Public agencies must cite the correct portion of the Open
Records Act if they wish to invoke an exemption to withhold records.
On Sept. 22, 2016, the Kentucky Attorney General issued an
opinion in the appeal of In re: The State
Journal/City of Frankfort, 16-ORD-211.
Brad Bowman, with the State Journal, requested email
between the city manager and the city commissioners for specific dates in June 2016.
Frankfort responded on Aug. 8, noting that certain records
had been withhold because they were subject to the attorney-client privilege.
It also involved prospective location of a business not previously publicly
disclosed and preliminary drafts with private individuals not in a final action.
Beshear noted that the city did procedurally violate the Act
by responding six days after the request, when the statute requires a three
business-day notice.
Bowman appealed on Aug. 22, noting that the city had not established
the required elements. Frankfort responded stated that the
email withheld was between the city attorney and the city manager dealing with
an ongoing legal issue.
The email was also privately
reviewed by Beshear to determine if the exemption actually applied.
Beshear noted that the attorney-client privilege is
incorporated into the Open Records Act through KRS 61.878(1)(l), as noted in
97-ORD-127.
The office found that the claimed exemption was applicable
to the email and it was in fact attorney-client privileged communication,
meaning Frankfort did not substantively violate the Act.
However, Frankfort improperly invoked the attorney-client
privilege, because it did not include a sufficient statement of the exemption
and naming the section of the statute invoking the exemption.
Therefore, Frankfort did not have a substantive violation,
but did procedurally violate the Open Records Act by not responding in a timely
manner and incorrectly invoking an exemption.
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