25-ORD-047
February 18, 2025
In re: Joseph Childers/University of Kentucky
Summary: The University of Kentucky (“the University”) violated the
Open Records Act (“the Act”) when it denied a request for records under
KRS 61.872(6) because it did not place an unreasonable burden on the
agency. The University violated the Act when it withheld records under
KRS 61.878(1)(i) and (j), to the extent they “relate[d] to” the requesting
University employee within the meaning of KRS 61.878(3). However,
the University did not violate the Act when it withheld privileged
attorney-client communications under KRE 503(b).
Open Records Decision
On January 2, 2025, attorney Joseph Childers (“the Appellant”) requested
certain emails sent to or from the University’s Executive Vice President/Co-Executive
Vice President for Health Affairs between July 1, 2023, and June 30, 2024.
Specifically, the Appellant requested all “emails (including their electronic
attachments) sent from or received [by] [University] email addresses, that include the
names ‘DeShana, Dr. Collett, Professor Collett, Senate Council Chair Collett, SC
Chair Collett’ or any other variation of [his] client’s name, Deshana Collett.” The
University denied the request as “unreasonably burdensome” under KRS 61.872(6)
due to the number of responsive records and the time required to review and redact
them. Alternatively, the University denied the request in part under KRS 61.878(1)(i)
and (j) insofar as it encompassed preliminary records pertaining to “policy issues that
involved the University Senate during the time [the Appellant’s] client was Chair of
that body.” Additionally, the University denied the request to the extent it included
attorney-client privileged communications under KRE 503. This appeal followed.
If a request for records “places an unreasonable burden in producing public
records[,] the official custodian may refuse to permit inspection of the public records
or mail copies thereof. However, refusal under this section shall be sustained by clear
and convincing evidence.” KRS 61.872(6). “When determining whether a particular
request places an unreasonable burden on an agency, the Office considers the numberof records implicated, whether the records are in a physical or electronic format, and
whether the records contain exempt material requiring redaction.” 22-ORD-221. Of
these, the number of records implicated “is the most important factor to be
considered.” 22-ORD-182.
Here, the University has identified 792 records that are responsive to the
Appellant’s request, consisting of 6,234 pages. The University estimates, at the rate
of one minute per page, it would take 103.9 hours to review and redact the records.
Alternatively, at the rate of four minutes per record, or approximately 30 seconds per
page, the University estimates review and redaction would take 52.8 hours. Thus, an
individual employee would be required to expend somewhere between 7.5 and 13 days
at eight hours per day to process the Appellant’s request.
In 14-ORD-109, the Office found unreasonably burdensome a request for “at
least 6,200” emails exchanged between two school systems. Although that number is
similar to the number of pages of emails responsive to the Appellant’s request, there
are significant distinguishing factors. The records in 14-ORD-109 implicated the
Family Education Rights and Privacy Act, 20 U.S.C. § 1232g (“FERPA”), which
carries financial consequences for educational institutions that fail to adhere to strict
confidentiality. Furthermore, the review in 14-ORD-109 required review by multiple
agency employees, including lower-level employees with “the personal knowledge
needed for a FERPA review,” supervisors, and legal counsel, “which could reasonably
multiply the time and effort” involved. Additionally, the request in 14-ORD-109
would have necessitated a search beyond the 6,200 emails identified as a minimum,
because some emails were stored offline so that every individual workstation of every
school district employee would have to be searched for additional records. None of
those factors are present here.
Nevertheless, the University argues the burden is unreasonable because it
must separate exempt material or material that does not relate to the Appellant
within the meaning of KRS 61.878(3). However, the Act requires public agencies to
separate exempt from nonexempt material in every case. See KRS 61.878(4). “Thus,
the obvious fact that complying with an open records request will consume both time
and manpower is, standing alone, not sufficiently clear and convincing evidence of an
unreasonable burden.” Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008).
As the Office has long recognized, “it is the legislative intent that public employees
exercise patience and long-suffering in making public records available for public
inspection.” OAG 77-151. Under the facts in this particular appeal, the University
has not shown by clear and convincing evidence that the Appellant’s request imposes
an “unreasonable burden” within the meaning of KRS 61.872(6).Next, the University argues it may withhold certain records from the Appellant
as “preliminary.”1 KRS 61.878(1)(i) exempts from 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,” whereas
KRS 61.878(1)(j) exempts “[p]reliminary recommendations, and preliminary
memoranda in which opinions are expressed or policies formulated or recommended.”
But the Appellant’s client is, and was at all relevant times, an employee of the
University. Under KRS 61.878(3), “[n]o exemption in this section shall be construed
to deny, abridge, or impede the right of a public agency employee, including university
employees[,] to inspect and to copy any record including preliminary and other
supporting documentation that relates to him or her.” Accordingly, no record may be
withheld from the Appellant, as a requester on behalf of his client, to the extent it
relates to her.
Records that “relate[ ] to” an employee can, in some cases, be a broader
category than records that mention the employee by name. For example, in 02-ORD-
168, a record that contained no specific reference to an employee nevertheless
“relate[d] to him” because it had been used in determining his fitness for a promotion
and he had requested the records pertaining to his assessment for that promotion.
See 02-ORD-168 n.3. Here, however, the University advances the novel argument
that it is possible for a record to mention the Appellant’s client by name without
“relat[ing] to” her. To support this argument, the University cites 23-ORD-234, in
which an employee sought preliminary drafts and discussions leading to the
formulation of a general workplace policy that was later applied to him in a particular
situation. The Office found those records exempt under KRS 61.878(1)(i) and (j)
because they did not relate to the employee. But the University’s reliance on 23-ORD-
234 is misplaced, because none of the preliminary records in that case were alleged
to contain a specific reference to the employee. Here, by contrast, the Appellant
requested only records containing his client’s first or last name.
The University further attempts to support its argument by citing KRS 61.884,
which provides that “[a]ny person shall have access to any public record relating to
him or in which he is mentioned by name, upon presentation of appropriate
identification, subject to the provisions of KRS 61.878.” Because access under KRS
61.884 is made “subject to” all of the exceptions to the Act, that provision affords a
far lesser right of access than KRS 61.878(3), which negates most of the exceptions
under KRS 61.878 for records that “relate[ ] to” the requesting employee. The
University claims the fact that KRS 61.884 refers separately to records “relating to”
a person and to records “in which he is mentioned by name” indicates that it is
possible for a record to mention a person by name without relating to that person.
1
The University’s response to this appeal incorporates by reference its response in 25-ORD-042,
which involved the same parties. The arguments pertaining to KRS 61.878(1)(i) and (j) and the
attorney-client privilege are therefore those presented in that appeal.However, KRS 61.884 provides no support for this argument, because it leaves
records of either description subject to the exemptions under KRS 61.878. The
distinction is therefore one without a difference. A member of the general public
cannot obtain an exempt preliminary record under KRS 61.884, whereas a public
agency employee can obtain an otherwise-exempt preliminary record that “relates to
him or her” under KRS 61.878(3). Furthermore, records that “relate[ ] to” an
employee are a broader, not a narrower, category than records that mention the
employee by name. Thus, all of the records requested by the Appellant “relate[ ] to”
his client within the meaning of KRS 61.878(3).
Nevertheless, it is possible that a responsive record containing the name of the
Appellant’s client could be addressed to several different topics, so that it “relates to”
her only in part. See, e.g., 25-ORD-042 n.1. For example, an email containing his
client’s first or last name, and perhaps referring to her elsewhere by her title or
function, would relate to her to the extent the discussion pertained to her directly,
but it would not relate to her insofar as it discussed other individuals or matters not
directly concerning her. In such cases, the University has the duty to redact the
record instead of withholding it entirely. See KRS 61.878(4) (“If any public record
contains material which is not excepted under this section, the public agency shall
separate the excepted and make the nonexcepted material available for
examination.”). Thus, the University violated the Act when it entirely withheld
preliminary records under KRS 61.878(1)(i) and (j), instead of redacting those
portions that do not “relate[ ] to” the Appellant’s client within the meaning of
KRS 61.878(3) and providing the remainder.
Finally, the University claims some of the requested records are exempt
communications with legal counsel. 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). 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 needfor 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 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 qualified
person describing the contents of withheld records and explaining why they were
withheld.”). Here, the University characterized the emails in question as
communications with University attorneys “seeking professional services from the
attorneys, including requests for advice and providing information necessary for the
attorneys to formulate legal advice.” While minimal, this description is sufficient to
sustain that the withheld communications are protected by the attorney-client
privilege. See, e.g., 25-ORD-038. Furthermore, a public agency employee is not
entitled to obtain attorney-client privileged communications under KRS 61.878(3).
See, e.g., 23-ORD-234; 21-ORD-260. Therefore, the University did not violate the Act
when it withheld those communications.
In sum, the University violated the Act when it denied the Appellant’s request
in its entirety as an “unreasonable burden” under KRS 61.872(6). The University also
violated the Act when it entirely withheld records mentioning the Appellant’s client
by name under KRS 61.878(1)(i) or (j), although it may redact portions of those
records that do not relate to her within the meaning of KRS 61.878(3). However, the
University did not violate the Act when it withheld attorney-client privileged
communications under KRE 503(b).
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#37
Distribution:
Joseph F. Childers, Esq.
William E. Thro, Esq.
Ms. Amy R. Spagnuolo