NOT TO BE PUBLISHED
May 2, 1994
IN RE: Brian L. Cullinan, City of Louisville
OPEN RECORDS DECISION
This appeal originated in two separate requests for public records submitted by Mr. Brian L. Cullinan to the City of Louisville on August 24, 1993. Mr. Cullinan requested access to:
1. [A]ll records concerned with all contracts between the City of Louisville (and any of its agencies) with Donald L. Cox (or any firm with which he is associated) for fiscal years 1989 to date;
2. [A]ll records concerned with all contracts between the City of Louisville (and any of its agencies) with Donald L. Cox (or any firm with which he is associated) for fiscal years 1989 to date.
The City, through Assistant Director of Law, Thomas Lukins, responded in a single letter dated August 31, 1993. Mr. Lukins advised:
These records are now being compiled. We anticipate that they can be made available for your inspection in approximately three weeks. The reason for this estimated time frame is that each page of each invoice submitted by Mr. Cox and Mr. Burke must be
reviewed so that exempt materials can be separated from those provided to you.
In a followup letter dated September 23, 1993, Mr. Lukins indicated that "the requested records total approximately 400 pages." He explained that all of the invoices contain some exempt material and that "the process of deletion of that which is exempt is proving to be quite time-consuming." Mr. Lukins stated that a portion of the records would be available for inspection in ten days.
Following a telephone inquiry several days later, Brian Cullinan and R. Keith Cullinan arranged to inspect a portion of the records in the City Law Department. They discovered that no records were available relative to Mr. Cox, and that only partial records were available relative to Mr. Burke. Moreover, those records which were available had been heavily redacted. Dissatisfied with the City's apparent procrastination, R. Keith Cullinan initiated this appeal with the Attorney General.
In his letter of appeal, Mr. Cullinan objects to the City's "practice of wholesale redaction of records at its apparent whim." He notes that the City failed to satisfy the procedural requirement of the Act, codified at KRS 61.880(1). The City did not cite the specific exception authorizing the withholding of portions of the records, or explain how the exception applies to the portions withheld. Moreover, Mr. Cullinan asserts, the City continues to thwart the Act through lengthy delays. In closing, he observes, "[T]he present instance has reached ridiculous extremes of delay that are tantamount to denial without procedural or substantive compliance with the Act." He urges this Office to issue a decision consistent with this view.
Once again we are asked to intercede in an open records dispute involving the City of Louisville and the Cullinans. No doubt both parties to the appeal believe they are acting in good faith relative to their rights and obligations under the Open Records Act. No doubt their patience is exhausted. In view of these facts, we are reluctant to assess fault. Nevertheless, we must conclude, based on the facts presented, and assuming those facts to have been fairly and accurately recited, that the City of Louisville violated the Act by failing to afford Brian Cullinan and R. Keith Cullinan timely access to all nonexempt records identified in Brian Cullinan's request. To the extent that
they are dispositive of the issues presented in this appeal, we hereby incorporate 93-ORD-134 and 94-ORD-29. The City should take immediate action to correct this violation.
Although in OAG 92-14 this Office held that the monthly statements and other business records prepared by a public agency's attorney which reflect the general nature of the legal services rendered are not exempt from inspection, we also recognized that business records which disclose substantive matters protected by the attorney client privilege, and exempt under KRS 61.878(1)(k), could be redacted. Thus, the City's decision to redact the records was entirely proper. Nevertheless, as Mr. Cullinan correctly notes, in redacting the record, the City is obligated to cite the exception upon which it relies, and to briefly explain how that exception applies to the portions of the records withheld. Moreover, it cannot indefinitely delay the release of records by invoking KRS 61.878(4). To the extent that the City failed to comply with KRS 61.880 and KRS 61.878(4), it violated the Open Records Act.
Mr. Cullinan and the City of Louisville may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Tom Lukins
Assistant Director of Law
City of Louisville
Department of Law
Room 200, City Hall
Louisville, Ky 40202-2771
Hon. R. Keith Cullinan
Attorney At Law
One Corporate Plaza, 22nd Fl.
220 W. Main St.
Louisville, KY 40202