For Immediate Release
September 14, 2015

Contact:
Craig Richardson
Richardson@eelegal.org
703-981-5553

What’s the Matter With Kentucky?: Records Indicate that Office of Kentucky Attorney General Conway Did in Fact Receive a Request it Denied Receiving, Seeking a Ruling on Untrue Claim by Kentucky Governor Beshear’s Office that it has ‘No Records’ Responsive to a “111(d)” FOIA Filed by E&E Legal — Which Records Obtained Elsewhere Prove it In Fact Has

Washington, D.C. — The Kentucky scandal involving Gov. Steve Beshear’s false claim that it has “no records” relating to its long-running effort to promote EPA’s “111(d)” climate change rules, aimed at shutting the nation’s existing coal-fired power plants, just got stranger. This is courtesy of newly produced records indicating Attorney General Jack Conway has gotten in on the act. 

Specifically, on July 15, 2015, the Energy & Environment Legal Institute (E&E Legal)  filed a Freedom of Information Act with Kentucky Governor Steve Beshear’s office  seeking records related to Mr. Tom Steyer, NextGen, 111(d), and an interstate climate pact.   Governor Beshear’s office provided a curious “no records” response to the E&E Legal request, given that, thanks to other governors’ offices who did provide records, E&E Legal possesses numerous examples of e-mails to or from the Office of the Kentucky Governor that respond to this request.

In fact this was E&E Legal’s second “no records” response from the Kentucky Governor’s office in response to requests for records which E&E Legal learned, between the first and second requests, do in fact exist.  E&E Legal obtained these supposedly non-existent records showing that Gov. Beshear’s Washington DC representative Rebecca Byers, on his behalf, was among the small “core group” of governors “quietly” preparing to force President Obama’s EPA rule into place.

“We have obtained many emails showing the Governor was in the ‘core group’ discussing a quiet plan, developed in close cooperation with mostly activist coastal state governors and wealthy left-liberal business interests and foundations, over the course of two years, to ensure EPA’s “Clean Power Plan” gets implemented along with the rest of the accompanying agenda (governors compact, Paris treaty, renewables infrastructure),” said E&E Legal Senior Legal Fellow Chris Horner who filed the Kentucky FOIA.  “Alternately, if the Governor’s office really does not possess these records, then it has been inappropriately destroying them.”

After receiving the two “no records” responses, E&E Legal brought suit against the Commonwealth, demanding it turn over emails responsive to both.  Today is the deadline for the Governor’s response to this suit.  Adding to the troubling revelations are documents E&E Legal obtained at the end of last week, in response to an appeal of the Governor’s claim that no records exist even though E&E Legal proved they do;   E&E Legal filed this appeal, along with exemplars proving the emails exist, with Kentucky Attorney General Jack Conway. Under Kentucky law, the Attorney General has a duty to respond to appeals of open records requests when there is a dispute as to whether a state agency has followed the law.

However, E&E Legal never received a response to its appeal. When E&E Legal’s lawyers called the AG to inquire, the AG’s office denied ever receiving the appeal, claiming its fax machine must not have been working.  Checking on this claim has now produced interesting results, through a follow-up open records request for all fax logs indicating what fax transmissions the AG received over a three day period, including the date of E&E Legal’s appeal.

These records confirm that Attorney General Conway’s fax machine was in fact in working order and — the office acknowledges with documentary evidence — was receiving faxes the days before, of and after our appeal.

In fact, these records (page 6 of 11) confirm that that office received a fax of 14 pages beginning 9:20 a.m. eastern on July 21, 2015 from, coincidentally, the same number that E&E Legal’s fax confirmation shows succeeded in sending a 1.9 minute transmission of 14 pages concluding at  9:22 am eastern (time- stamped  6:22 pacific) on the same date.  That is, Kentucky’s OAG received an appeal it insists it didn’t receive, challenging the Governor’s claim that records do not exist that in fact do exist and seeking that office’s ruling on the demonstrably false claim.

“Documents don’t lie, even if people sometimes do,” added Horner.  “The record reflects that Attorney General Conway’s Office chose to avoid fulfilling its obligations, when doing so was certain to draw the ire of one of two constituencies the Attorney General is courting as he seeks to become governor.  These documents indicate that, when the job and the campaign came into apparent conflict, the campaign won out.”

The AG had two statutory courses of action before him, neither of them without political risk, and he elected to create a third that the legislature never would: pretend you never received a filing so as to duck the issue.  This is remarkable if — given the Governor’s claim not once but twice that records which exist really don’t — consistent with E&E Legal’s open records experiences in Kentucky.

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The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.