Preliminary memo in Mayfield personnel issue are exempt from disclosure

A memorandum was at issue in an appeal by a local newspaper against a city in an Open Records request.

Attorney General Andy Beshear issued an opinion on Sept. 22 in the matter of In re: Mayfield Messenger/City of Mayfield, 16-ORD-209.

The Mayfield Messenger filed an Open Records Act request on June 27, 2016, where it requested preliminary memos by the mayor of Mayfield concerning the suspension of two police department officials being suspended.

Two days later, the city responded by denying the request of the newspaper on the grounds that the requested records were exempt through attorney/client privilege and by KRS 61.878(1)(i) and (j), the preliminary document exception.

The Messenger appealed on July 1 in a long letter from the newspaper stating the backstory and why it requested the “preliminary” memo, which was because it contained reasons why the two officers were suspended.

The city’s response stated the preliminary memo to the mayor summarized interviews and recommended who should still be interviewed.

The two officers who were suspended chose to resign to forego a public hearing on the allegations.

The city also cited case law and a 2012 Attorney General opinion, 12-ORD-055, as the preliminary memo was not adopted in any fashion as the basis for final action.

Beshear’s office requested the documents for a private viewing and the city complied, redacting names, other than those of the two officers.

The attorney general found that the records sought by the Messenger were not adopted as part of the final action of the resignation of the two officers and remained preliminary in nature and thus exempt from disclosure.

He also found that the documents met the elements of attorney/client privilege, because it was made between an attorney and client for the purposes of legal representation.

Due to both claimed exemptions being found as valid by Beshear, the city of Mayfield was not in violation of the law.

UofL on losing side of another Beshear opinion

Attorney General Andy Beshear issued yet another opinion against the University of Louisville.

On Sept. 22, Beshear issued an opinion in an appeal from the Kentucky Center for Investigative Reporting about the Open Records Act in In re: Kentucky Center for Investigative Reporting/University of Louisville, 16-ORD-210.

Brendan McCarthy, a managing editor with the Center, requested from UofL on Dec. 24, 2015,  minutes, agendas, staff list and membership documents for various programs and boards.

On Jan 8, 2016, the university acknowledged receipt of the request and expressed concerns about the volume of records and the time needed to identify and then review the documents.

On Jan. 12, McCarthy asked the university if it had any idea the actual scope of the request, so that he could possibly tailor the scope of the request, thus shrinking the number of responsive records. Two days later he sent a “winnowed down list, in order of importance.”

He then followed up the smaller request on Feb. 5, to which UofL stated some records were received but more were expected to come, and the request was still quiet voluminous.

At the six-month mark, on June 30, 2016, McCarthy again requested a status of his request. On July 1, UofL confirmed it owed McCarthy a response and would do its best to get the records to him the following week.

McCarthy appealed on Aug. 18 for numerous reasons, namely the request had not been filled within eight months after the request. He also said UofL has failed to cite what actions it has taken to fulfill the request or provide an adequate timeline for production of the records.

The university responded by saying the appeal should not be considered because it provided McCarthy records on a rolling basis, and the delay on the second request was because of the sheer volume of the first.

Beshear found that even if the response was timely, it was still deficient because it failed to provide McCarthy with access to existing records within that period or cite applicable statutes to give an extension and cited no exemptions.

He stated that UofL violated the Open Records Act by failing to provide a timely response and provide access to the requested documents, nor invoke the need for a delay by providing a thorough explanation of why it was necessary.

The vague reasons for the delay and sparse estimates of time were insufficient, because KRS 61.872(5) requires a detailed explanation and the place, time and earliest date at which records would be available.

Due to the University not denying any portion of the second request by McCarthy, Beshear determined that his office has no basis upon which to find a substantive violation of the Act by UofL at the point the opinion was issued. 

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.