Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Louisville Metro Government ("LMG") violated the Open Records Act in its disposition of David Fink's open records request regarding a Metro Council ordinance. For the reasons stated below, we find that LMG violated the Act's procedural requirement for providing a detailed explanation when production of records will exceed three working days, and substantively violated the Act by failing to meet its burden of proof to show why records withheld pursuant to KRS 61.878(1)(i) and (j) were preliminary drafts that were not adopted as part of a final ordinance. LMG properly withheld one record under the attorney-client privilege.
On April 6, 2018, David Fink ("Appellant") made a request for records using LMG's online portal, requesting emails of seven different LMG employees for approximately a two-and-a-half-month period. Appellant explained that he was seeking communications between LMG and the developer of a particular zoning ordinance to assess the extent to which the developer influenced the zoning ordinance amendment.
LMG responded to Appellant on the same day, Friday, April 6, 2018, acknowledging his request and stating that he could expect a response within three working days. On April 12, 2018, Appellant emailed LMG to state that one of his search terms was incorrect and provided a corrected search term. He complained that he had not received a response to his request, and LMG responded that it was working on his request. On April 16, 2018, Appellant again emailed LMG to complain that he had not received the records. LMG responded on April 17, 2018, and stated that the records would be available for review on April 20, 2018. In that April 17 response, LMG explained that "persons making broad requests for large volumes of email or other records 'cannot reasonably expect agencies . . . to produce all responsive records within the three day deadline' imposed by KRS 61.880(1) . . . ." Appellant filed his appeal on April 23, 2018, complaining that LMG had not met the April 20 deadline it had set for producing the requested records, but had set a new date, April 27, for producing those records.
Annale Renneker, Assistant Jefferson County Attorney, responded to the appeal on behalf of LMG. She stated that the records search was initially conducted using the incorrect keyword provided by Appellant, and that a new search was conducted with the new keyword. She further stated that a staff member whose records were at issue had been out of the office, and the search was delayed until the staff member returned. "Additional time to review the records was necessary as the records previously reviewed had been produced pursuant to the incorrect search terms. Further, on May 1, 2018, LMG provided [Appellant] with the responsive records." Ms. Renneker also explained that LMG withheld some records as exempt pursuant to KRS 61.878(1)(i) and (j) 1 as the records contained ordinance drafts that were not adopted as part of the final ordinance. She also explained that one record was withheld pursuant to the attorney-client privilege.
Timeliness of LMG's Response . In response to the initial request, made via LMG's online portal, LMG initially stated that Appellant would receive a response within three working days. LMG's response would thus have been due on Wednesday, April 11, 2018. As LMG did not provide the records by that date, it was incumbent upon it to provide, on that day, a "detailed explanation" for the delay and to state the "place, time, and earliest date on which the public record [would] be available for inspection, " as required by KRS 61.872(5). 2 LMG's failure to provide, by April 11, that detailed explanation for delay was a procedural violation of the Open Records Act. The record of communications between Appellant and LMG after that point is unclear, due in part to Appellant's own admitted error in providing an incorrect search term and correcting that on April 12, 2018, but also due to delays by LMG.
Records Withheld Pursuant to KRS 61.878(1)(i) and (j) . LMG withheld a number of records under the claim that they were exempt pursuant to KRS 61.878(1)(i) and (j). Supra , n. 1. While LMG cited KRS 61.878(1)(j) as a basis for withholding the records, it did not expressly state that, or explain how, the records contain "preliminary recommendations," or "preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]" As such, we are unable to find that KRS 61.878(1)(j) applies to these records.
On May 11, 2018, this office requested that LMG provide the withheld records for an in camera review under the authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. LMG provided those records on May 22, 2018. LMG claims the withheld records "contained ordinance drafts that were not adopted as part of the final ordinance. " This description leads us to understand that the drafts must have been withheld pursuant to that portion of KRS 61.878(1)(i) which allows the withholding of "preliminary drafts." Preliminary drafts "represent a tentative version, sketch, or outline of a formal and final written product." 05-ORD-179. While we cannot specifically describe the contents of the withheld records, those records appear to be discussions regarding ordinances or ordinance requirements, and our in camera review of those records did not readily reveal how they constitute preliminary drafts. LMG did not provide this office with any additional information to explain how the records, either separately or in their entirety, are preliminary drafts that may be withheld on the basis that they were not adopted as part of the final ordinance. As such, we cannot merely accept LMG's bare assertion that the withheld records are preliminary drafts that were not adopted as part of the final ordinance.
In relevant part, KRS 61.880(1) provides that a public "agency response denying, in whole or in part, inspection of any record shall 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. " Accordingly, the Kentucky Court of Appeals observed that "[t]he language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. This Office has long recognized that a public agency has the burden of justifying its denial on appeal to the Attorney General or to the circuit court. KRS 61.880(2)(c); KRS 61.882(3). 00-ORD-10, pp. 10-11 (citation omitted). A "bare assertion" relative to the basis for denial . . . does not satisfy the burden of proof. . . . Id. , p. 11. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action [denial of the records] shall rest with the agency[.]" As LMG did not meet its burden justifying how the withheld records were preliminary records pursuant to KRS 61.878(1)(i) and (j), either in response to Appellant or on appeal, it must make those records available to the Appellant. 3
Attorney-Client Privilege . Our review of the one record withheld on the basis of attorney-client privilege is consistent with Ms. Renneker's description as being protected by that privilege. In a recent decision by this Office, 18-ORD-103, we reviewed other records withheld from the same Appellant regarding a similar request for records relating to the promulgation of the ordinance at issue. In that decision, we upheld the nondisclosure of records on the basis of attorney-client privilege. In 18-ORD-103, as well as this current appeal, Ms. Renneker explained that Paul Whitty is an Assistant County Attorney with the Jefferson County Attorney's Office, and in that role he is required to advise and assist in drafting legal documents for Louisville Metro Government members.
The attorney-client privilege is incorporated into the Open Records Act through KRS 61.878(1)(l), which provides for the nondisclosure of: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]" 4 Our in camera review of the undisclosed record confirmed that it constituted communications from, and to, Mr. Whitty made in the course of his representation as an attorney for the LMG. We find that the record in this appeal, withheld on the basis of the attorney-client privilege, correctly relied on that privilege as incorporated into the Open Records Act by KRS 61.878(1)(l). As our analysis in 18-ORD-103 thoroughly reviewed the attorney-client privilege, and Mr. Whitty's role as an Assistant County Attorney, we will not further burden this decision by including that analysis, but adopt the reasoning in that decision and find that it applies to the record withheld pursuant to attorney-client privilege in this appeal.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(i) and (j) exempt from the Open Records Act, respectively:
"(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and] (j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
2 KRS 61.872(5) states: "If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection."
3 LMG "may review the records in dispute for the purpose of identifying and redacting information that implicates protected privacy interests" under KRS 61.878(1)(a). 07-ORD-090, p. 10.
4 Our decisions have held that KRE 503(b) establishes the general rule of attorney-client privilege and is incorporated into the Open Records Act through the operation of KRS 61.878(1)(l). E.g. , 97-ORD-127.