24-ORD-119
May 10, 2024
In re: Lexington Herald–Leader/City of Richmond
Summary: The City of Richmond (“the City”) violated the Open Records
Act (“the Act”) when it denied a request for records without explaining
how the attorney-client privilege applied to the records it withheld. On
appeal, the City met its burden to show that the attorney-client privilege
applied to disputed communications. The City also carried its burden of
showing that KRS 61.878(1)(i) applies to withhold an anonymous email
alleging employee misconduct until the City’s investigation concludes
and final action is taken.
Open Records Decision
On April 1, 2024, the Lexington Herald–Leader (“Appellant”) asked the City to
provide copies of all emails sent by City commissioners or City employees to a private
attorney or any employees affiliated with the attorney’s law firm. The Appellant also
sought “any complaint documentation filed against” an identified City employee
“which alleges misconduct, sexual or racial comments, or unethical practices towards
employees.”
In a timely response, the City stated the requested emails between the City
and the private attorney “are subject to attorney client [sic] privilege and are thus
exempt from disclosure.” Regarding the Appellant’s request for “complaint
documentation,” the City stated, “Upon information and belief, the document
referenced in [the] request does exist, however, it is not in the possession of the
Official Records Custodian.” The City further claimed that, even if its records
custodian possessed the document, it would nevertheless be exempt under
KRS 61.878(1)(i) as correspondence with a private individual that was not intended
to give notice of final action by the City. This appeal followed.
On appeal, the Appellant argues the City’s response did not sufficiently explain
how the exceptions on which it relied support its denial. When a public agency denies
a request under the Act, it must give “a brief explanation of how the exception appliesto 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). 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).
An agency’s duty to explain how an exception applies extends to any claim of
attorney-client
privilege,
which
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). “Representative of the client” is defined broadly to include any “person
having authority to obtain professional legal services, or to act on advice thereby
rendered on behalf of the client.” KRS 503(a)(2)(A).
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, 406 S.W.3d at 848–49.Here, the City 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 City’s invocation of the attorney-client privilege.
However, on appeal, the City explains that the law firm in question has been retained
to provide legal services to the City, and that “the communications between [the law
firm] and the City are made in the course of and relating to the representation
secured by the services contract, [and] the City has not authorized disclosure of
same.” The City’s description of the emails on appeal, while minimal, is sufficient to
carry its burden of showing that the attorney-client privilege applies. Specifically,
instead of just asserting the emails are privileged without explanation, the City has
now explained that the attorney works for a private law firm that is on retainer to
provide legal services to the City, and that all the City’s communications with the
attorney and the law firm relate solely to the purposes for which the law firm was
retained.1 As such, the City did not violate the Act by withholding its privileged
communications with its attorney.
Unlike its mere assertion that the attorney-client privilege applied to some
records, the City’s initial response explained in more detail its denial of the request
for “complaint documentation.” Relying on KRS 61.878(1)(i) and 18-ORD-117, the
City claimed the email was from a private citizen, with the expectation of remaining
confidential, and the citizen merely “expresses concerns rather than advocating for
particular action.” As such, the City explained how it believed KRS 61.878(1)(i)
applied based on prior decisions of the Office. However, while the City’s explanation
complied with its requirement under KRS 61.880(1) to provide a “brief explanation of
how the exception applies to the record withheld,” the Office cannot determine from
the record on appeal that the email in question truly constitutes “correspondence with
a private individual.”
On appeal, the City explains that the email is from an anonymous person who
claims to be a City employee. The City further explains that the email makes various
allegations of impropriety against another City employee. If the anonymous person
really is a City employee, and he or she is describing events he or she observed while
in that capacity regarding another City employee, then the anonymous person is not
a “private individual.” Ultimately, the Office cannot resolve factual disputes in the
context of an open records appeal. See, e.g., 23-ORD-330 (factual dispute about
1
Unlike an attorney who is also an employee of the City, who routinely may be a party to
communications not related directly to the provision of legal services to the City, private attorneys are
less likely to engage in communications for any purpose other than the reason for which they were
retained. Further, the Office notes the Appellant only sought emails sent by the City (i.e., the client)
to the attorney. It stands to reason that the City would only send an email to its retained private
counsel for the purpose of seeking professional legal services from that attorney. The Appellant did
not ask for communications sent by the attorney to the City, which may include billing records or
invoices. Generally, such records are only privileged to the extent the invoices contain discussions of
privileged information. See Jackson v. Ethicon, Inc., 566 F.Supp.3d 757, 767–69 (E.D. Ky. 2021).whether meeting minutes had been made final); 23-ORD-317 (factual dispute about
whether all responsive records were provided). As such, the Office cannot determine
whether the anonymous person is a “private individual” or a City employee.
Regardless of whether the anonymous person is a City employee or a “private
individual,” the City’s description of the content of the email more closely resembles
a complaint against a public employee. Although the City claims the email is not a
“formal complaint,” because the person did not comply with the City’s policy of filling
out the appropriate form and signing his or her name, the email caused the City to
initiate an investigation of the subject of the email.2 Kentucky courts have long held
that complaints giving rise to a formal investigation of a public employee may be
withheld from inspection under KRS 61.878(1)(i) and (j), but only until the
investigation is completed and final action is taken. See Ky. Bd. of Med. Licensure v.
The Courier–Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky. App. 1983)
(holding that “once final action is taken by the [agency], the initial complaints must
be subject to public scrutiny”); Palmer v. Driggers, 60 S.W.3d 591, 595–97 (Ky. App.
2001) (holding that an employee’s resignation before the agency’s investigation
concluded constituted “final action” such that the initiating complaint lost its
preliminary status).3 Here, the City states the investigation of the employee has not
yet concluded. Accordingly, the City properly relied on KRS 61.878(1)(i) to deny the
Appellant’s request.
A party aggrieved by this decision may appeal it by initiating an 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.
2
For this reason, the City’s claim that it does not “possess” the email is without merit. Presumably,
by claiming not to possess the email, the City argues the email is not a “public record” under
KRS 61.870(2). The email was allegedly sent to a City commissioner’s private email account. But the
City commissioner nevertheless informed the City of the email’s contents, which subsequently led the
City to begin an investigation. In other words, the City used the email for an official purpose—to begin
an investigation that may result in disciplinary action. As such, the use of the email makes it a “public
record,” regardless of whether the records custodian currently has physical custody of it. See, e.g., 23-
ORD-057; 20-ORD-109.
3
Contrary to the Appellant’s assertion, Palmer does not stand for the proposition that complaints
against public employees are never exempt under KRS 61.878(1)(i) and (j). Rather, the issue in Palmer
was whether final action had been taken with respect to the investigation. The Palmer court held the
public employee’s resignation was itself the “final action” of the agency, and therefore, the exemptions
no longer applied.Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General
#206
Distribution:
Taylor Six
Tyler S. Frazier