16CD3924F : 000052 of 000058 Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Amy Feldman, Franklin Circuit Clerk 20-ORD-147 September 15, 2020 In re: American Oversight/Office of Attorney General Summary: The Office of Attorney General (“Office”) did not violate the Open Records Act (”the Act”) in denying a request for records relating to the potential prosecution of election law violations. The Office also did not violate the Act by denying inspection of emails that relate to the Attorney General’s calendar appointments and meeting schedules. Open Records Decision American Oversight (“Appellant”), a non-profit organization, submitted two requests to the Office to inspect records. The first sought “[a]ll email communications (including email messages, email attachments, and calendar invitations) sent or received by Attorney General Daniel Cameron, or anyone communicating on his behalf, such as an assistant or scheduler, concerning the activities of Kentucky’s Absentee Ballot Integrity Task Force or any issue within the purview of the task force.” The second sought several categories of records pertaining to meetings of the task force, including by-laws or other entityformation documents, agendas, minutes, meeting notices, and transcripts or audio recordings of the meetings. With timely written responses, the Office denied inspection of records responsive to the first request as exempt prosecutorial files under KRS 61.878(1)(h), and explained that other responsive records were preliminary scheduling records under KRS 61.878(1)(i) and (j). The Office produced some records responsive to the second request, but denied inspection of other records that were preliminary. The Office further informed Appellant that Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk D0FEE447-1140-495B-9570-AAB16CD3924F : 000053 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000002 of 000005 Filed Amy Feldman, Franklin Circuit Clerk 20-ORD-147 Page 2 the Secretary of State may possess responsive records, and provided Appellant with the contact information for the official records custodian for the Secretary of State. Appellant initiates this appeal to challenge the Office’s reliance upon KRS 61.878(1)(h) as overly broad. Appellant also recognizes that the calendars of public officials may be withheld under KRS 61.878(1)(i), but claims that it requested more than calendar invitations. Appellant claims it also sought other records “such as internal meeting notices.” For the following reasons, the Office did not violate the Act. KRS 61.878(1)(h) is commonly referred to as the “law enforcement exception” because, in part, it exempts from disclosure records of law enforcement agencies compiled in the process of investigating statutory or regulatory violations if premature release would harm the investigation. But KRS 61.878(1)(h) also exempts, in total, “records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation[.]” The Kentucky Supreme Court has held that, unlike police investigatory records that may only be withheld under KRS 61.878(1)(h) upon a showing of harm to the investigation, records maintained in the criminal files of Commonwealth’s attorneys are categorically exempt at all times. City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013). Although the Attorney General does not ordinarily act in the capacity of a Commonwealth’s attorney, unless acting as a special prosecutor under KRS 15.210, the Attorney General does have primary jurisdiction over the enforcement of the Commonwealth’s election laws, including the power to prosecute violators. KRS 15.243. In this regard, the Attorney General stands in the shoes of the Commonwealth’s attorney to prosecute election law crimes, and may deny inspection of records contained within those prosecutorial files. See KRS 15.242 (“The Attorney General shall possess jurisdiction, concurrent with that of county and Commonwealth's attorneys, to investigate and prosecute violations of the election laws.”). The courts, and this Office, have found that when the Attorney General acts as a prosecutorial arm of the Commonwealth, the Office may deny inspection of records maintained for that purpose. See Skaggs v. Redford, 844 S.W.2d 389, 390 (Ky. 1992) (overruled on other grounds by City of Ft. Thomas, 406 S.W.3d 342) (holding that the Attorney General’s prosecutorial records were exempt Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk D0FEE447-1140-495B-9570-AAB16CD3924F : 000054 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000003 of 000005 Filed Amy Feldman, Franklin Circuit Clerk 20-ORD-147 Page 3 because both the “Office of the Commonwealth of [sic] Attorney and the Office of Attorney General, together, represent the state’s prosecutorial function in this case[.]”); Bowling v. Lexington-Fayette Urban Cty. Gov’t., 172 S.W.3d 333, 339-40 (Ky. 2005); see also 17-ORD-12 (holding that the Office may rely upon KRS 61.878(1)(h) to deny inspection of records contained in the Office’s special prosecution file.). In its initial response to the request, the Office explained that information contained within the responsive records could identify subjects of election law complaints, as well as attorney mental impressions about legal theories related to the complaints. As noted by the Bowling court, KRS 61.878(1)(h) “appl[ies] equally to all records in the litigation files of the Commonwealth’s Attorney, regardless of origin.” 172 S.W.3d at 349. The same is true as it relates to the Attorney General’s litigation files when he acts as the Commonwealth’s chief prosecutor of election law violations. KRS 15.243; see also 17-ORD-012 (applying this principle when the Office acts as special prosecutor). And because that information is exempt “regardless of origin,” Bowling, 172 S.W.3d at 349, it is immaterial if the origin of this information happened to be the task force. Accordingly, the Office did not violate the Act in denying inspection of records that are part of its litigation files pertaining to investigations of election law violations for potential prosecution. The Office denied Appellant’s request for other records as preliminary drafts or notes under KRS 61.878(1)(i) and explained that the responsive records pertained to calendars, schedules, or itineraries. In Courier-Journal v. Jones, 895 S.W.2d 6, 10 (Ky. App. 1995), the Kentucky Court of Appeals held that the Governor’s appointment schedule was not subject to inspection as it was “nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness[.]” From this reasoning, this Office recognized that emails containing potential itineraries for the Governor’s economic development trip to Japan, as well as emails scheduling potential meetings at that trip, were exempt under KRS 61.878(1)(i). See 08-ORD-217. Appellant agrees that calendar invitations, as well as calendars themselves, may be withheld under KRS 61.878(1)(i). However, Appellant claims that it requested more than calendar invitations, “such as internal meeting notices.” Appellant also sought meeting agendas (one of which was provided), meeting notices, and minutes. Upon reviewing the request, the Office determined that the Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk D0FEE447-1140-495B-9570-AAB16CD3924F : 000055 of 000058 09/22/2020 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) 20-CI-00758 EXH : 000004 of 000005 Filed 09/22/2020 Amy Feldman, Franklin Circuit Clerk 20-ORD-147 Page 4 only responsive records in its possession were those relating to the scheduling of meetings that the Attorney General may have been invited to attend. Those records are exempt under KRS 61.878(1)(i) as preliminary drafts or notes. Appellant claims that its request sought more than just calendar invitations. However, that claim essentially disputes the number of potentially responsive records in the Office’s possession. This Office routinely declines to resolve disputes involving a perceived disparity between records sought and records produced. See, e.g., 19-ORD-234; 19-ORD-083; 03-ORD-61; OAG 89-81. Moreover, the Office informed Appellant that the Secretary of State might possess additional responsive records, and provided the contact information for that office’s official records custodian. See KRS 61.872(4). Accordingly, the Office did not violate the Act in denying inspection of the requested records. A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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. Daniel Cameron Attorney General /s/Marc Manley Marc Manley Assistant Attorney General EXH : 000005 of 000005 #267 Distributed to: Khahilia Shaw Charles English D0FEE447-1140-495B-9570-AAB16CD3924F : 000056 of 000058 20-CI-00758 Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) Filed Filed 20-CI-00758 09/22/2020 Amy Feldman, Franklin Circuit Clerk Sum Code: CI 20-CI-00758 Court: CIRCUIT County: FRANKLIN Commonwealth of Kentucky Court of Justice Courts.ky.gov CIVIL SUMMONS CR 4.02; Cr Official Form 1 Plantiff, AMERICAN OVERSIGHT VS. OFFICE OF THE ATTORNEY GENERAL, Defendant TO: OFFICE OF THE ATTORNEY GENERAL 700 CAPITAL AVENUE SUITE 118 FRANKFORT, KY 406013449 The Commonwealth of Kentucky to Defendant: You are hereby notified that a legal action has been filed against you in this Court demanding relief as shown on the document delivered to you with this Summons. Unless a written defense is made by you or by an attorney on your behalf within twenty (20) days following the day this paper is delivered to you, judgment by default may be taken against you for the relief demanded in the attached complaint. The name(s) and address(es) of the party or parties demanding relief against you or his/her (their) attorney(s) are shown on the document delivered to you with this Summons. Franklin Circuit Clerk Date: 9/22/2020 Proof of Service This Summons was: D0FEE447-1140-495B-9570-AAB16CD3924F : 000057 of 000058 Case #: Presiding Judge: HON. PHILLIP J. SHEPHERD (648260) AOC-E-105 Rev. 9-14 † Served by delivering a true copy and the Complaint (or other initiating document) † Not Served because: Date: , 20 Served By Title Summons ID: @00000224768 CIRCUIT: 20-CI-00758 Certified Mail AMERICAN OVERSIGHT VS. OFFICE OF THE ATTORNEY GENERAL Page 1 of 1 CI : 000001 of 000001 To: Case #: 20-CI-00758 Received From: RANDAL Envelope #: 2787018 STROBO Case Title: AMERICAN OVERSIGHT VS. OFFICE OF THE ATTORNEY GENERAL Filed On:9/22/2020 10:58:37AM Account Of: RANDAL STROBO Confirmation Number: 114398845 # Item Description Amount 1 2 3 4 5 6 7 8 Access To Justice Fee Civil Filing Fee Money Collected For Others(Court Tech. Fee) Library Fee Court Facilities Fee Money Collected For Others(Attorney Tax Fee) Money Collected For Others(Postage) Charges For Services(Copy - Photocopy) $20.00 $150.00 $20.00 $3.00 $25.00 $5.00 $14.00 $5.80 TOTAL: Generated: 9/22/2020 $242.80 Page 1 of 1 D0FEE447-1140-495B-9570-AAB16CD3924F : 000058 of 000058 Commonwealth of Kentucky Amy Feldman, Franklin Circuit Clerk