15-ORD-226
December 30, 2015

In re: Scott Dickens/Louisville Water Company
Summary: Louisville Water Company did not violate the
Open Records Act in not providing cell phone
communications on the private personal devices of its
employees. Louisville Water Company violated the Open
Records Act in withholding bank transactions in their
entirety, rather than redacting private information, and in
not providing responsive attachments to emails.
Open Records Decision
The questions presented in this appeal are whether the Louisville
Water Company (“LWC”) violated the Open Records Act in withholding
cell phone communications, such as calls or text messages, which are
located on the personal cell phones of its employees, in withholding
bank transactions in their entirety under the personal privacy
exemption, and in not providing responsive attachments. We find that
LWC did not violate the Open Records Act in not producing cell phone
communications on the private devices of its employees. LWC violated
the Open Records Act in withholding bank transactions in their entirety
rather than redacting private information, and in not providing
responsive attachments to emails.

 15-ORD-226
Page 2

BACKGROUND
Scott Dickens sent an open records request to LWC by email on
May 21, 2015. Dickens requested:
1. All communications sent, received, or reviewed by
James Brammell, Amber Halloran, Ed Chestnut, or
David Vogel which refer or relate (either explicitly,
implicitly, directly, or indirectly) to Barbara Dickens
(whether on Louisville Water Company or personal
equipment or devices). These include both hard copy
and electronic records.
....
8. Every email sent or received by Amber Halloran via a
Louisville Water Company email account since March
31, 2015.
....
10.
All records of reimbursement to or payment of
expenses for either James Brammell or Amber
Halloran from January 1, 2014 through the present,
including copies of actual invoices, folios, and
receipts.
11.
All records of cell phone communications
(whether calls or text messages and whether on
Louisville Water Company or personal devices).
These include both hard copy and electronic records.1
Dickens submitted another request by email to LWC on May 29, 2015,
requesting all open records requests pertaining to Brammell or
Halloran from January 2014 to the present, all documents relating to
LWC’s responses to those requests, including cell phone
communications, and documents referring to LWC’s policies and
procedures for responding to open records requests from January 2013
through the present.
1

Dickens’ other requests dated May 21, 2015 do not appear to be at issue in this
appeal.

 15-ORD-226
Page 3

LWC responded to Dickens’ May 21, 2015 request on June 11,
2015. Regarding request number 1, LWC stated:
2

Documents on personal devices belonging to these
individuals are not within the possession of the Louisville
Water Company. . . . In addition, some of the documents
requested would be protected from production by the
attorney-client privilege and are otherwise exempt from
production pursuant to KRS 61.878(j) as they are
“preliminary
recommendations
and
preliminary
memoranda in which opinions are expressed . . .”
Furthermore, some of the documents are exempt from
production pursuant to KRS 61.878(a) as they constitute a
public record “containing information of a personal nature
where the public disclosure thereof would constitute a
clearly unwarranted invasion of personal privacy.”
Regarding request number 8, LWC stated, “some of the documents
requested would be protected from production by the attorney-client
privilege and are otherwise exempt from production pursuant to KRS
61.878(j) as they are ‘preliminary recommendations and preliminary
memoranda in which opinions are expressed . . .’” Regarding request
number 11, LWC stated that it “is still in the process of compiling this
information. We will produce this documentation next week.” On June
19, 2015, LWC sent a follow-up to its response to Dickens’ May 21,
2015 request, in which it reiterated its response to request number 1,
and stated for its response to request number 11 that “documents on
personal devices belonging to these individuals are not within the
possession of the Louisville Water Company.” 3
2

KRS 61.880(1) provides that “each public agency, upon any request for records
made under KRS 61.870 to 61.884, shall determine within three (3) days . . . 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.” However, Dickens does not raise this issue in his appeal, and accordingly
we do not address it.
3
LWC also responded to Dickens’ May 29, 2015 request on June 11 and 19, 2015,
producing responsive documents, but similarly invoking the preliminary documents
exemption in KRS 61.878(1)(j) and stating that “documents on personal devices are

 15-ORD-226
Page 4

Dickens initiated this appeal on Oct. 7, 2015. LWC responded to
Dickens’ appeal on Oct. 21, 2015, and Dickens replied to LWC’s
response on Oct. 26, 2015. On Nov. 25, 2015, this office requested
additional information from LWC under KRS 61.880(2)(c). We asked
whether responsive records existed that LWC was withholding solely
under the personal privacy exemption of KRS 61.878(1)(a), or under
the personal privacy exemption in combination with other exemptions,
and requested that those documents be produced for in camera
review. LWC responded on Dec. 7, 2015, stating:
Please note that the first two pages were withheld based
solely on the personal privacy exemption in KRS 61.878(1)
(a), and the Louisville Water Company continues to
maintain that those documents are subject to that
exemption. As stated in 98 ORD 7, “Social security
numbers and bank account numbers are examples of
information of a personal nature the public the [sic]
disclosure of which would constitute an unwarranted
invasion of personal privacy. This information may properly
be excluded from disclosure under KRS 61.878(1)(a).” . . .
The other documents were produced but personal
information such as bank account and credit card numbers
were redacted from them as outlined in our response to Mr.
Dickens.4,5
ANALYSIS
I.

Cell phone communications

not within the possession of the Louisville Water Company.”
4
LWC additionally stated that there were no records being withheld on the basis of
the personal privacy exemption in combination with other exemptions.
5
Dickens replied to LWC’s response to our request for information on Dec. 9, 2015,
requesting clarification as to whether LWC searched for communications on private
electronic devices. However, our decision below renders Dickens’ request for
clarification moot.

 15-ORD-226
Page 5

Dickens requests cell phone records, such as calls or text
messages, stored on personal electronic devices. KRS 61.870(2)
provides:
“Public record” means all books, papers, maps,
photographs, cards, tapes, discs, diskettes, recordings,
software, or other documentation regardless of physical
form or characteristics, which are prepared, owned, used,
in the possession of or retained by a public agency. “Public
record” shall not include any records owned or maintained
by or for a body referred to in subsection (1)(h) of this
section that are not related to functions, activities,
programs, or operations funded by state or local authority.
In order to determine whether a document is a public record, the
threshold question is whether it is in the possession of the agency. Cell
phone communications, including calls or text messages, made using a
private cell phone that is paid for with private funds, are not prepared
by or in the possession of a public agency. “A public agency cannot
produce . . . records . . . which the agency does not possess.” 11-ORD069. Cell phone communications, such as calls and text messages, on
the private cell phones of its employees are not within the possession
of LWC. Accordingly, LWC did not violate the Open Records Act in
withholding cell phone communications on the private devices of its
employees. This office notes, however, that a document created using
public funds stored or otherwise hidden on a private cell phone retains
its status as a public record and will still be subject to the Open
Records Act. While acknowledging the limitations of the existing legal
framework to address communications carried out on private cell
phones, this office admonishes public employees against using private
cell phones to carry out public work in an attempt to shield such
communications from the purview of the Open Records Act.
II.

Attorney-client privilege

In Dickens’ reply to LWC’s response to his appeal, Dickens states
that “LWC’s response is limited to a defense of its redaction of

 15-ORD-226
Page 6

documents based upon the attorney-client privilege. Dickens does not
disagree with those redactions.” Since Dickens does not appear to
continue to contest withholding or redaction of records based on the
attorney-client privilege, we consider this issue as moot. 40 KAR 1:030
§ 6.
III.

Personal privacy exception

Dickens argues that LWC has additionally withheld documents
based on the exception in KRS 61.878(1)(a), which exempts from the
Open Records Act “public records containing information of a personal
nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” After a request for
clarification by this office, LWC has indicated that it did withhold two
pages of documents based on the personal privacy exception, and
provided other documents with redactions. The two pages referenced
are an email dated Mar. 31, 2015, from Cindy Brieschke, a budget
specialist at LWC, to Halloran and others, and a spreadsheet listing
bank activity on Mar. 30, 2015. The other documents provided to this
office are reimbursement for travel expenditures, which LWC indicates
it has already provided to Dickens. Thus, only the email and the page
listing bank activity are at issue.
KRS 61.878(4) provides that “if any public record contains
material which is not excepted under this section, the public agency
shall separate the excepted and make the nonexcepted material
available for examination.” A two-part test is used to determine the
application of the personal privacy exception:
First, we must determine whether the information sought is
of a personal nature. Second, we must examine whether
the public disclosure of this information would constitute a
“clearly unwarranted invasion of personal privacy.” We do
this by weighing the privacy interests of the persons
involved against the public's interest in disclosure.

 15-ORD-226
Page 7

Cape Publications, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d
818, 821 (Ky. 2008). LWC cites 98-ORD-7 for the holding that “social
security numbers and bank account numbers” are within the personal
privacy exemption. In 98-ORD-7, the requester sought “copies of print
screens of forty-eight abandoned property accounts that were reported
to the Department of the Treasury in 1997.” Although we did find that
“social security numbers and bank account numbers are examples of
information of a personal nature the public disclosure of which would
constitute an unwarranted invasion of personal privacy,” in that same
paragraph, we stated that “the print screens contain information which
is not exempt from inspection under the Open Records Act. The
Department cannot properly invoke KRS 61.878(1)(a) to authorize
wholesale nondisclosure of the print screens.”
The listing of bank activity does contain bank account numbers,
but it additionally lists credits and debits taking place to LWC’s bank
accounts on Mar. 30, 2015. Applying the two-part test, the credits and
debits of LWC’s bank accounts reflect expenditures of public funds, and
are not information of a personal nature. “Amounts paid from public
coffers are perhaps of uniquely public concern.‘“ 10-ORD-140. “As far
as open records are concerned, it is apparently the policy of the
Legislature that wherever public funds go, public interest follows.” 05ORD-203. Although LWC may redact the specific bank account
numbers, the public otherwise has an interest in the expenditures of
LWC, and LWC cannot use the presence of bank account numbers to
withhold the transaction statements in their entirety. Accordingly, in
withholding records relating to bank transactions in their entirety,
rather than providing the records with the bank account numbers
redacted, LWC violated the Open Records Act.
IV.

Attachments

Dickens stated in his appeal that “LWC has produced printed
copies of documents, including emails, which have attachments, but
LWC has failed to produce those attachments.” LWC responded that
“Mr. Dickens never identified any documents which were missing
attachments. LWC would be happy to provide any attachments that

 15-ORD-226
Page 8

were missing that were not exempt from production.” Dickens replied
that “LWC’s attempt to place the burden on Dickens to go through all
of the documents it has produced to determine which ones had
attachments which LWC failed to produce is improper. LWC has a duty
to produce all records which are subject to the Act.” Dickens is correct.
An agency “must itself identify and review its responsive records” and
“release any that are not exempt.” City of Fort Thomas v. Cincinnati
Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). The burden is on the agency
to identify responsive records and produce them or withhold them
based on exemptions, and not the requester, as in Open Records Act
cases, “only the agency knows what is in its records.” Id. Accordingly,
to the extent LWC did not provide responsive attachments to emails,
LWC violated the Open Records Act.
CONCLUSION
In summary, LWC did not violate the Open Records Act in
withholding cell phone communications on the private cell phones of
its employees. LWC violated the Open Records Act in withholding bank
documents in their entirety rather than redacting bank account
numbers and other private information. LWC also violated the Open
Records Act in not providing all responsive attachments to emails.
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 proceedings.

Jack Conway
Attorney General

Benjamin Long
Assistant Attorney General

 15-ORD-226
Page 9

#402

Distribution:

Scott T. Dickens
Dana L. Collins