24-ORD-038
February 20, 2024
In re: Robert Mattheu/Boyle County Board of Education
Summary: The Boyle County Board of Education (“the Board”) violated
the Open Records Act (“the Act”) when it partially denied a request for
records without explaining how the cited exceptions applied to the
records it withheld. On appeal, the Board met its burden of proof that
certain records were exempt from disclosure under KRS 61.878(1)(i) or
protected by attorney-client privilege. The requester did not present a
prima facie case that the Board failed to conduct an adequate search or
failed to provide all responsive nonexempt records.
Open Records Decision
On October 25, 2023, Robert Mattheu (“Appellant”) submitted a request to the
Board for copies of all emails sent “to or from” 16 named individuals between March
29 and October 20, 2023, containing certain keywords. In response, the Board
provided approximately 3,900 pages of emails “with the exception of communications
with [the Board’s attorney] that are exempt due to the attorney-client privilege,
redaction of any personally identifiable information,[1] and items pursuant to
KRS 61.878(1)(j).”2 This appeal followed.
1
The Appellant has not objected to the redaction of “personally identifiable information.”
2
The Appellant’s original request was the subject of a previous appeal, 23-ORD-336. The Appellant
appealed the District’s initial response for, among other things, imposing an excessive fee for electronic
records. During that appeal, the District issued a revised response on November 30, 2023. Then,
following the decision in 23-ORD-336, the District issued another revised response to the Appellant’s
request on December 21, 2023, which is the subject of this appeal. Although the December 21 response
makes reference to the District’s earlier November 30 response, that prior response contained no
further details regarding the records withheld by the Board. The Office notes that, although the
Appellant did not provide a copy of the November 30 response with this appeal, it is part of the
administrative record in 23-ORD-336. Ultimately, the Appellant is challenging the District’s most
recent response, not its previous one, and therefore, the Appellant has properly perfected his appeal
by providing a copy of his request and the agency’s response that he is challenging. See
KRS 61.880(2)(a).When a public agency denies a request under the Act, it must give “a brief
explanation of how the exception applies to the record withheld.” KRS 61.880(1). The
agency’s explanation must “provide particular and detailed information,” not merely
a “limited and perfunctory response.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky.
1996). “The agency’s explanation must be detailed enough to permit [a reviewing]
court to assess its claim and the opposing party to challenge it.” Ky. New Era, Inc. v.
City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). Here, the Board merely stated
that some records were exempt under KRS 61.878(1)(j), but it did not identify those
records or explain how the exception applied. Thus, the Board violated the Act.
On appeal, the Board explains that all the records it withheld under
KRS 61.878(1)(j) were preliminary drafts of “final form documents [that] were
provided.” The exception the Board should have cited is KRS 61.878(1)(i), which
exempts from disclosure “[p]reliminary drafts, notes, [and] correspondence with
private individuals, other than correspondence which is intended to give notice of
final action of a public agency.” Preliminary drafts do not lose their preliminary
status when the public agency takes final action. See 21-ORD-089. Therefore,
although the Board cited the wrong exception, it did not violate the Act when it
withheld records that are exempt from disclosure under KRS 61.878(1)(i).
The Board’s initial response likewise failed to explain in detail how the
attorney-client privilege applied to the communications with its attorney. 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). The privilege applies to
communications between a client or representative of a client and the lawyer,
KRE 503(b)(1), as well as between representatives of the client, KRE 503(b)(4).
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). However, when a party invokes the attorney-client
privilege to shield documents in litigation, that party carries the burden of proof. That
is because “broad claims of ‘privilege’ are disfavored when balanced against the need
for litigants to have access to relevant or material evidence.” Haney v. Yates, 40
S.W.3d 352, 355 (Ky. 2000) (quoting Meenach v. Gen. Motors Corp., 891 S.W.2d 398,
402 (Ky. 1995). So long as the public agency provides a sufficient description of the
records it has withheld under the privilege in a manner that allows the requester to
assess the propriety of the agency’s claims, then the public agency will have
discharged its duty. See City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842,
848–49 (Ky. 2013).Here, the Board violated the Act when its initial written response failed to
provide a description of the records with enough specificity to permit the Appellant
to assess the propriety of the Board’s invocation of the attorney-client privilege. On
appeal, however, the Board has corrected its initial violation by explaining that all
the withheld emails “relate to the rendition of legal services such as the interpretation
of a statute.” This description, while minimal, suffices to establish that the Board’s
attorney was acting in his capacity of rendering professional legal services to the
Board. Accordingly, the Board did not violate the Act when it withheld these disputed
emails under KRE 503.
Finally, the Appellant claims the Board did not provide all nonexempt emails
responsive to his request. The Board, however, claims it did. Once a public agency
states affirmatively that it does not possess any additional records, the burden shifts
to the requester to present a prima facie case that additional records do exist. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the
requester establishes a prima facie case that additional records do or should exist,
“then the agency may also be called upon to prove that its search was adequate.” City
of Fort Thomas, 406 S.W.3d at 848 n.3 (citing Bowling, 172 S.W.3d at 341). To support
a claim that the agency possesses responsive records that it did not provide, the
Appellant must produce some evidence that calls into doubt the adequacy of the
agency’s search. See, e.g., 95-ORD-96.
Here, the Appellant claims to have “discovered the existence of one document
that [he] should have received, but did not,” and is “concerned . . . that there may
have been more documents withheld in error or that do not meet the standard for
exemption.” The Board, however, claims it did provide him the document in question
and no further nonexempt records exist. The Office is unable to resolve factual
disputes between a requester and a public agency, such as whether the agency
provided a particular record. See, e.g., 21-ORD-163. Therefore, the Office cannot find
that the Board violated the Act in this case by failing to conduct an adequate search
or failing to provide additional records.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#31
Distributed to:
Mr. Robert Mattheu
Stephen Dexter, Esq.
Mark Wade, Superintendent