Opinion
Opinion By: Albert B. Chandler III,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Oakland violated the Open Records Act in the disposition of Stephen B. Catron's August 6, 2002, request for access to records relating to the city's opposition to the zoning map amendment request for land owned by South Central Kentucky Regional Development Authority 1 and organized efforts relating thereto. For the reasons that follow, we find that the city violated the Act, in part, in disposing of Mr. Catron's request.
On August 6, Mr. Catron requested that the city afford him access to all correspondence, emails, minutes of meetings, notices of meetings, resolutions, municipal orders, records (including computer records), notes, billing statements, checks (either personal, cashier or certified), receipts, summaries, compilations, and other materials on documents that demonstrate or relate to the City of Oakland's:
1. [e]fforts to encourage, solicit or accept donations or payments from the general public and other individuals, organizations and entities, regardless of where located, with regard to the City of Oakland's involvement in matters relating to the challenge, appeal or participation in proceedings regarding the zoning map amendment request for land owned in whole or in part by the South Central Kentucky Regional Development Authority;
2. [e]fforts to engage legal counsel for its representation in matters relating to the challenge, appeal or participation proceedings regarding the zoning map amendment request for land owned in whole or in part by the South Central Kentucky Regional Development Authority.
3. [a]pproval of the expenditure of its funds, without respect to the origin of such funds, including the engagement of legal counsel, in matters relating to the challenge, appeal or participation proceedings regarding the zoning map amendment request for land owned in whole or in part by the South Central Kentucky Regional Development Authority.
4. authorization of any of its elected or appointed officers, employees or agents, to express a position on behalf of the City of Oakland as to the approval, disapproval or as to its participation in matters relating to the zoning map amendment request for land owned in whole or in part by the South Central Kentucky Regional Development Authority.
5. authorization of any of its elected or appointed officers, employees or agents, to communicate with any potential industrial prospects for the proposed Kentucky Trimodal Transport, including, among others the Honda Motor Company or Honda Motor Company, Ltd.
6. involvement in the Warren County and/or Inter-Modal Transportation Authority's request to the Kentucky County Debt Commission for approval to issue mortgage revenue bonds, or any appeals from the County Debt Commission's approval of that request.
On behalf of the City of Oakland, attorney David F. Broderick responded to Mr. Catron's request on August 12. 2 Mr. Broderick provided Mr. Catron with copies of the minutes of the Oakland City Commission's June 2, 2002, "special emergency meeting;" a resolution adopted on June 2, 2002; a resolution adopted on August 10, 1998; a July 5, 2002, letter from Bill Mansfield, Mayor of the City of Oakland, to Hiroyuki Yoshino, President and CEO of Honda Motor Company, Ltd.; and a June 18, 2002, letter from Funitoshi Kuronuma, Honda Motor Company, Ltd., to the "Keep Kerst Environmental Education and Protection Coalition." However, Mr. Broderick advised Mr. Catron:
I am some [sic] attorney/client communications that involve direct communications, other than the City of Oakland. They are not produced pursuant to the attorney/client privilege, although I think exceptions to the Open Meetings Act would also be applicable.
On August 13, 2002, Mr. Catron responded to Mr. Broderick's letter, questioning Mr. Broderick's reliance on the attorney/client privilege as the basis for withholding entire documents. He explained:
Kentucky's open records law requires that documents otherwise subject to disclosure but containing some privileged information must be produced with any privileged information redacted. Please produce all such documents with appropriate redactions immediately. For all documents and information that you maintain are subject to the attorney/client privilege, please disclose to me the exact nature of the documents you are categorizing as privileged and the basis for your position that the privilege attaches.
In addition, it appears that certain records requested were not produced. In particular, with respect to the donations the City accepted to finance its zoning appeal, your client did not produce any copies of checks received, receipts, cash receipt records for the Special Fund (or any other fund), or any records of its efforts to solicit donations. The minutes produced clearly indicate that the appeal will be paid for by donations to the City of Oakland's Special Fund.
Shortly thereafter, Mr. Broderick notified Mr. Catron that he had provided "the documents we have in our possession," and indicated that he would "get copies of the checks and receipts you requested and should have them to you by Monday."
Having received no subsequent correspondence, Elizabeth McKinney, an attorney in Mr. Catron's law firm, initiated this appeal on August 28, 2002, asserting that the City of Oakland "has failed to comply with the statutory requirements for responding to our client's open records request." In support, she noted that KRS 61.880(1) requires the city to cite the specific exemption authorizing the withholding of the record and briefly explain how the exemption applies to the record withheld, and that KRS 61.878(4) requires disclosure of the nonexempt portions of public records in which exempt and nonexempt information is commingled. Ms. McKinney maintained that the city failed to "identify the nature" of the records withheld and indicate whether the entire record was protected. Additionally, she noted, the city "failed to provide access to certain records that are certain to exist based on references in the records it did produce as well as Mr. Broderick's correspondence . . . ." It was Ms. McKinney's position that "[c]ounsel's response that the records will be furnished later is tantamount to a denial of access to those records."
In supplemental correspondence directed to this office following commencement of Ms. McKinney's appeal, Mr. Broderick amplified on the city's position. In an attempt to explain "why most all of the records requested by Ms. McKinny [sic] do not exist," he advised:
. . .
Clearly, that initial open records request was exhaustive and understandably, the requesting party expected voluminous records in response. The Respondent's response . . . included Minutes of the City of Oakland, Resolution No. 2001-2002-03, Resolution No. 98-99-01, and correspondence to and from Honda Motor Company.
In that response, Respondent noted that some documents were excluded from production by the attorney/client privilege. In a later correspondence, Respondent stated that copies of checks and receipts would be forwarded shortly. These requested checks and receipts pertained to funds donated by individuals to the City of Oakland for the purpose of retaining undersigned counsel. The statement by the Respondent was, admittedly, made with the erroneous assumption that said checks and/or receipts existed. It was later determined that no such documents exist.
Mr. Broderick then turned to Ms. McKinney's allegations that the claimed privilege did not authorize blanket nondisclosure of responsive records and that existing documents were not produced. He asserted:
As for the latter, Respondent assumes that Ms. McKinney is referring to the checks and receipts that were admittedly promised but never delivered. As stated above, these documents do not exist. No receipts were given to donators to the special funds and all checks have long since been deposited and have cleared. That leaves the matter of documents excluded from production pursuant to the attorney client privilege.
The withheld documents consist of correspondence from the undersigned to his clients, the Respondent and individual residents of Oakland, namely Billy Mansfield, individually, and Gayla Cissell, individually. Some of this correspondence was addressed to the Respondent as well as the above individuals. Thus, not only is the City's right to protect its attorney-client privilege at stake, so are the rights of the individual clients involved. Furthermore, the Respondent has withheld a handwritten ledger of donators to the special fund. Ms. McKinney states in her Appeal that the Respondent's response to the initial request is legally insufficient for lack of a sufficient statement of exemption. These documents have been withheld based upon KRS 61.878(1)(j), KRS 447.154, and Sup. Ct. Rule 3.130.
In support, Mr. Broderick cited numerous open records decisions of the Attorney General and the Kentucky Court of Appeals' nonfinal decision in Meriwether v. Lexington Fayette Urban County Government, Ky.App., 2000-CA-002050-MR (2002).
With regard to the records withheld, Mr. Broderick concluded:
The small amount of correspondence from the undersigned to the Respondent consist of such clearly privileged legal advice. To redact any non-privileged contact, as Ms. McKinney suggests, would be to redact the entire correspondence. Furthermore, as some of the correspondence is addressed to both Oakland and undersigned counsel's individual clients, that documentation is privileged based upon the individual's right. Indeed, the mere fact that they have retained counsel is privileged.
As for the handwritten ledger of donations to the special fund, that too is protected by the attorney-client privileged [sic] and exempted by the statutes and regulations cited above. The information requested pertains to the retention of legal counsel and clearly is excluded by the attorney-client privilege accordingly.
In closing, he reaffirmed that the documentation withheld is "extremely sparse, but it has been withheld on strong, recognized grounds."
The questions presented to the Attorney General for resolution in this appeal can be summarized as follows:
1. Whether the City of Oakland conducted an adequate search for records responsive to Mr. Catron's August 6 request;
2. Whether the City of Oakland met its statutory burden of proof in invoking the attorney/client privilege as the basis for partially denying Mr. Catron's August 6 request; and
3. Whether the City of Oakland's response satisfied the requirements of KRS 61.880(1).
Acknowledging that the city made a good faith effort to produce easily identifiable and immediately retrievable public records that were responsive to Mr. Catron's request, we conclude that each of these questions must be answered in the negative.
Adequacy of the city's search
Contrary to Mr. Broderick's statement, Mr. Catron's broadly worded open records request of August 6 implicated far more records than those that narrowly related to Mr. Broderick's representation of the City of Oakland, and individual residents of the city, in their formal opposition to the Planning Commission's approved zone change of 153 acres of farmland from agriculture to heavy and light industry. The request extended to records relating to authorization by the city to its officers, agents, or employees to express a position on the city's behalf on the zoning map amendment request and to communicate with potential industrial prospects, and records relating to the Warren County and/or Inter-Modal Transportation Authority's request to the Kentucky County Debt Commission for approval to issue mortgage revenue bonds. Nevertheless, it appears that Mr. Broderick confined his search for responsive records to "documents we have in our possession." If by "we" he means only those records that have come into his custody or the custody of his office since he assumed representation of the city, we must conclude that his search was inadequate.
In 95-ORD-96, the Attorney General established a methodology for determining the adequacy of an agency's search for records responsive to an open records request. At page 7 of that decision, we observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records.
95-ORD-96, p. 7. Mr. Broderick apparently directed his search to the first, and most obvious source, of responsive records, namely those that were maintained in his office. It appears that he did not extend his search to records maintained by Oakland's City Attorney Marty Harrison, Oakland's current Mayor William P. Mansfield, or former Mayor Craig H. Taylor 3, the members of the Oakland City Commission, Oakland's City Clerk Rita M. Story, or city employees, if there are any. Nor does it appear that he directed the city to conduct a search of pertinent files maintained by the city at its own storage sites or to produce the minutes of other public meetings for Mr. Catron's review. Accordingly, we find that if, in fact, Mr. Broderick confined his search to records transmitted to him since he assumed representation of the city, he did not employ a search method that could reasonably be expected to produce the records requested and that the City of Oakland's search was inadequate.
Attorney/client privilege and the city's statutory burden of proof
We next consider whether the City of Oakland met its statutory burden of proof in denying that portion of Mr. Catron's request that implicated correspondence exchanged by Mr. Broderick, city officials, and individuals appealing the Planning Commission's action, records relating to the expenditure of funds to compensate Mr. Broderick, and the ledger containing the names of donors who have contributed to the City of Oakland special fund from which Mr. Broderick's fee will be paid. The city relied on the attorney/client privilege, citing KRS 61.878(1)(j), KRS 447.154, and Supreme Court Rule 3.130.
The city is correct in its assertion that the courts and this office have affirmed public agency reliance on the attorney/client privilege and work product doctrine as a basis for denying access to public records. In so doing, the courts and this office have cited KRE 503, Rule of Civil Procedure 26.02(3)(a), and KRS 447.154, operating in tandem with KRS 61.878(1)(l), which authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRE 503(b) codifies the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communications made for the purpose of facilitating the rendition of professional legal services to the client[.]
With respect to the privilege, the Attorney General has observed:
The privilege . . . consists of three elements: The relationship of attorney and client, communication by the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed. R. Lawson, Kentucky Evidence Law Handbook, § 5.10 at 232 (1993), citing United States Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). Its purpose is to insure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objectives." Kentucky Evidence Law Handbook, § 5.10 at 232.
94-ORD-88, p. 4. Continuing, we noted that "an agency can be a 'client' and agency lawyers can function as 'attorneys' within the relationship contemplated by the privilege." Id.
In responding to Mr. Catron's request, the city has identified, albeit erroneously, the relevant exception to public inspection and referenced a nonfinal decision of the Court of Appeals and several Attorney General's opinions. The city has asserted that the records withheld consist of correspondence exchanged by Mr. Broderick and his clients on the subject matter upon which professional advice was sought, but has not demonstrated that the correspondence was handled in a confidential manner thus qualifying for exclusion as records protected by the attorney/client privilege. The city has offered no proof that the records consist of "the mental impressions, conclusions, opinions or legal theories of an attorney or other representative" of the city concerning the appeal, thus qualifying for exclusion as attorney work-product.
In 00-ORD-10, the Attorney General held that a public agency improperly adopted a policy of blanket exclusion relative to records that arguably enjoyed protection under the attorney/client privilege, observing:
In construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals has observed:
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). Amplifying on this view, the Attorney General has stated:
97-ORD-41, p. 6. In the cited decision, this office suggested, by way of example, that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal,' and deny access on the basis of KRS 61.878(1)(l) and KRE 503 as privileged lawyer client communication which was not disclosed to third persons." 97-ORD-41, footnote 2, p. 7.
00-ORD-10, p. 12.
We therefore find that although the city may properly withhold those records which satisfy the requirements of KRE 503 or CR 26.02(3)(a) relative to the appeal of the Planning Commission's action, it "cannot withhold every document which relates to [the] particular matter under KRS 61.878(1)(l) and the attorney/client work product doctrine simply because it is represented by an attorney in the matter." OAG 91-107, p. 4, citing OAG 88-25. The city is obligated to disclose all records that do not fall squarely within the parameters of the exception and to identify the records withheld and articulate the reasons for withholding the records in terms of the requirements of the privileges.
The city may not, however, withhold under the protections afforded by these privileges records relating to the decision to retain Mr. Broderick, the fee arrangement and billing records (subject to the narrow exception below), or the ledger containing the identities of donors. In OAG 92-14, this office engaged in a lengthy analysis of the scope of the attorney/client privilege in the context of fiscal arrangements, concluding that the City of Louisville improperly withheld attorney contracts and monthly invoices. It is instructive to quote a portion of that opinion:
In OAG 82-169, this office addressed the question whether the Jefferson County Public Schools could withhold, inter alia, Board records of payments to its attorney, and bills and statements submitted to the Board by its attorney, under KRS 61.878(1)[(l)] and the attorney/client privilege. There we concluded that generally the contracts, vouchers, and other business records of a public agency are open to public inspection under the Open Records Act.
. . .
This office implicitly rejected the argument that such records were protected by the attorney/client privilege and KRS 61.878(1)[(l)]. We affirmed this position in OAG 85-91, where we held that a public agency's denial of a request to inspect the contracts, retainer agreements, and other documents pertaining to the relationship between the agency and its attorneys was improper. In that opinion we expressly stated that failure to disclose records of payments, other than as contained in regular income and accounting records, was improper. OAG 85-91, at p. 3.
. . .
The Kentucky Supreme Court has recognized that communications relating to the fiscal arrangements between an attorney and his client do not fall within the attorney/client privilege. In Kentucky-Virginia States, Inc. v. Tackett, Ky., 182 S.W.2d 226 (1944), the court held that the terms and scope of employment are not communications made to an attorney in his professional character by the client. An attorney does not act as a legal adviser when communicating with the client about his fee, but instead acts in his own interest, representing himself exclusively. Tackett, supra at 230. This reasoning was adopted in United States v. Haddad, 527 F.2d 537 (6th Cir. 1975), wherein the Sixth Circuit held that amounts paid or owed to an attorney by his client are generally not within the attorney/client privilege.
Although it does not appear that either the Sixth Circuit or a Kentucky court has had occasion to address the question whether the underlying bills are privileged, in In Matter of Walsh, 623 F.2d 489 (7th Cir. 1980), the Seventh Circuit held that because matters involving the receipt of fees from a client and who paid the fees are not privileged, a grand jury was entitled to review the ledgers, bills, time records, and retainer agreements prepared by an attorney.
OAG 92-14, pp. 4, 5. See also, 95-ORD-18 (citing improperly withheld travel expense records relating to city attorney's trip to legal conference). However, we also recognized that because such records might disclose substantive matters pertaining to the rendition of legal services, an agency need only disclose the general nature of services rendered.
On the latter issue, the Attorney General observed:
We are not unmindful that these records may disclose substantive matters pertaining to the rendition of legal services. As the courts have noted, "[T]he only questions about substantive matters that must be answered are questions about the nature of the legal services rendered." United States v. Long, 328 F.Supp. 233, 236 (E.D.Mo. 1971). In Long, at 236, the court observed:
See also, Colton v. United States, 306 F.2d 633 (2d Cir. 1961). United States v. Cromer, 483 F.2d 99 (9th Cir. 1973). Thus, records which reflect the general nature of services rendered are not protected by the attorney/client privilege. Nor do we believe that such records are exempt under the exception for preliminary documents found at KRS 61.878(1)[(i)] and [(j)]. Only those records which disclose communications by the client or attorney in relation to the specific matter for which the attorney was retained can be withheld from public inspection.
OAG 92-14, p. 5.
These opinions are distinguishable in only one significant respect from the issue in the appeal before us. Whereas in the cited opinions, public funds were expended for the rendition of professional legal services, here the city's contract attorney will be compensated out of a "special fund" consisting of private donations. We do not believe that this fact alters the general analysis about, relative to the public right of access to records reflecting the city's decision to retain Mr. Broderick, the fee arrangement he entered into with the city, or billing records he submitted to the city. Nor do we believe, based on the cited authorities, that the privilege extends to the handwritten donor ledger maintained by the city.
Because the donors are private citizens, however, we believe that the city may wish to invoke KRS 61.878(1)(a) 4 as the basis for denying access to the identities of donors whose names appear on the ledger. In OAG 86-76, the Attorney General held that a private donor's desire for anonymity often outweighs the public's interest in disclosure. See also 94-ORD-1; 94-ORD-67. We concluded each of the cited opinions by holding that although the amount of pledges, contributions, or donations must be disclosed, the names of the donors could properly be withheld. 5 If the city wishes to pursue this course of action, it must do so by releasing a redacted copy of the handwritten donor ledger, and issuing a written statement in which it cites KRS 61.878(1)(a) and briefly explains the application of this exception to that portion of the record withheld, namely the donors' identities.
Adequacy of city's response
The final issue with which we are presented is whether the City of Oakland's response to Mr. Catron's request satisfied the requirements of KRS 61.880(1). That statute provides, in part:
An agency response denying, in whole or party, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
As noted above, the Kentucky Court of Appeals has declared that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents . . . ." Edmondson at 858. Where the requests for records are broadly worded, as were Mr. Catron's, and no records apparently exist that are responsive to some of those requests, the question becomes how specific the agency must be in denying the existence of the records requested. In responding to Mr. Catron's request, the city neither confirmed nor denied the existence of records responsive to, for example, request six relating to "the Warren County and/or Inter-Modal Transportation Authority's request to the Kentucky County Debt Commission for approval to issue mortgage revenue bonds, or any appeals from the County Debt Commission's approval of that request." Instead, the city provided him with the otherwise responsive records that could be located, and offered no written explanation for its inability to produce others.
In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. In OAG 91-101, the record requested from the University of Kentucky was specifically identified as "minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986." The agency's response neither admitted nor denied the existence of the minutes. We concluded that unless the agency was unable to determine whether the minutes exist, by virtue of the request's failure to identify with reasonable particularity the meeting at which the minutes were taken, it must advise him whether they exist.
In 96-ORD-101, we were asked to determine if a request for "such records as will provide the basis for . . . [the] statement, as referenced in the . . . Courier-Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $ 316,250 over the past five years" was sufficiently specific to require an unequivocal response. Noting that the requester had not requested a specific record, but had instead made an "open-ended any-and-all-records-that-relate type of request," we held that the city's general denial was appropriate. We observed:
Because [the requester] did not identify a specific record or records which he wished to inspect, or describe such records with reasonable particularity, the city could not advise him whether they exist. To paraphrase an earlier open records decision, [the requester's] request was so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass.
96-ORD-101, p. 3, citing OAG 91-58, p. 4. "To require an unequivocal denial of a nonspecific request for records," we concluded, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." 96-ORD-101, p. 3.
Having reviewed Mr. Catron's requests, we find that although they were not sufficiently specific to warrant an unequivocal response, the City of Oakland was legally obligated to conduct an adequate search, and if that search proved unproductive, to issue a general denial, in writing, of those requests for which no responsive records exist. To the extent that the city failed to do so, its response to Mr. Catron's request did not satisfy the requirements of KRS 61.880(1).
Conclusion
In sum, we find that although the City of Oakland issued a timely written response to Mr. Catron's request, that response was deficient insofar as it did not reflect an adequate search for responsive records; that the statutory basis advanced for partially denying access to requested records was not supported by proof, or was in some instances legally unsupportable; and that it did not contain at least a general denial of the existence of records responsive to Mr. Catron's broadly worded requests but not produced. While we have no reason to doubt that the city has acted in good faith in attempting to comply with the Open Records Act, we do not believe its statutory obligations will be fully discharged until it reviews and corrects its action consistent with the position set forth above.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3) , the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Elizabeth J. McKinneyWyatt, Tarrant & Combs, LLPP.O. Box 1220Bowling Green, KY 42102-1220
Stephen B. CatronWyatt, Tarrant & Combs, LLPP.O. Box 1220Bowling Green, KY 42102-1220
Billy Mansfield, MayorCity of OaklandP.O. Box 122105 Main StreetOakland, KY 42159-0122
David F. BroderickBroderick & ThorntonAttorneys at Law921 College Street - Phoenix PlaceP.O. Box 3100Bowling Green, KY 42102-3100
Footnotes
Footnotes
1 Mr. Catron's firm's client.
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2 By agreement, the deadline for agency response was extended from three business days to four business days.
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3 Discussions pertaining to the Airpark have been conducted since at least 1998, as evidenced in City of Oakland Resolution 98-99-01.
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4 KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
5 The issue of access to records reflecting private donors' identities is currently before the Kentucky Court of Appeals. University of Louisville Foundation v. Cape Publications, Inc. d/b/a The Courier-Journal, 2002-CA-1590.
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