NOT TO BE PUBLISHED

97-ORD-36

March 4, 1997

In re: Johnny Palmer/Clark County Board of Education

Open Records Decision

This matter comes to the Attorney General on appeal from the Clark County Board of Education's response to Mr. Johnny Palmer's open records request for a copy of “all receipts from contract services and all supplies at the bus garage for last quarter.”

Mr. Donald W. Pace, Superintendent, Clark County Board of Education, responded to Mr. Palmer's request, notifying him, as follows:

There are tentatively 119 items to be released as interpreted by statutes. The cost for this information requires a deposit of $10.90. The information not provided is exempt under auspices of K.R.S. 61.878(1)(k) and (l); 96-ORD-139; 95-ORD-48; and OAG 97-ORD-2. This information is available Jan. 28, 1997.

In his letter of appeal, Mr. Palmer does not set forth from what particular aspect of the Board's response he is appealing. We assume he appeals that from that portion of the agency's response in which certain records were withheld.

On February 4, 1997, we sent a “Notification of Receipt of Open Records Appeal” to the Board and enclosed a copy of Mr. Palmer's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. John O. Sheller, Esq., counsel for the Board, provided this office with a response to the letter of appeal.

In his response, Mr. Sheller states, in relevant part:

Although the basis of Mr. Palmer's appeal is not clear, it appears that he objects to the Board's position that a public agency is not required to create, compile, or summarize records for a requesting party. Mr. Palmer apparently objects to this position notwithstanding the Board's decision granting his request to inspect and copy the underlying records themselves. Mr. Palmer has been provided copies of the 119 documents referenced in the Board's response.

The withheld records consist of employee drug test results and medical examinations which are exempt from disclosure under KRS 61.878(1)(a), (k) and (l). These records consist of about fifteen documents.

. . .

The Board also produced several redacted documents to Mr. Palmer, consisting of our law firm's bills for legal services to the Board. The Board redacted the description of services, but provided information concerning the attorney(s) doing the work, the dates the work was performed, the amount of time expended and the dollar amount(s) charged and paid. The redaction was proper under KRS 61.878(4); 95-ORD-12, because the description of services constitutes privileged attorney work product and privileged attorney client communications. 96-OMD-191; 95-ORD-18; 94-ORD-88; 94-ORD-99. See, also, 96-ORD-176.

The issue before us is whether the Board's response was consistent with the Open Records Act. For the reasons which follow, we conclude the Board's response was consistent in part and inconsistent in part with the Act.

KRS 61.880(1) requires that upon receipt of an open records request, a public agency must respond in writing within three business days indicating whether the requester may inspect the requested records. If any records are to be withheld from inspection, the agency should include a statement of the specific exception which authorizes the agency to withhold the record; and a brief explanation of how the exception applies to the records withheld.

The Board's initial response was procedurally deficient to the extent it does not give a brief or general description of the records withheld. However, the deficiency is mitigated by the Board's subsequent response which describes the records withheld or redacted and how the particular exceptions cited applies to them. A copy of the subsequent response should be forwarded to Mr. Palmer, if it has not already been done.

In 97-ORD-2, we held that the Board properly withheld disclosure of records of employee drug test results, as such was authorized by KRS 61.878(1)(k) and applicable federal law and regulations. Thus, this portion of the response was consistent with the Open Records Act.

Mr. Sheller's response further indicates that Mr. Palmer was provided with redacted copies of his law firm's bills for legal services. He states that description of the services provided was redacted. This portion of the response is inconsistent with prior opinions of the office and the Open Records Act.

Records which reflect the general nature of the legal services provided are not protected by the attorney-client privilege. OAG 92-92; OAG 92-14. Should any portion of the billings disclose substantive legal matters protected by the attorney-client privilege and exempt under KRS 61.878(1)(l), that portion may be properly redacted. 93-ORD-58. Accordingly, to the extent such can be done without revealing substantive legal matters, Mr. Palmer should be provided with a general description of the legal services provided.

We do note that the Act contemplates a spirit of cooperation between the parties involved in an open records request. As described above, the Board provided Mr. Palmer with access to 119 records in response to his open records request. In order to facilitate the prompt and efficient processing of an open record request, we urge parties to work toward an amiable resolution of their differences and understandings as to which records have or have not been provided prior to bringing an appeal to this office or to the circuit court.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General

130

Distributed to:

Johnny Palmer

13464 Irvine Road

Winchester KY 40391

Donald W. Pace

Superintendent

Clark County Board of Education

1600 W. Lexington Avenue

Winchester KY 40391

John O. Sheller

Smith and Smith

400 North, First Trust Centre

200 South Fifth Street

Louisville KY 40202-3238