Bryan Hubbard

Dear Ms. Rubin:

This letter shall constitute the Attorney General’s response to your open records request pursuant to the Kentucky Open Records Act, KRS 61.870 to 61.884. We received your request on January 2, 2024. Specifically, you requested:

“All emails of Bryan Hubbard (bryan.hubbard@ky.gov<mailto:bryan.hubbard@ky.gov>) from Jan 2022 to the time this request is processed.”

After a diligent search, the Office identified potentially responsive records to your request. However, each of these records will need to be reviewed for content that may be exempt from disclosure under the Act. KRS 61.872(5) authorizes this Office to delay production if “the public record is in active use, in storage or not otherwise available.” Because these records are in storage and not otherwise available, the Office will complete its review and provide records in response to your request on or before Tuesday, January 16, 2024.

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).

Sincerely,

Sarah A. Telle

On behalf of
Nick J. Hunt
Records Custodian

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Sarah A. Telle
Asst. Attorney General | Office of Consumer Protection
Office of the Kentucky Attorney General
1024 Capital Center Drive | Suite 200 | Frankfort, Kentucky 40601

Dear Ms. Rubin,

This letter shall constitute the Attorney General’s subsequent response to your open records request pursuant to the Kentucky Open Records Act, KRS 61.870 to 61.884. We received your request on May January 2, 2024. Specifically, you requested:

“All emails of Bryan Hubbard (bryan.hubbard@ky.gov<mailto:bryan.hubbard@ky.gov>) from Jan 2022 to the time this request is processed.”

The Office responded to your request on January 9, 2024, noting the Office needed up until January 16, 2024 to review these records. After a diligent search, the Office is providing 2,410 pages of records, comprised of 773 emails, responsive to your request at the following link: https://www.dropbox.com/scl/fo/ln1z1ne8bygn3kd700x43/h?rlkey=z69qn2at20d8zhts6fz3nglzl&dl=0. (Please let us know if you have trouble using this link). Because the Office’s Dropbox does not have unlimited storage, these documents and recordings will be removed after 30 days. Please download these documents and recordings to your own device before then.

Please note that certain personal information has been redacted from these records based on KRS 61.878(1)(a), which exempts from open records disclosure “information of a personal nature where disclosure thereof would be a clearly unwarranted invasion of personal privacy.” Such information includes, but is not limited to, social security numbers, birthdates, addresses, telephone numbers, and financial information, the disclosure of which may leave persons at risk for identity theft. See Zink v. Commonwealth, 902 S.W.2d 825, 828-29 (Ky. App. 1994). Here, the redactions include personal email addresses, cell phone numbers, residential addresses, Zoom meeting passcodes and links, security codes, and similar personal information.

Please further note that the Office has withheld the following records, as they are exempt under the Act as further explained by category below:

1. Eighty-eight (91) emails between Bryan Hubbard and staff and attorneys in the Office discussing scheduling of meetings and appointments, which are exempt as they are interoffice, preliminary notes between staff and attorneys. See KRS 61.878(1)(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 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).
2. Five (5) emails between Bryan Hubbard and other attorneys and staff within the Office relating to the Office’s biennial budget. These records are exempt as they are interoffice, preliminary notes, drafts, notes and/or preliminary content between staff and attorneys in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office related to the Office’s discussions surrounding the biennial budget. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
3. Two-hundred seventy-eight (278) Outlook calendar appointments and invitations from Bryan Hubbard’s calendar have also been withheld, which 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 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).
4. Eight (8) emails between Bryan Hubbard, Chris Lewis, and other staff and attorneys in the Office relating to the COAG Opioid Response Team/State Opioid Administrators Call. These records are exempt as they are interoffice, preliminary notes, drafts, and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
5. One (1) email sent to Bryan Hubbard and various other state Attorneys General officials throughout the country regarding a Texas Motion to Enforce a settlement plan regarding opioid settlements. This email and attachments are exempt as they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). This email is further exempt under KRS 61.878(1)(l) as it constitutes confidential attorney-client communications related to opioid settlements in other states. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). This record is further exempt from production under the common interest privilege, which is incorporated into the Act under KRS 61.878(1)(l). See 39 State Amicus Curiae Br. 2–3 in EPA v. Ellison, No. A20-1344 (Minn. 2021) (“the common-interest doctrine has become a nearly ubiquitous feature of American jurisprudence. At least 20 states have codified the doctrine in their statutory codes or rules of evidence, while over a dozen more have recognized the doctrine as a common-law feature of the attorney-client privilege.” (citations omitted).
6. Two (2) emails between Bryan Hubbard and staff containing contact information for KASA school administrators and an email address of an Office staff member. These records are exempt as they are interoffice preliminary notes between staff and Mr. Hubbard. See KRS 61.878(1)(i) and (j).
7. Thirteen (13) emails between and among the Kentucky Opioid Abatement Advisory Commission members containing preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j).
8. Thirty (30) emails between Bryan Hubbard and other attorneys and staff in the Office containing various news articles and related discussions on opioid-related developments throughout the state and country. These records are exempt as they contain interoffice, preliminary notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
9. Eight (8) emails between Bryan Hubbard and staff related to a Memorandum of Understanding (“MOU”) with the Kentucky Association of Health Plans (“KAHP”). These records are exempt as they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office related to the KAHP MOU. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
10. Sixty-eight (68) emails between Bryan Hubbard and other staff and attorneys relating to meetings and agendas of the KYOACC. These records are exempt as they are interoffice, preliminary notes between staff and attorneys and contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office relating to draft agendas and meetings of the KYOACC. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
11. One-hundred fifty-seven (157) emails between Bryan Hubbard and staff and attorneys in the Office, including the Communications division, containing interoffice discussions of press and media-related matters of the KYOACC and opioid abatement. These records are exempt as they are interoffice, preliminary notes between staff and attorneys and contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office related to the Office’s public communications regarding KYOACC and opioid abatement. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
12. Two-hundred two (202) emails between Bryan Hubbard and other staff and attorneys in the Office relating to various townhall meetings, forums, panels, and speaking engagements – including planning logistics of arranging speakers and locations/sponsors for such events – for the Office’s opioid abatement and KYOACC outreach efforts throughout the state. These records are exempt as they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
13. Thirty-nine (39) emails between Bryan Hubbard and staff relating to questions, letters, emails, and other outreach from constituents, health care providers, or other private individuals related to the Office’s opioid abatement efforts. These records are exempt as they are interoffice, preliminary notes between staff and attorneys and contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). Furthermore, two (2) emails from private individuals to Mr. Hubbard directly are also withheld under KRS 61.878(1)(a) and (i) as they contain correspondence with private individuals the disclosure of which constitute a clearly unwarranted invasion of personal privacy.
14. Twenty-four (24) emails involving the Office’s Medicaid Fraud division, including Buprenorphine national drug code (“NDC”) data, and developments of potential matters for or under investigation. These records are exempt as they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
15. Three (3) emails between Bryan Hubbard and staff related to a police ride along form with the City of Richmond. These records are exempt as they are interoffice, preliminary notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j).
16. Two (2) emails between Bryan Hubbard and other staff and attorneys in the Office containing preliminary drafts and discussions related to a fentanyl multi-state letter with the Department of Justice (“DOJ”). These records are exempt as they are interoffice, preliminary notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These records are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
17. One (1) email between Alison Chavies and Bryan Hubbard containing confidential contact information for various state officials (Representatives, Senators, County Judge Executives, Mayors, etc.) This email is exempt as it is an interoffice preliminary note and draft in which opinions are expressed. See KRS 61.878(1)(i) and (j).
18. One (1) email between Bryan Hubbard, Amy Burke, and other staff and attorneys regarding strategic planning for the Child Abuse and Neglect Prevention Board. This email is exempt as it is an interoffice preliminary note in which opinions are expressed. See KRS 61.878(1)(i) and (j).
19. One (1) email between Alison Chavies and Bryan Hubbard discussing a preliminary draft document. This email is exempt as it is an interoffice preliminary note and draft in which opinions are expressed. See KRS 61.878(1)(i) and (j). This email is further exempt under KRS 61.878(1)(l) as it constitutes confidential attorney-client communications between attorneys and staff. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
20. One (1) email between Scott Hornbuckle and Bryan Hubbard regarding review of a draft for The Kentucky Project. This email is exempt as it is an interoffice preliminary note. See KRS 61.878(1)(i) and (j). This email is further exempt under KRS 61.878(1)(l) as it constitutes confidential attorney-client communications between attorneys and staff. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
21. One (1) email between Bryan Hubbard and staff containing a Sharepoint link with the email titled “Tom Wolf.” This email is exempt as it is an interoffice preliminary note. See KRS 61.878(1)(i) and (j).
22. One (1) email between Alison Chavies and Bryan Hubbard containing a Google document spreadsheet link. This email is exempt as it is an interoffice preliminary note. See KRS 61.878(1)(i) and (j).
23. One (1) email between Heather Wagers and Bryan Hubbard containing contact information for Sonja Grey of ECHO in Kentucky. This email is exempt as it is an interoffice preliminary note. See KRS 61.878(1)(i) and (j).
24. Six (6) emails between Bryan Hubbard and other attorneys in the Office regarding a Nonprofit Advocacy Partner Award. These emails are exempt as they are interoffice, preliminary notes between attorneys containing preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j).
25. Seventy-eight (78) emails between Bryan Hubbard and various other staff and attorneys in the Office regarding deadlines and reminders for various open records requests. These records are exempt as they are interoffice, preliminary notes between staff and attorneys relating to the search and deadline of these open records requests, and are therefore exempt under the Act as they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office related to the Office’s search for records and response to these open records requests. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
26. One-hundred thirty-three (133) emails between Bryan Hubbard and other staff and attorneys in the Office related to the grant process, funds, and related matters surrounding management of the opioid settlement fund. These records are exempt as they are interoffice, preliminary notes between staff and attorneys and they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
27. Sixty-five (65) emails between Bryan Hubbard and other staff and attorneys in the Office regarding discussions and drafts of statutory and regulatory matters related to opioids and opioid abatement. These records are exempt as they are interoffice, preliminary notes between staff and attorneys and they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). These emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff in the Office. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
28. Six (6) emails between Bryan Hubbard and other staff and attorneys in the Office related to personal matters – such as personal family issues. These records are exempt as they are interoffice, preliminary notes between staff and attorneys. See KRS 61.878(1)(i) and (j). These emails are also withheld under KRS 61.878(1)(a) as the disclosure of same would constitute a clearly unwarranted invasion of personal privacy.
29. One (1) email between Bryan Hubbard and Taylor Leigh, with the Kentucky Administrative Office of the Courts (“AOC”), containing a proposed contract between Mr. Hubbard and AOC – specifically a draft MOU for providing training to attendees of the 2023 Mental Health Summit. This email is exempt as it contains preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j).
30. One (1) email between Bryan Hubbard and Tom Stephens with KAHP containing a draft MOU for an opioid conference. This email is exempt as it contains preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j).
31. Forty-three (43) emails between Bryan Hubbard and other staff and attorneys in the Office, and state human resources-related email domains, all relating to various human resources personnel matters, including timesheets, benefits, vacation, office policies, trainings, and related personnel matters. These records are exempt as they they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j). Many of these emails are further exempt under KRS 61.878(1)(l) because they constitute confidential attorney-client communications between attorneys and staff. KRE 503; Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001).
32. One-hundred one (101) emails between Bryan Hubbard and staff and attorneys in the Office related to either his or his staff’s travel, such as flight records, hotel reservations, travel reimbursements, and related interoffice emails concerning travel. These records are exempt as they are interoffice, preliminary notes between staff and attorneys and they contain preliminary drafts, notes and/or preliminary content in which opinions are expressed. See KRS 61.878(1)(i) and (j).
33. Ten (10) emails between Bryan Hubbard and other staff and attorneys in the Office forwarding voicemails from various individuals. These emails are exempt as they are interoffice, preliminary notes between staff and attorneys. See KRS 61.878(1)(i) and (j).

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).

Sincerely,

Sarah Telle

On behalf of
Nick Hunt
Records Custodian

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Sarah A. Telle
Asst. Attorney General | Office of Consumer Protection
Office of the Kentucky Attorney General
1024 Capital Center Drive | Suite 200 | Frankfort, Kentucky 40601