Opinion
Opinion By: Andy Beshear,Attorney General;La Tasha Buckner,Executive Director
Open Records Decision
Lawrence Trageser appeals the City of Taylorsville's partial denial of his December 7, 2015, request for "all records reflecting [a former city employee's] . . . open records request on or about 9/18/15." The records identified in Mr. Trageser's December 7, 2015, request include:
1) Any "'info' or documents dropped off by [the named former employee . . . between 9/8/2015 and 9/22/2015 dealing with his open records request;"
2) "the court order dealing with or providing guidance in responding to [the named former city employee] open records request during this period;"
3) the written response to [the named former city employee's] open records request; and
4) "all emails and written communication . . . between city clerk Steve Biven, counselor Dudley Dale, [the named former city employee]" or any other person "assisting the City of Taylorsville" in responding to [named former city employe'se] open records request.
The city promptly responded to Mr. Trageser's request by providing him with a copy of [the named former city employee's] request and redacted email exchanged by [the named former city employee] and Mr. Biven on September 10, 2015. In support of the partial denial of Mr. Trageser's request for emails, the city invoked KRS 431.076, KRS 61.878(1)(a), and KRS 61.878(1)(l). The city denied Mr. Trageser access to all emails relating to [the named former city employee's] request exchanged by the city attorney and the city or its city clerk under authority of KRS 61.878(1)(l), the attorney client privilege, and Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2002). The city also denied custody of "any court order as described in [Mr. Trageser's] request." 1 On appeal, Mr. Trageser challenges the city's partial denial of his request, noting that previously obtained billing records reflect that on September 10, 2015, the city attorney "Reviewed Court Order," that on September 14 he "Discussed Order with Commission in Executive Session at Special Meeting," and that on September 16 he "Reviewed and Discussed Court Order." 2
In response to Mr. Trageser's allegations, the city advised:
[N]either the City nor the City Clerk ever had possession of the order nor saw the order, a copy of which [the named former city employee] presented to the City's contract legal counsel in September 2015, to review, as privileged and confidential, for legal counsel to give advice to the City and the City Clerk regarding a court order issued pursuant to KRS 431.076 which declared any records pertaining to [the named former city employee] regarding certain matters expunged, in essence, records which may have existed but are to no longer exist; presumably, records such as prior employment applications, background checks etc. and possibly the order itself.
Focusing on the dilemma Mr. Trageser's request posed vis -`-vis the conflicting requirements imposed by KRS 431.076 and KRS 61.880(1), the city explained its decision to neither admit nor deny the existence of the court order in its original response, and to redact portions of emails in which the order was discussed, pursuant to KRS 61.878(1)(a), KRS 61.878(1)(l), and KRS 431.076.
We appreciate the dilemma the City of Taylorsville encountered in responding to Mr. Trageser's original request and agree that there is little to guide public agencies in this regard. Nevertheless, this office must discharge its duties under KRS 61.880(2) by determining whether the City of Taylorsville properly responded to Mr. Trageser's December 7 open records requests. The beneficiary of the expungement order inadvertently left the order with the city clerk as he tried to make sure it was complied with by the affected agencies. Under these circumstances, the city could neither admit nor deny receipt of the order, but could assert that, if a copy of the order was in its custody, KRS 61.878(1)(l) 3 and KRS 431.076 4 restricted disclosure. [The named former city employee] presented the order to the city in an effort to secure expungement of records relating to him. KRS 431.076(4) mandates the expunging of all records subject to the terms of the order, including the expungement order itself, and is incorporated into the Open Records Act by KRS 61.878(1)(l). Consistent with the intent of the Expungement Act, the City of Taylorsville properly responded to this portion of Mr. Trageser's request.
With reference to the emails exchanged by [the named former city employee], Mr. Biven, and Mr. Dale that were released to Mr. Trageser after redaction, we find as follows:
1) The September 10, 2015, email from [named former city employee] to Biven "constitute[s] preliminary discussions regarding a scheduled meeting to continue the conversation," and the redactions are proper under KRS 61.878(1)(i) and (j) inasmuch as "piecemeal disclosure along the path of the decision-making process is not mandatory. " University of Louisville v. Sharp, 416 S.W.3d 313, 315-316 (Ky. App. 2013);
2) The September 10, 2015, email thread from Dale to Biven constitutes "a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client," and the redactions are proper under KRE 503(b) and KRS 61.878(1)(l) as construed in Hahn v. University of Louisville, 80 S.W.3d 771, 775-76 (Ky. App. 2001).
We therefore affirm the City of Taylorsville's partial denial of Mr. Trager's December 7 request as it relates to email.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 In so doing the city asserted that, if it maintained such a court order, the court order would be exempt under KRS 431.076 and KRS 61.878(1)(l).
2 Mr. Trageser raises several issues relating to the validity of the expungement order under KRS 431.76. As he anticipates, we are not empowered to address these issues under our KRS 61.880(2) grant of authority and decline to do so.
3 KRS 61.878(1)(l) 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[.]"
4 KRS 431.076(4) provides:
If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the motion and order the expunging of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records. The court shall order the expunging on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required expunging action has been completed. All orders enforcing the expungement procedure shall also be expunged.