Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Murray State University ("Murray State") violated the Open Records Act by denying residential college sign-in logs as not reasonably identified in the request, and denying other documents on the grounds of attorney-client privilege and attorney work product. We find that Murray State did not violate the Open Records Act by denying residential college sign-in logs as not reasonably identified in the request, and denying other documents on the grounds of attorney-client privilege and attorney work product.
Tim Stone ("Stone") submitted an open records request to Murray State on Oct. 14, 2013. Stone requested the following records to be made available for inspection and/or copying:
ALL records of the incident involving my animal at the Residence College. This request includes all records of the allegation, investigation, interviews, notes, audio recordings, phone records, final reports and resolution up to the last record of my receiving paperwork from Rachel Smothers Clark.
Please have ALL records of the investigation notes, witness lists, phone records, audio recordings created after the moment I received the paperwork from Rachel Smothers Clark.
Please have all records that contain my name or that can be reasonably determined to mention or refer to me, in the possession of the Department of Student Housing including employee Rachel Smothers Clark.
Murray State timely responded on Oct. 17, 2013. In its response, Murray State stated that "it is our understanding that Request Nos. 1 and 2 relate to documents generated in connection with the 'dog in the building' incident dated October 8, 2013." In response to those requests, Murray State provided six different documents (with personal information of other students redacted). In response to the request for all records containing his name or that could reasonably be determined to refer to him, Murray State provided thirteen files and documents. Murray State further added that "we have not included rosters which provide listings of students residing in the Residential Colleges. If same is desired, please advise. Please also note that any documents from the General Counsel's Office will not be provided based on attorney work product/ attorney client privilege."
Stone initiated this appeal on Nov. 19, 2013. He began his appeal by commending Murray State's response as "timely, extremely organized and laid out in an exemplary fashion that I found extremely easy to navigate," and praised the response and public service of Murray State's counsel. However, Stone objected that "visitor sign-in logs" created when a resident brings a visitor into the residential college were not provided. Stone also objected that records stored in the attorney's office were not privileged attorney client records on the grounds that "nothing has happened that would require confidential work product to be generated." Murray State responded on Dec. 3, 2013 that Stone did not request the sign-in logs with reasonable particularity, and that the documents in its counsel's office were in fact privileged. Pursuant to KRS 61.880(2)(c) , on Dec. 3, 2013, this office requested the documents which Murray State claimed were privileged for in camera review, and Murray State provided them that day. 1 At issue is whether Murray State properly withheld residential college visitor sign-in logs and documents in the possession of its counsel.
Regarding the visitor sign-in logs, Stone requested all documents relating to the incident involving his animal at the residence college, and all documents that contain his name or could reasonably be determined to refer to him. Stone requested that the documents be available for either inspection or copying. While KRS 61.872(3)(b) requires that if a person requires copies of public records through the mail, the person must precisely describe the public records which are readily available, there is no such particularity requirement when the request is for inspection of records.
Com. v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). Following Chestnut , this office has held that a request for documents need only be adequate for a reasonable person to ascertain the nature and scope of the open records request. Id. ; 13-ORD 154; 12-ORD-082. In this case, we do not find that Stone's request was adequate for a reasonable person to ascertain that its scope included visitor sign-in logs. Nowhere in his request did Stone specify that he requested the visitor sign-in logs, or that the sign-in logs were related to the incident involving his animal at the residence college. While it may be possible that Stone's name appears on the sign-in logs, his name presumably may appear in myriad other school logs and documents, and Murray State cannot reasonably ascertain on demand each and every instance when Stone's name appears on any document created or maintained by the school. We find that Stone's request does not meet even the minimal particularity requirement of Chestnut that it be adequate for a reasonable person to ascertain its nature and scope. 2 Accordingly, Murray State did not violate the Open Records Act in failing to provide residence hall sign-in logs in response to Stone's general request for documents.
Regarding the documents in the possession of Murray State's counsel, we have reviewed the documents in question. They are correspondences between Murray State's counsel and administration, and notes created by counsel regarding the incident. They were created for the purposes of providing legal counsel to the university in the scope of employment for the client. We find that they are protected by attorney-client privilege and attorney work product, and therefore not subject to disclosure under the Open Records Act. KRS 61.878(1)(l); KRE 503;
Hahn v. University of Louisville, 80 S.W.3d 771, 776 (Ky. Ct. App. 2001); 10-ORD-125. Accordingly, Murray State did not violate the Open Records Act in refusing to provide communications involving counsel and documents produced by counsel.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Tim StoneJill HuntJohn Rall
Footnotes
Footnotes
1 In accordance with the confidentiality requirement of KRS 61.880(2)(c) and 40 KAR 1:030 § 3, those documents have been destroyed at the time this decision is rendered.
2 Murray State indicated in its response that "if a proper request for such a record is made, Murray State will respond." We take this to mean that Murray State may possibly provide any visitor's logs that Stone requests, if the request is done with sufficient particularity and the records are made available under the Open Records Act.