24-ORD-054
March 5, 2024
In re: Brandon Voelker/Ashland Independent School District
Summary: The Ashland Independent School District (“the District”)
violated the Open Records Act (“the Act”) when it denied a request for
records without explaining how the exceptions on which it relied applied
to each category of records withheld. However, the District did not
violate the Act when it denied a request for communications that are
exempt under the attorney-client privilege.
Open Records Decision
On behalf of his client, attorney Brandon Voelker (“the Appellant”) submitted
a request to the District for copies of “all emails, texts, or other communications
between any” District employees or the District’s agents related to the Appellant’s
client or his son.1 In response, the District provided responsive emails.2 However, the
District stated it “is not producing private text messages of District employees,
preliminary or investigative reports or memoranda, or communications between
District employees and counsel, as such documents are not considered public records
and/or are exempt pursuant to KRS § 61.878(1)(i), (j), (l), and/or (s).” It also stated
that communications between the District’s representatives and legal counsel “are
1
The Appellant also sought other records related to a private entity, which the District has provided
and are not relevant to this appeal. By separate request, the Appellant also asked for any
communications between the District’s employees related to two other individuals. However, the
Appellant did not provide the Office with a copy of that request. As such, any dispute related to the
Appellant’s second request is not properly before the Office. See KRS 61.880(2)(a) (requiring a person
seeking the Office’s review of an agency’s denial of a request to inspect records to provide a copy of
both the original request and the agency’s response). Regardless, the District states on appeal that is
does not possess any records responsive to the Appellant’s second request.
2
Although the Appellant submitted his request on December 28, 2023, the District did not respond
until January 26, 2024. It is not clear when the District received the Appellant’s request, but the
Appellant has not challenged the timeliness of the District’s response.subject to the attorney-client privilege and are also exempt under KRS § 61.878(1)(l)
and KRE 501.” This appeal followed.3
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 a “brief explanation” in support
of a denial KRS 61.880(1) requires. 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 Fort 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).
Here, the District’s initial response adequately explained some exceptions on
which it relied, but failed to adequately explain how, or to what records, other
exceptions applied. For example, the District denied the Appellant’s request to the
extent he sought any text messages contained on privately owned devices by
explaining that such messages are not “public records” within the meaning of
KRS 61.870(2) because they are not in the District’s possession or being used for any
official purpose. But the District did not state whether any responsive text messages
existed on District-owned devices, and, if so, why they were being withheld.
3
The District also stated the Appellant’s client had submitted a complaint with the Education
Professional Standards Board, which was still pending at the time of the Appellant’s request. As such,
to the extent the Appellant sought records related to that investigation, the District refused to produce
them as they “are also considered preliminary drafts, notes, and correspondence within the meaning
of KRS § 61.878(1)(i).” The District also withheld any communications maintained in its employees’
personnel files. The Appellant has not challenged these portions of the District’s response.On appeal, the Appellant does not challenge the District’s claim that text
messages on privately owned devices are not subject to inspection. However, the
Appellant correctly notes that, “to the extent the District has provided the phone
and/or is in possession of emails, text or other communications regarding District
Employees and [the Appellant’s client], they are required to be turned over.” The
Appellant argues that the District must possess some responsive text messages
because it also invoked the “preliminary” exceptions under KRS 61.878(1)(i) and (j).
Indeed, the District’s initial response lumped all categories of records together and
said they were all “exempt pursuant to KRS § 61.878(1)(i), (j), (l), and/or (s).” The
District’s initial failure to explain how each exception applied to each category of
record makes it difficult for the requester to determine the propriety of any of the
claimed exceptions. As such, the District’s “limited and perfunctory” response
violated the Act. Edmondson, 926 S.W.2d at 858.
On appeal, the District has clarified that it has only issued cell phones to three
of its employees. No responsive text messages exist on two of those cell phones.
However, the cell phone issued to the Superintendent does contain text messages
related to the Appellant’s client. Nevertheless, the District explains it is currently
involved in litigation with the Appellant’s client and all the responsive text messages
were exchanged between the Superintendent and the District’s legal counsel. As such,
the
District
claims
these
text
messages
are
privileged
attorney-client
communications.
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 toassess the propriety of the agency’s claims, then the public agency will have
discharged its duty.4 See City of Fort Thomas, 406 S.W.3d at 848–49.
Here, the District explains that it is involved in litigation with the Appellant’s
client and the Superintendent has communicated with legal counsel through text
messages. Although the District has not explicitly stated that the text messages were
exchanged to facilitate legal services in connection with that litigation, that
connection is clearly implied. Thus, the District’s explanation, although minimal, is
sufficient for the Office to conclude that the text messages it withheld are within the
scope of the privilege. Accordingly, it did not violate the Act by withholding them.5
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/ Marc Manley
Marc Manley
Assistant Attorney General
#51
Distributed to:
Brandon Voelker
Mitchell Hall, Jr.
Sean Howard
4
The District’s initial response merely stated that “communications between the District and its
representatives and [legal] counsel are subject to the attorney-client privilege and are also exempt
under KRS § 61.878(1)(l) and KRE 501.” However, the communications must be made for the purpose
of facilitating legal services. Thus, the District’s initial response was deficient because it drew no
connection between the communication withheld and the legal services being provided. Moreover, the
District did not clearly state it possessed such communications and was, in fact, withholding them
under the privilege.
5
Although it has not expressly abandoned its prior reliance on KRS 61.878(1)(i) and (j), the District
has not argued on appeal that these exceptions apply to the withheld text messages. As explained
previously, it is not clear why the District invoked the preliminary exceptions because it did not state
which records it was withholding under those exceptions, other than records related to an ethics
complaint that had been filed and which the Appellant did not request. Regardless, because the
District properly withheld these communications under the attorney-client privilege, it is unnecessary
to determine whether they are also exempt under KRS 61.878(1)(i) or (j).