Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the State Board of Elections ("Board") violated the Open Records Act in the disposition of Jessica Huseman's request for attorney billing records. For the reasons that follow, we find that the Board violated the Act by failing to state the statutory exceptions and provide a brief explanation for the redactions it made on the copies it provided. We further find that the Board violated the Act by failing to respond to a follow-up request for records in digital format, and by placing watermarks and page numbers on the copies of billing records provided to requester. We find that the redactions to the billing records were proper, and that the copying fee for records provided in hard copy was not a violation of the Act where the request did not designate digital format.
Ms. Huseman ("Appellant") emailed a request to the Board on February 8, 2019, requesting "all billing statements and invoices from Luke Morgan or any member of the McBreyer firm sent to the SBE from 12/1/2018 to present." She requested that the Board notify her if the copying fees should exceed 30 dollars ($ 30).
The Board provided 45 pages of legal billing records on March 15, 2019. 1 The cover letter for that response stated that responsive records were withheld to the extent that they "constituted preliminary drafts, notes, correspondence with private individuals, preliminary recommendations, privileged communications, or any other exception provided for in KRS 61.870 to 61.884 [.]" Portions of the billing records reflecting "services rendered" were redacted, merely leaving terms such as "worked on," "revise," "multiple calls and emails with," but redacting further details of the work. The hours billed and amounts billed were not redacted.
On March 18, 2019, Ms. Huseman e-mailed the records custodian and inquired, "I received three responses today. I would appreciate receiving digital copies of all requests. It is clear that -- at some point -- these were digital files, as they are numbered and watermarked." The Board did not respond to this e-mail.
Appellant appealed to this office on April 4, 2019, alleging that the Board failed to identify the records withheld; failed to state the exemptions, or provide a detailed explanation, for the records withheld or redacted; improperly added watermarks and page numbers to the copies; and ignored her request that records be provided in digital format. 2 She also asked this office to assess fines against the Board if we found that the Board willfully withheld the records in violation of the Act.
On April 22, 2019, the Board responded to this appeal, asserting that its actions were proper. We subsequently requested a copy of all withheld records for in camera review pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3; the Board provided the records for our review.
Board's Initial Responses Violated KRS 61.880(1) . In response to Appellant's request for billing records, the Board responded:
The records that are responsive to your request and that are within the care, custody and control of this agency are included herein. To the extent the records you requested constituted preliminary drafts, notes, correspondence with private individuals, prelimin-ary recommendations, privileged communications, or any other exception provided for in KRS 61.870 to 61.884, they have been excluded from your application.
KRS 61.880(1) 3 requires a public agency provide "a statement of the specific exception authorizing the withholding of the record[.]" The Board failed to cite KRS 61.878(1)(i), (j), or (l) in its response, the three exemptions in the Act to which the Board's response apparently alludes. 4 KRS 61.880(1) also requires the agency to provide "a brief explanation of how the exception applies to the record withheld [.]" The Board did not provide the brief explanation required by the statute.
In
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996), the Court of Appeals found that KRS 61.880(1) requires the agency "to provide particular and detailed information in response to a request for documents," admonishing the public agency for its "limited and perfunctory response." In 2013, the Supreme Court reaffirmed this view, declaring that an agency's denial must be "detailed enough to permit [the reviewer] to assess its claim and the opposing party to challenge it."
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 82 (Ky. 2013). To explain how an asserted exception applies, as required by KRS 61.880(1), the agency must adequately identify and describe the withheld record. Otherwise, the agency cannot meet its burden of proof under KRS 61.880(2)(c). 5 The Board failed to satisfy its burden as it did not identify which exception applies to which record(s), and the only explanation that it did provide was overbroad and lacking in specificity.
In its response to Appellant's open records request, the Board did not specifically cite to KRS 61.878(1)(i) and (j) (commonly known as the "preliminary exceptions") where it withheld records that it claimed "constituted preliminary drafts, notes, correspondence with private individuals, preliminary recommendations, privileged communications, or any other exception provided for in KRS 61.870 to 61.884." On appeal, the Board did specifically cite to KRS 61.878(1)(i) and (j), but did not explain the application of those exceptions to the redacted records. Without some explanation of how the preliminary exceptions apply, we find that the Board violated the Act in failing to justify its redactions under the preliminary exceptions.
Request for Digital Copies . Appellant received the records responding to her request for billing records on March 15, but on March 18 sent an email to the Board stating that she "would appreciate receiving digital copies of all requests." The Board did not respond to this request and we find that it violated the Act by failing to do so. This communication constituted a new open records request, to which the Board was obliged to respond within three days, excluding weekends and legal holidays. KRS 61.880(1). "A failure to respond to an open records request is tantamount to a denial of the request without specific basis." 05-ORD-176 (citing 02-ORD-116). Accordingly, the Board's lack of response to the e-mail constituted a violation of the Act.
Watermarks on Copies . We find that the Board violated the Act when it provided Appellant copies of responsive records altered with page numbering stamps and watermarks. The Act creates the right to inspect public records and the right to receive copies of public records by mail. KRS 61.872(2); KRS 61.874(1); KRS 61.872(3)(b). KRS 61.874(1) states, "the custodian of the records shall duplicate the records or permit the applicant to duplicate the records[.]"
The Act's only exception to this right is a public agency's duty to redact excepted material or information. As KRS 61.878(4) states, "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." In discharging this duty to redact, public agencies often create a duplicate of the original record, make appropriate redactions, and disclose the redacted record. 14-ORD-229, p. 4. The agency satisfies its duty under KRS 61.872(2), and KRS 61.872(3)(b), as well as KRS 61.878(4), by affording the requester access to the redacted copy of the original record. Id. The Act does not otherwise permit a public agency to redact, alter, or mark copies of responsive public records. Accordingly, we find that the Board violated the Act by altering the responsive records in a manner beyond the limitations of KRS 61.878(4).
Attorney-Client Privilege . On appeal, the Board argues that its response to Appellant complied with KRS 61.880 "because it included a statement of specific exemptions authorizing the withholding or redacting of records--here, the 'preliminary drafts, notes, or correspondence with private individuals' and 'preliminary recommendations and memoranda' exceptions in KRS 61.878(1) and (j), and the attorney-client privilege ." (Emphasis added). The Board failed to cite the specific exception of the Act that permits withholding records protected by the attorney-client privilege, which we find is a procedural violation of the Act. Despite the Board's failure to cite the specific exception relevant to the attorney-client privilege, it has raised the issue of whether its redactions of the billing records are justified under the attorney-client privilege.
KRS 61.878(1)(l) exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." "The protections generally afforded by the attorney-client privilege have been recognized and incorporated into the statute by the Kentucky General Assembly."
Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). 6 However, "the attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions."
Commonwealth, Cabinet for Health and Family Servs. v. Scorsone, 251 S.W.3d 328, 330 (Ky. 2008). KRS 61.878(4) also provides that "if any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
In Scorsone , State Senator Ernesto Scorsone sought billing records from non-government attorneys for Governor Fletcher's Administration, including "the date of each service performed, a description of the service, the identity of the attorney performing such service, the hourly rate charged for that attorney, the time spent by that attorney on that service, any reimbursable expenses, total amounts incurred and total amounts due for their services." 251 S.W.3d, at 329. "The Fletcher Administration partially complied with Senator Scorsone's request by tendering its attorney billing statements relating to the investigation, but redacting from them the descriptions of the particular services rendered on the grounds that they are protected by attorney-client privilege." Id. This office held that "blanket redaction of descriptions of particular services rendered from the billing statements was improper. . . . Redaction is only proper where a particular description of a service rendered would disclose privileged matters." Id. The circuit court "generally agreed with the Attorney General's opinion." Id.
On appeal, the Court of Appeals held:
. . . we cannot imagine that each and every description of services rendered contained in billing statements prepared by non-government lawyers during the Attorney General's investigation falls under the attorney-client privilege.
Thus, we find that the Attorney General and the circuit court are both correct in rejecting the Administration's blanket redaction of all descriptive portions of the disclosed billing records without particularized demonstration that each description is privileged.
Id. The Scorsone court thus expressly rejected blanket redaction of attorney billing statements.
Following Scorsone , this office has repeatedly held that blanket redactions of attorney billing statements are impermissible. See , e.g., 10-ORD-142; 09-ORD-075. We have held that a public agency "need only permit inspection of records which describe, in general terms, the nature of the services rendered as, for example, 'research,' 'witness interviews,' 'discussion with client.'" 09-ORD-055. See also 05-ORD-029; 01-ORD-56. However, "the general rule is well established that information regarding a client's fees is not protected by the attorney/client privilege because the payment of fees is not a confidential communication between the attorney and client." OAG 92-92 (citing cases). See also 09-ORD-055; 05-ORD-049; 01-ORD-56 ("Information regarding fees is not generally protected by the attorney-client privilege . . . .").
In this case, the Board has not redacted the general terms describing the services provided, the hours charged, or the billing amounts, but has redacted the more specific descriptions that we infer the Board claims are protected by the attorney-client privilege. 18-ORD-113. Under these circumstances, we find that the Board's redactions of the billing statements are justified under KRS 61.878(1)(l) and the attorney-client privilege.
Copying Costs . Appellant further argues that she should not have been charged any copying fee at all, in light of her March 18, 2019, request to receive the records in digital form. Pursuant to KRS 61.874(2)(a), public records "shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. " Where a party specifically requests electronic copies of electronic records, a public agency may not impose a fee for making paper copies. 19-ORD-087; 14-ORD-148. Here, however, Appellant's original February 8, 2019, request did not specify electronic copies. Indeed, in light of her express reference to the possibility that copying fees might exceed 30 dollars ($ 30), the Board properly understood her request as one for paper copies, and complied with that request on March 15, 2019. Therefore, we find no violation or subversion of the Act as to the copying charge.
Request that Fines Be Assessed Against the Board . Appellant requested that this office assess fines against the Board if it finds that records were willfully withheld. The Board correctly responded that such fines may only be assessed by a circuit court pursuant to KRS 61.882(5), which states in relevant part: "In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($ 25) for each day that he was denied the right to inspect or copy said public record. " This office may not assess such fines and we need not address this request further.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 The March 15 letter mentions two earlier responses that it sent to Appellant on February 13 and February 28 regarding her request, but because those letters are not part of the record on appeal, we cannot determine whether the Board complied with the requirements of KRS 61.872(5) to extend a public agency's response time past the three business days allowed under KRS 61.880(1). The timeliness of the response, however, was not an issue raised on appeal.
2 Appellant claimed that she had been charged for blank pages, but our inspection of the records provided to her revealed no blank pages; therefore we will not further address this claim.
3 In pertinent part, KRS 61.880(1) states: "An agency response denying, in whole or in part, inspection of any record 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."
4 KRS 61.878(1)(i), (j), and (l) allow public agencies to withhold, respectively:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended; and
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]