22-ORD-264
December 12, 2022
In re: Sebastian Kitchen/Office of Attorney General
Summary: The Office of Attorney General (“the Office”) did not violate
the Open Records Act (“the Act”) when its response to a request to
inspect records complied with KRS 61.880(1).
Open Records Decision
Sebastian Kitchen (“the Appellant”) submitted a request to the Office seeking
a copy of all emails or communications exchanged between the Office’s Executive
Staff and the Offices of Attorneys General for the States of Texas, Ohio, Alaska,
Indiana, Kansas, Florida, and Arkansas from December 17, 2019 to the present. In a
timely response, the Office provided 92 nonexempt responsive records and withheld
1,035 responsive records.1 As grounds for withholding the responsive records, the
Office relied on KRS 61.878(1)(i) and (j), as well as KRE 503 and the attorney-client
privileged/work product doctrines.
In explaining how the stated exemptions applied, the Office stated the “e-mail
records consist of communication between this Office and other State Attorneys
General Offices regarding: joining, requests to join, and drafts of amicus briefs and
multi-state comment letters; ongoing communication and preliminary drafts and
notes, and attorney work product regarding multi-state consumer protection tolling
agreements and common interest agreements; preliminary drafts and notes, and
attorney work product regarding ongoing multi-state lawsuits and investigations;
and communication regarding ongoing multi-state human trafficking investigations.”
1
The Office initially responded within five business days and invoked KRS 61.872(5) because the
requested records were “otherwise unavailable.” The Office explained the cause of the delay and
provided the Appellant the earliest date on which records would be available. The Appellant does not
challenge the Office’s initial response, which properly invoked KRS 61.872(5).The Office then gave three detailed reasons why the cited exemptions applied to the
records withheld. This appeal followed.
The Appellant argues the Office’s response was inadequate under KRS
61.880(1) because it gave, according to the Appellant “four blanket justifications” to
withhold responsive records. Of course, among the Office’s cited exemptions for
denying inspection of its correspondence with the other State Attorneys General
offices were the attorney-client and work product privileges.2 But in terms of the
adequacy of the response, because the Office denied the request 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 Ft. 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). The Court also has acknowledged the Act must be “workable.”
Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013). As a result,
when certain types of information that are routinely kept in public records are
routinely exempt, an agency “need not undertake an ad hoc analysis of the
exemption’s application to such information in each instance, but may apply a
categorical rule.” Id.
The takeaway from these decisions is that—at least with respect to voluminous
requests—an agency must break up responsive records into meaningful categories
2
Because the Office properly relied on the common-interest provision of the attorney-client privilege
doctrine, KRE 503(b)(3), and the work product doctrine, this decision need not address the Office’s
alterative reliance on KRS 61.878(1)(i) and (j).and explain how the exemptions cited for each category of records applies. Here, the
Office categorized the types of privileged communications by the type of “professional
legal services” that were provided. Specifically, the Office described the types of
privileged communications as “content in which opinions are expressed as to amicus
briefs and multi-state comment letters”; “draft multi-state consumer protection
tolling agreements and cost share agreements pertaining to two entities being
investigated by this Office and other State Attorneys General Offices regarding
potential anticompetitive conduct”; and “preliminary content in which opinions are
expressed as to multi-state lawsuits and investigations regarding for which this
Office’s Civil and Consumer Protection Divisions joined.”
As for whether the claimed exemption applies to the described categories of
“professional legal services,” 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). One aspect of the privilege that is key here is the common-interest
privilege, which applies to communications between the “client’s lawyer or a
representative of the lawyer to a lawyer or a representative of a lawyer representing
another party in a pending action and concerning a matter of common interest
therein.” KRE 503(b)(3).
The attorney work product doctrine, on the other hand, “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). “[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.
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). Records protected by the work product doctrine may
likewise be withheld from public inspection under KRS 61.878(1)(l) and CR 26.02(3).
See Lexington H-L Servs., 579 S.W.3d at 864–65.
It should come as no surprise that emails between multiple State Attorneys
General involved in multi-state federal litigation and multi-state investigations
would involve the common-interest privilege under KRE 503(b)(3). Nor should it come
as a surprise that such communications could involve the work product of those
States’ Attorneys General. The Office’s descriptions of the professional legal servicesbeing provided in each category of withheld records is sufficient to allow the Appellant
to assess the legitimacy of the claimed privilege.3 The Office’s response was not
“limited and perfunctory.” Edmondson, 926 S.W.2d at 858. The Office did not violate
the Act in withholding records exempt under KRS 61.878(1)(l); KRE 503(b)(3); and
CR 26.02(3).
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 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. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#422
Distributed to:
Sebastian Kitchen
Jacob Ford
3
Moreover, on appeal, the Office categorizes the emails even further by the specific attorneys or
their representatives who sent or received the communications regarding the professional legal
services rendered.