23-ORD-077
April 3, 2023
In re: Mark Payne/Northern Kentucky University
Summary: Northern Kentucky University (“the University”) did not
violate the Open Records Act (“the Act”) when it withheld entirely
emails that are exempt under the Act.
Open Records Decision
Mark Payne (“the Appellant”) submitted to the University a request to inspect
all emails sent to or received by the former president between October 17 and
November 17, 2022. This Office previously found the University’s initial response to
his request violated the Act because it delayed access to responsive records without
properly invoking KRS 61.872(5). See 23-ORD-004. After the Appellant initiated his
original appeal, the University produced 629 responsive emails, but withheld others
under various exceptions. Because the University’s denial presented new issues on
appeal, the Office’s review was limited to the University’s initial procedural violation.
The Office noted the Appellant could initiate a new appeal to challenge the merits of
the University’s denial by providing a copy of his original request and the University’s
final denial. The Appellant exercised that option, and brings this appeal to challenge
the University decision to withhold several emails under KRS 61.878(1)(i), (j), (r), and
the attorney-client privilege. He also argues that, even if the content of the withheld
emails is exempt, KRS 61.878(4) requires the University to redact the body of the
emails and provide the “headers” containing the sender, recipient, subject, and the
date and time when the email was sent or received.If an agency denies a request to inspect records, its written response must
“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.”
KRS 61.880(1). Although KRS 61.880(1) requires the explanation in support of denial
to be “brief,” the response cannot be “limited and perfunctory.” Edmondson v. Alig,
926 S.W.2d 856, 858 (Ky. App. 1996). In Edmondson, the agency’s response to a
request
stated
only
that
“the
information
you
seek is
exempt
under
KRS 61.878(1)(a)(k)(l) [sic].” Id. The agency failed to explain how any of the three
exemptions applied to the records withheld, and for that reason, the court held, it
violated KRS 61.880(1). Id.
Kentucky courts have refined the level of detail KRS 61.880(1) requires for a
“brief explanation” in support of a denial. As stated by the Supreme Court of
Kentucky, an agency is not “obliged in all cases to justify non-disclosure on a line-by-
line or document-by-document basis.” City of Ft. Thomas v. Cincinnati Enquirer, 406
S.W.3d 842, 851 (Ky. 2013). Rather, “with respect to voluminous [open records]
requests . . . it is enough if the agency identifies the particular kinds of records it
holds and explains how [an exemption applies to] the release of each assertedly [sic]
exempt category.” Id. (discussing the “law enforcement exception” under
KRS 61.878(1)(h)). Of course, “if the agency adopts this generic approach it must itself
identify and review its responsive records, release any that are not exempt, and
assign the remainder to meaningful categories. A category is meaningful if it allows
the court to trace a rational link between the nature of the document and the alleged”
exemption. Id. (quotation omitted). The Court also has acknowledged the Act must
be “workable.” Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013).
As a result, when certain types of information that are routinely kept in public
records are routinely exempt, an agency “need not undertake an ad hoc analysis of
the exemption’s application to such information in each instance, but may apply a
categorical rule.” Id.
The takeaway from these decisions is that—at least with respect to voluminous
requests—an agency must break up responsive records into meaningful categories
and explain how the exemptions cited for each category of records applies.
Here, in response to the request, the University provided 629 responsive
emails. However, on December 5, 2022, the University informed the Appellant it was
withholding “any records containing preliminary drafts and notes not intended to
give notice of final University action and preliminary recommendations and
memoranda in which opinions are expressed or policies formulated or recommendedpursuant to KRS 61.878(1)(i) and KRS 61.878(1)(j), respectively.” The University also
withheld “any records containing legal opinions or advice given by [the University’s]
General Counsel as such records are protected by the attorney-client privilege.
KRS 61.878(1)(k) and KRE 503.” The University’s December 5, 2022 description of
the records withheld did not provide sufficient detail about the records withheld to
permit the Appellant to determine whether the claimed exceptions applied. However,
when the Appellant challenged the University’s claimed exceptions, the University
sent another response on December 9, 2022, in which it more fully described the
records withheld and how the claimed exceptions applied to them.
In its December 9, 2022 response, the University separated the records into
meaningful categories by the exemption it claimed applied to each category. For each
category, the University gave brief explanations of the contents of the records. It
described the records it was withholding under KRS 61.878(1)(i) as “internal
discussion, draft Q&As, draft timelines, draft talking points, and related material
pertaining to the Governor’s Scholars Program, Charter Schools, potential real estate
transactions, potential personnel actions still under consideration, and future
potential partnerships with area leaders and businesses.” The University further
stated it had not taken final action with respect to any of these drafts.
The University described the records it withheld under KRS 61.878(1)(j) as
emails containing “opinions, advice, and feedback regarding the Governor’s Scholars
Program, Charter Schools, potential personnel actions still under consideration,
potential real estate transactions, implementation of the Faculty Voluntary
Separation Program, and University Repositioning items still under consideration.”
Again, the University stated no final action had occurred with respect to any of these
topics.
With respect to these two categories, the University’s December 9 response
complied with KRS 61.880(1) because it described the records withheld and explained
such records remained exempt because no final action had been taken with respect
to these emails. Moreover, the University properly relied on KRS 61.878(1)(i) and (j)
to withhold these emails. Long ago this Office recognized:
Not every paper in the office of a public agency is a public record subject
to public inspection. Many papers are simply work papers which are
exempted
because
they
are
preliminary
drafts
and
notes.
KRS 61.878(1)[(i)]. Yellow pads can be filled with outlines, notes, drafts
and doodlings which are unceremoniously thrown in the wastebasket orwhich may in certain cases be kept in a desk drawer for future reference.
Such preliminary drafts and notes and preliminary memoranda are part
of the tools which a public employee or officer uses in hammering out
official action within the function of his office. They are expressly
exempted by the Open Records Law and may be destroyed or kept at
will and are not subject to public inspection.”
OAG 78-626 (emphasis added). More recently, the Office reaffirmed the purpose of
the preliminary exceptions are “[t]o preserve the integrity of a public agency’s
internal decision making process by promoting full and frank discussion between and
among public employees and officials and by equipping them with the tools needed in
hammering out official action.” 14-ORD-014; see also 22-ORD-176 n.6 (finding it
would be unreasonably burdensome to sort through and redact 16,000 Microsoft
Teams messages that all were exempt as notes under KRS 61.878(1)(i)). Accordingly,
the University did not violate the Act by denying inspection of these emails under
KRS 61.878(1)(i) and (j).
The University also withheld emails under the attorney-client privilege. It
described these emails as “correspondence between University faculty, staff, and
administrators and the University’s General Counsel sent for purposes of seeking and
receiving legal advice regarding requirements pertaining to budget and employment
matters.” The attorney-client privilege protects from disclosure “confidential
communication[s] made for the purpose of facilitating the rendition of professional
legal services to [a] client.” KRE 503(b). “A communication is ‘confidential’ if not
intended to be disclosed to third persons other than those to whom disclosure is made
in furtherance of the rendition of professional legal services to the client or those
reasonably necessary for the transmission of the communication.” KRE 503(a)(5).
KRS 61.878(1)(l) operates in tandem with KRE 503 to exclude from inspection public
records protected by the attorney-client privilege. Hahn v. Univ. of Louisville, 80
S.W.3d 771 (Ky. App. 2001). Here, the University has provided a sufficient, although
minimal, description of the topic of the emails to determine whether the attorney-
client privilege applies. Specifically, the University stated the emails were exchanged
between University employees and its General Counsel for the purpose of obtaining
legal services related to “budget and employment matters.” Accordingly, the
University did not violate the Act by withholding these emails under the attorney-
client privilege.
Finally,
the
University
described
the
emails
it
withheld
under
KRS 61.878(1)(r), which exempts from inspection “[c]ommunications of a purelypersonal nature unrelated to any governmental function,” as emails that “include
personal, non-University related, conversations between the President and private
individuals and correspondence related to the President’s service on various boards
as a private individual.” Here, the University explained the emails were sent by the
former President in his capacity as a private individual, in which he discussed
matters unrelated to his governmental role as a University President. Accordingly,
the University did not violate the Act in withholding these emails.
Nevertheless, the Appellant argues KRS 61.878(4) requires the University to
redact all of these emails, notwithstanding their exempt status, and provide the
“headers,” which he describes as the names of the sender and recipient, the dates,
and the subject lines of the emails. Under KRS 61.878(4), “[i]f 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.”
However, the information the Appellant demands the University separate from the
emails is itself exempt. As stated previously, the purpose of KRS 61.878(1)(i) and (j)
is to allow employees to freely communicate thoughts and ideas. The same is true
with respect to attorney-client communications. Thus, the subject lines of emails
describing the contents of opinions, drafts, or legal advice is part and parcel of the
drafts and opinions expressed in the email. And although the identities of those who
authored such drafts or expressed such opinions may not divulge as much information
as the subject line, the release of such information could still burden the agency’s
ability to engage in frank discussions. The same is true in the context of attorney-
client communications, as it could reveal who sought the legal advice. And with
respect to purely private communications exempt under KRS 61.878(1)(r), the email
and all of its parts is the “communication” that is exempt.
Moreover, if taken to its logical conclusion, the Appellant’s theory would result
in no agency ever being able to withhold any public record from inspection in its
entirety. Every public record will contain some “material” that is not exempt. Some
examples include page numbers, letterheads, and yes, dates. It would be untenable
to require public agencies, in response to every request to inspect records they receive,
to produce in redacted form otherwise exempt public records simply because they
contain dates or page numbers. This is especially true when it comes to emails, the
numbers of which can reach thousands depending on the breadth of the request.
Accordingly, the University did not violate the Act by withholding in their entirety
records that are exempt from inspection.A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#034
Distributed to:
Mark Payne
Jacqueline N. Graves