24-ORD-111
May 1, 2024
In re: Scott Romano/Scott County Attorney’s Office
Summary: The Scott County Attorney’s Office (“the agency”) violated
the Open Records Act (“the Act”) when it denied a request for records
without explaining how the cited exemptions applied to the records it
withheld. On appeal, the agency failed to carry its burden to show that
KRS 61.878(1)(j), the attorney-client privilege, or the attorney work-
product doctrine applied to withhold records.
Open Records Decision
On March 24, 2024, Scott Romano (“Appellant”), requested to inspect “emails,
text messages and record of phone calls” exchanged between the members of the Scott
County Fiscal Court, the Scott County Attorney, the Scott County Judge/Executive,
or the county’s human resources director regarding open records requests he
submitted from January 1 to March 24, 2024. In a timely response, the agency stated,
“To the extent that any such records exist, the requested records are exempt from
inspection” under KRS 61.878(1)(j) and (l). The agency quoted the language of the two
subsections and further stated, “To the extent that they exist, any communications
between the attorneys and [the two other named persons] and/or members of the
Fiscal Court are protected by attorney-client privilege, codified at KRE 503, and
incorporated into the [Act] by operation of KRS 61.878(1)(l).” This appeal followed.
Under KRS 61.880(1), a public agency must, within five business days,
determine “whether to comply with the request” and notify the requester “of its
decision.” In responding to a request, an agency’s “first obligation [is] to identify
responsive records,” not simply to “den[y] the request based on what a hypothetical
[set of records] might contain.” 19-ORD-194; 15-ORD-109. If a requested record does
not exist, the public agency must affirmatively state as much. See, e.g., 22-ORD-038.
Thus, an agency violates the Act when it fails to determine whether any responsive
records exist. See, e.g., 19-ORD-194.Furthermore, 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.” Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). An
agency does not comply with KRS 61.880(1) when, as here, it fails to identify the
records it is withholding or explain how the claimed exemptions apply to them. See,
e.g., 21-ORD-169.
KRS
61.878(1)(j)
exempts
from
public
disclosure
“[p]reliminary
recommendations, and preliminary memoranda in which opinions are expressed or
policies formulated or recommended.” Here, however, the agency merely quoted the
language of the statute without explaining how it applied to the particular records it
withheld.
Similarly, although the agency cited the attorney-client privilege under
KRS 503, it failed to explain how the privilege applied to any particular records. The
attorney-client privilege does not apply to every communication between an attorney
and a client, but 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. General 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) (providing that the agency’s “proof may and often will include an
outline, catalogue, or index of responsive records and an affidavit by a qualifiedperson describing the contents of withheld records and explaining why they were
withheld”).
Here, the agency 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 either KRS 61.878(1)(j) or the
attorney-client privilege. Thus, the agency violated the Act.
On appeal, the agency has provided only minimal additional information about
the records withheld under KRS 61.878(1)(j). Specifically, it states, “To the extent
that any [responsive] communications exist [they] are exempt from disclosure as
preliminary memoranda.” Again, the agency fails to confirm or deny that any records
exist. It merely identifies a category of records under KRS 61.878(1)(j) to which it
claims any hypothetical documents would belong. This is not a sufficient explanation.
Records that are exempt under KRS 61.878(1)(j) may lose their preliminary status
and become subject to disclosure under the Act if they are adopted as the basis of final
agency action. See Univ. of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d
373, 378 (Ky. 1992); Ky. State Bd. of Medical Licensure v. Courier-Journal &
Louisville Times Co., 663 S.W.2d 953, 956 (Ky. App. 1983); City of Louisville v.
Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 659–60 (Ky. App. 1982). A
public agency bears the burden of proof to sustain its action. KRS 61.880(2)(c). When
an agency does not address the question of whether preliminary memoranda were
adopted as the basis of final agency action, it fails to meet its burden of proof that
KRS 61.878(1)(j) applies. See, e.g., 22-ORD-068. Therefore, the agency violated the
Act when it denied the Appellant’s request under KRS 61.878(1)(j).
With regard to the records withheld under KRE 503, the agency merely claims
they are privileged because they are communications between an attorney and a
client, without describing the contents or purpose of any of the communications. This
is inadequate to meet the agency’s burden of proof that the communications were
confidential and made for the purpose of providing professional legal services to Scott
County. Accordingly, the agency violated the Act when it withheld records under
KRE 503.1
1
The Office’s finding that the agency’s failure to adequately explain how the attorney-client
privilege applies to the records does not operate to waive the privilege if some responsive records would
indeed fall under the scope of KRE 503. Public agencies do not forfeit the attorney-client privilege by
issuing inadequate responses to requests for public records. Further, only a circuit court of competent
jurisdiction can compel a public agency to produce records responsive to a request, as the Office’s role
in these dispute is only to issue a written decision determining whether the agency complied with the
Act. See KRS 61.880(2). Further, the Appellant claims the attorney-client privilege is unavailable
because of the “crime-fraud exception” in KRE 503(d)(1), but a party attempting to invoke the crime-
fraud exception must provide at least some evidence that the communications were made in
furtherance of a crime or fraud. See, e.g., Lindsey v. Bd. of Trs. of Univ. of Ky., 552 S.W.3d 77, 87 (Ky.
App. 2018); Clark v. United States, 289 U.S. 1, 15 (1933).On appeal, the agency additionally asserts the attorney work-product doctrine
for any responsive communications involving attorneys. The work-product doctrine
“affords a qualified privilege from discovery for documents ‘prepared in anticipation
of litigation or for trial’ by that party’s representative, which includes an attorney.”
Univ. of Ky. v. Lexington H-L Servs., 579 S.W.3d 858, 864 Ky. App. 2018). Records
protected by the work-product doctrine may be withheld from public inspection under
KRS 61.878(1)(l) and CR 26.02(3). Id. “[D]ocuments which are primarily factual, non-
opinion work product are subject to lesser protection than ‘core’ work product, which
includes the mental impressions, conclusions, opinions, or legal theories of an
attorney.” Id. Here, however, the agency has not claimed any responsive records were
prepared in anticipation of litigation or for trial. Thus, the agency has not met its
burden of proof that the work-product doctrine applies. Therefore, the agency violated
the Act when it denied the Appellant’s request.
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
#207
Distribution:
Mr. Scott Romano
Cameron R. Culbertson, Esq.