May 17, 1993






IN RE: Brenda M. Freeman/City of Henderson




This matter comes to the Attorney General on appeal from the actions of the City of Henderson, through its attorney Mr. H. Randall Redding, in responding to a series of open records requests submitted by Ms. Brenda M. Freeman. On December 22, 1992, Ms. Freeman requested copies of "all records relating to the appearance of . . . City Attorney, H. Randall Redding, in the Henderson Circuit Court on December 21, 1992, on behalf of Marvin L. Dill." Ms. Freeman specifically requested documents reflecting "all costs associated with the matter, including the research that [the City's] attorney was ordered to do by the Court . . . ." In an earlier request, dated November 27, 1992, Ms. Freeman asked for a copy of "the property [h]istory of 113 Horseshoe Drive as maintained by your Codes Department." Ms. Freeman is engaged in an ongoing dispute with the City of Henderson arising from the demolition of a structure located on her property. This dispute has culminated in a civil action against the City's Codes Administrator, Marvin Dill.


On January 15, 1993, Mr. Redding responded to Ms. Freeman's December 22 request for documents relating to his appearance on behalf of Mr. Dill in the Henderson Circuit Court. Mr. Redding advised Ms. Freeman as follows:


Your request for all copies of records relating to this case does not specify what you are asking for and it is further my opinion that these records are protected by the attorney's work product and

confidentiality provisions and . . . KRS 61.878(1)(k), which prohibits information to be revealed that is protected by enactment of any general assembly provisions.


This is an active piece of litigation which we are involved in, and at this time I must deny your request for production.


According to Ms. Freeman, Mr. Redding failed to respond to her November 27 request for the "property history" of 113 Horseshoe Drive.


In her letter of appeal to this Office, Ms. Freeman asserts that Mr. Redding intentionally misrepresented her December 22 request. She maintains that she is not interested in receiving copies of his research and work product, but is instead interested in receiving "copies of letters, memorandums [sic], notes, minutes, recordings, etc. that passed between City officials, appointed and elected, related to the decision to reject [her] enjoinder [sic] not to spend public funds for a private purpose." In addition, Ms. Freeman charges that Mr. Redding's failure to respond to her request for the "property history" form constitutes a violation of the Open Records Act. She expresses concern about the City's retention of records which it previously released to her, and which she resubmitted to the City for "certification," as well as its retention of records obtained from the City Clerk for "authentification" [sic], charging yet another violation of the Open Records Law. Finally, she requests a copy of "the contract between the City and its auditors."


Our review is limited to the City's denial of Ms. Freeman's request for documents relating to the case against Mr. Dill, and its apparent failure to respond to her request for a "property history" form. We do not believe that the questions relating to records retention are cognizable under the Open Records Law, which regulates access to public records and not records management. Nor do we believe that the issue relating to Ms. Freeman's request for the contract between the City and its auditors is ripe for review inasmuch as the City of Henderson had not had an opportunity to respond to the request at the time her appeal was filed.


We are asked to determine if the City of Henderson properly responded to Ms. Freeman's December 22 and November 27, 1992, requests for records. For the reasons set forth

below, and upon the authorities cited, we conclude that the City's response was only partially consistent with the Open Records Law.


We have enclosed a series of opinions issued by this Office which relate generally to a public agency's obligation to release records generated in the course of litigation. These opinions can be distilled to the following principles.


Records which are the work product of an attorney or fall within the parameters of the attorney client privilege are not discoverable under the Kentucky Rules of Civil Procedure [CR 26.02(3)]. Such records are therefore exempt from public inspection under KRS 447.154, which provides in part that no act of the General Assembly shall be construed to limit the right of the Court of Justice to promulgate rules governing practice and procedure in the court. This provision operates in tandem with KRS 61.878(1)(k), which excludes from the mandatory disclosure provisions of the Open Records Law, "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," to authorize the nonrelease of attorney work product. See e.g., OAG 85-20; OAG 87-28; OAG 91-53 (copy enclosed); OAG 91-108.


The public is, however, entitled to review the contracts, vouchers, and other business records of a public agency, including records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys. Should these invoices and billing statements disclose substantive legal matters protected by the attorney client privilege, and exempt under KRS 61.878(1)(k), the exempt material should be separated from the nonexempt material, and the nonexempt material released for inspection. OAG 92-14; OAG 92-92. (Copies enclosed).


The existence of a lawsuit does not nullify the exceptions to public inspection codified at KRS

61.878(1)(a)-(k). Hence, documents generated in the course of litigation, including reports, work notes, and memoranda containing the opinions, observations, advice, and recommendations of agency counsel and personnel are exempt from public inspection pursuant to KRS 61.878(1)(h) and (i) unless they are adopted as final agency action. OAG 86-54; OAG 87-10; OAG 87-64; OAG 89-69; OAG 91-23; OAG 91-108; 92-ORD-1024 (copy enclosed).


Applying these principles to the facts presented in this appeal, we conclude that the City erroneously withheld records relating to payments made to its attorneys, and bills and statements submitted by its attorneys, which did not disclose substantive legal matters. The City was not, however, obligated to release any documents to Ms. Freemen which could properly be characterized as attorney work product, or which fell within the parameters of the attorney client privilege. These documents were exempted from public inspection pursuant to KRS 61.878(1)(k), which incorporates KRS 447.154, KRS 422A.0503, and CR 26.02(3). Nor was the City obligated to release any preliminary documents, including letters, memoranda, notes, minutes, and recordings, which were not adopted as final agency action. These materials were properly withheld pursuant to KRS 61.878(1)(h) and (i).


The City should promptly arrange for inspection of that narrow category of documents which can be denominated "business records" relating to Ms. Freeman's suit against Mr. Dill, but may exercise its discretion in redacting any exempt materials which disclose substantive legal matters.


Ms. Freeman also complains that the City failed to advise her whether it intended to honor her request for the "property history" of 113 Horseshoe Drive. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:


Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, authorizing

the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.


If, in fact, the City failed to notify Ms. Freeman of its decision relative to this document, its actions constituted a procedural violation of the Open Records Law. The City should immediately respond, in writing, to Ms. Freeman's request, if it has not already done so.


The City of Henderson and Ms. Freeman may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.














Distributed to:


Hon. H. Randall Redding

City Attorney

City of Henderson

P. O. Box 716

Henderson, KY 42420


Ms. Brenda M. Freeman

P. O. Box 376

Townville, SC 29689