Tuesday, November 8, 2016

Public agencies must properly cite, describe records exemption to properly invoke it

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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