24-ORD-157
July 2, 2024
In re: Davy Jones/University of Kentucky
Summary: The University of Kentucky (“the University”) violated the
Open Records Act (“the Act”) when it partially denied a request for
records without explaining how the cited exemptions applied to the
records it withheld. On appeal, the University carried its burden of
showing that KRS 61.878(1)(i) applied to withhold preliminary drafts.
However, the University violated the Act when it withheld a “Statement
of Work” that was neither a preliminary draft under KRS 61.878(1)(i)
nor a preliminary memorandum under KRS 61.878(1)(j).
Open Records Decision
On April 2, 2024, Davy Jones (“Appellant”) requested certain records relating
to Deloitte Consulting (“Deloitte”), a firm contracted by the University, in its support
role for a planning initiative known as “Project Accelerate” and associated work
groups made up of students, faculty, staff, senior administrators, and members of the
University President’s cabinet. The request was particularly focused on “Work Group
5,” which related to the governing structure and regulatory processes of the
University. Specifically, the Appellant requested “the preliminary notes and
memoranda,” “other preliminary record(s),” and “records constituting final
[University] actions” that describe the “activities of ‘support’ that Deloitte was to
perform for [the University] by or after early December 2023.”1 He requested all
responsive records in the University’s possession, regardless of whether they were
“provided to Deloitte by or before” December 2023.
In response, the University stated the requested public records were
“considered preliminary pursuant to KRS 61.878(1)(i) & (j) as there are no final
actions.” The University further asserted “many” of the requested records “would also
1
The Appellant’s request included exhibits specifically referring to Deloitte’s activity of
“benchmarking,” i.e., comparing the University’s governing structure and regulatory processes to those
of 14 other academic institutions.be protected as they are considered attorney-client privileged communications.” The
University provided no further explanation.2
On April 12, 2024, the Appellant submitted a rephrased request for “the
records, or parts of records, possessed by [the University] on or before early December
2023, including but not limited to those provided to [Deloitte,] that describe [the
University’s] expectations for activities [of Deloitte] identified to the Board Executive
Committee (02/23/2024) by [Deloitte] as ‘support’ activities for Work Group 5 [and]
were support activities of ‘benchmarking.’” The University denied the request and
cited the same exceptions it asserted in its original response. This appeal followed.
The Appellant argues the University’s response did not sufficiently explain the
exceptions to the Act on which it relied. 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.” 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).
Here,
the
University
merely
cited
KRS 61.878(1)(i) and (j) without explaining the types of records to which they applied
or how each exception applied to the particular records withheld. Thus, the
University violated the Act.
The University’s initial response likewise failed to explain how the attorney-
client privilege applied to the particular records it withheld. 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
2
The Appellant claims the University’s response to his first request did not constitute an express
denial. However, when a public agency does not provide records and asserts they are exempt from
disclosure, a denial of the request may be inferred.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 a “person having authority
to obtain professional legal services, or to act on advice thereby rendered on behalf of
the client.” KRE 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 (providing that
the agency’s “proof may and often will include an outline, catalogue, or index of
responsive records and an affidavit by a qualified person describing the contents of
withheld records and explaining why they were withheld.”). Here, the University
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
University’s invocation of the attorney-client privilege.
On appeal, the University claims the records withheld under KRS 61.878(1)(i)
and (j) fall into three categories: “early drafts of Deloitte’s presentations,”
“communications between Deloitte employees and university officials,” and “internal
communications between university officials concerning Deloitte’s work.” The
Appellant, however, asserts he did not intend to request any preliminary drafts of
Deloitte’s presentations. Therefore, it is unnecessary to address this first category of
records.
As the Appellant reiterates on appeal, he requested “records, or parts of
records, that show the University’s expectation[s] of Deloitte in ‘support activities’ in
‘benchmarking,’” which culminated in Deloitte’s presentation to the University’s
Board of Trustees (“the Board”) on February 23, 2024, and the Board’s subsequent
vote to take action on Deloitte’s recommendations.3 Under both versions of the
request, the Appellant sought these records regardless of whether they were internal
communications within the University or were communicated to Deloitte.
3
The University acknowledges it took final action at the Board’s meeting on February 23, 2024,
with respect to Deloitte’s recommendations regarding Work Group 5.Under KRS 61.880(2)(c), the Office requested that the University provide for
review a copy of the written communication in which the University described to
Deloitte “the tasks, or scope of work, the University expected Deloitte to perform”
with respect to Work Group 5 under its existing general contract. In response, the
University produced a “Statement of Work” dated November 21, 2023, which
expressly incorporates the general contract between the University and Deloitte and
spells out the specific expectations for Deloitte’s consulting services with respect to
Work Group 5. Formally, the document bears all the appearances of a rider or
amendment to the contract, including specific expectations, a fee schedule, provisions
for change orders, and blanks for signatures by representatives of the University and
Deloitte. The “Statement of Work” is thus essentially a contract for Deloitte’s services
pertaining to Work Group 5. See 24-ORD-153.
Information in a public contract must be disclosed unless it is subject to an
exception under KRS 61.878(1). See, e.g., 03-ORD-065. Furthermore, exceptions to
the Act must “be strictly construed.” KRS 61.871. According to any reasonable
construction, the Statement of Work is not a “preliminary recommendation” or a
“preliminary memorand[um] in which opinions are expressed or policies formulated
or recommended” under KRS 61.878(1)(j), nor is it a preliminary draft, a note, or
correspondence under KRS 61.878(1)(i).4 Rather, a contract is itself a final agency
action, even when performance of the contract is to occur in the future. See, e.g., 19-
ORD-098 (finding a public agency’s execution of a settlement agreement and an
installment payment agreement were final actions). “The public is entitled to know
the details of how efficiently, or inefficiently, [a private entity] has administered a
public contract.” 24-ORD-115. This cannot be known without public access to the
document specifying the details of the work to be performed, whether it is referred to
as a “contract” or by some other title. Accordingly, the University violated the Act
when it withheld the Statement of Work in reliance on KRS 61.878(1)(i) and (j).
Nevertheless, the remainder of the records, as described in the requests, are
“preliminary” communications regarding the University’s expectations for Deloitte’s
work, which were finally embodied in the formal Statement of Work dated December
1, 2023. Communications of this nature would necessarily constitute tentative
versions of the Statement of Work. KRS 61.878(1)(i) exempts from public disclosure
“[p]reliminary drafts, notes, [and] correspondence with private individuals, other
than correspondence which is intended to give notice of final action of a public
agency.” Records that “represent a tentative version, sketch, or outline of a formal
and final written product” are preliminary drafts. 05-ORD-179. Furthermore,
communications containing edits or suggested changes to a preliminary draft are
likewise
within
the
scope
of
the
“preliminary
drafts”
exception
under
4
Nor is the Statement of Work an attorney-client privileged communication, as the document
repeatedly asserts that Deloitte’s consulting services do not constitute legal advice.KRS 61.878(1)(i). See, e.g., 24-ORD-035; 22-ORD-204; 21-ORD-089; 16-ORD-180.
Therefore, any responsive records prior to the execution of the Statement of Work are
exempt from disclosure.
Regarding communications after the Statement of Work, the document itself
specifies a formal process by which a “Change Order” agreed between the parties may
alter the scope of services. However, the Appellant requested only records possessed
by the University “on or before early December 2023.” Therefore, if a Change Order
exists, it would only be responsive to the Appellant’s request if it was executed in
early December 2023. A Change Order amending the Statement of Work, like the
Statement of Work itself, would be a final action subject to disclosure. On the other
hand, any preliminary communications leading up to a Change Order would be
preliminary drafts and thus exempt under KRS 61.878(1)(i).5
In sum, the University violated the Act when it failed to explain, in its initial
responses, how the asserted exceptions to the Act applied to the records withheld.
The University also violated the Act when it withheld the Statement of Work for
Deloitte’s consulting services with Work Group 5, but it did not violate the Act when
it withheld communications that constituted tentative versions or suggestions for the
Statement of Work as “preliminary drafts” under KRS 61.878(1)(i).6
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.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
5
Presumably, the University would have provided any relevant Change Orders along with the
Statement of Work in response to the Office’s request for the document defining the scope of Deloitte’s
services. Because no Change Orders were provided to the Office, it is assumed that none exist.
6
Because preliminary communications formulating the Statement of Work are “preliminary drafts,”
it is unnecessary to decide whether the attorney-client privilege applies to any of those
communications.#210
Distribution:
Dr. Davy Jones
William E. Thro, Esq.
Mr. Eric N. Monday
Ms. Amy R. Spagnuolo