18-ORD-005
January 4, 2018

In re: Kentucky Center for Investigative Reporting/Department of
Military Affairs
Summary: Department of Military Affairs failed to meet
its burden to establish exemptions under KRS 61.878(1)(a)
or (h), or the attorney work product doctrine, for the
entirety of 12 files dealing with employee complaints of
sexual harassment, sex/gender discrimination, and/or
sexual assault. Identifying information on complainants in
sensitive cases could be redacted under KRS 61.878(1)(a)
if its disclosure would be a clearly unwarranted invasion of
personal privacy. Matters still pending final agency action
were subject to exemption as “preliminary” under KRS
61.878(1)(i) and (j), whereas records relating to completed
matters must be disclosed unless they fit the exempted
categories and were not adopted as the basis of final
action.
Open Records Decision
The question presented in this appeal is whether the Department
of Military Affairs (“Department”) violated the Open Records Act in its
denial of Kentucky Center for Investigative Reporting (“KCIR”) reporter
Brendan McCarthy’s November 3, 2017, request to inspect records
relating to certain complaints made by state employees. For the
reasons that follow, we find that the Department has not met its

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Page 2

burden to sustain its total denial of access to these records, but may
lawfully withhold some materials.
Mr. McCarthy requested to inspect records meeting the following
description:
All complaints made by state employees to your agency, or
an agency under your jurisdiction, related to sexual
harassment, sex/gender based discrimination or sexual
assault since 1/1/2012
Any/all summaries of those internal investigations, and the
resolution of those investigations
Any/all records of settlements related to those complaints
Reports detailing any/all disciplinary action taken in
response to those complaints, including but not limited to
actions against the complainant and the subject of the
complaint.
Pursuant to an agreed extension of time, the Department replied on
November 20, 2017, that there were 12 “files and/or records”
responsive to Mr. McCarthy’s request, all of which were denied in their
entirety on the following grounds:
12 files and/or records are exempt from inspection
pursuant to KRS 61.878(1)(a) as they are public records
containing information of a personal nature where the
public disclosure thereof would constitute a clearly
unwanted [sic] invasion of personal privacy. Namely, the
person making the report expects confidentiality and the
identity of the victim could be deduced upon finding the
work location and time period of the complaint. Disclosing
this information may have a chilling effect on future
reporting.
12 files and/or records are exempt from inspection
pursuant to KRS 61.878(1)(i) as they are records other than
correspondence giving notice of a final action of the
agency.

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12 files and/or records are exempt from inspection
pursuant to KRS 61.878(1)(j) as they are preliminary
recommendation and memorandum [sic] in which opinions
are expressed.
3 of the 12 files and/or records are exempt from
inspection pursuant to KRS 61.878(h) [sic] as they are
actions in adjudication.
3 of the 12 files and/or records are exempt as they
are attorney client work product.
KCIR initiated this appeal on November 30, 2017. We address, in turn,
each of the arguments made by the Department for refusing inspection
of the records.
Privacy under KRS 61.878(1)(a)
KRS 61.878(1)(a) excludes from the application of the Open
Records Act “[p]ublic records containing information of a personal
nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” This language “reflects a
public interest in privacy, acknowledging that personal privacy is of
legitimate concern and worthy of protection from invasion by
unwarranted public scrutiny,” while the Open Records Act as a whole
“exhibits a general bias favoring disclosure” and places the burden of
establishing an exemption on the public agency. Kentucky Bd. of
Examiners of Psychologists v. Courier-Journal and Louisville Times Co.,
826 S.W.2d 324, 327 (Ky. 1992). This necessitates a “comparative
weighing of the antagonistic interests. Necessarily, the circumstances
of a particular case will affect the balance. [T]he question of whether
an invasion of privacy is ‘clearly unwarranted’ is intrinsically
situational, and can only be determined within a specific context.” Id.
at 327-28.
The public interest in open records has been analyzed as follows
by the Kentucky Court of Appeals:

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At its most basic level, the purpose of disclosure focuses on
the citizens’ right to be informed as to what their
government is doing.
That purpose is not fostered
however by disclosure of information about private citizens
that is accumulated in various government files that
reveals little or nothing about an agency’s own conduct.
Zink v. Com., Dep’t of Workers’ Claims, Labor Cabinet, 902 S.W.2d 825,
829 (Ky. App. 1994).
In this case, it is the Department’s burden under KRS 61.880(2)
(c) to establish that the privacy interest at issue outweighs the public’s
interest in scrutinizing the work-related conduct of public employees
and assessing the government’s response to employee complaints.
The Department argues that the complaining employees in the
withheld records have an expectation of confidentiality, such that their
privacy interest outweighs the public interest in disclosure of any of the
requested records, including the outcomes of investigations,
settlement agreements, and disciplinary actions taken. In a response
to this appeal dated December 7, 2017, staff attorney Charla R. Sands
argues:
Records that involve sexual misconduct have previously
been the type of records that are held exempt from
disclosure because the matters are largely personal.
Kentucky Board of Examiners of Psychologists v. The
Courier-Journal and Louisville Times Company, Ky., 826
S.W.2d 324 (1992). The assumption of these employees is
that the information they provide will be used for internal
purposes. In addition, if position, and work station were
disclosed as a part of these records, the identity of the
complainant may be able to be ascertained.
Once
employees realize their personal experiences and
information may be available to the public, it will have a
chilling effect on future reporting.
We observe in the first place that Kentucky Bd. of Examiners, supra,
had to do with alleged sexual misconduct by a licensed psychologist in
the context of the psychologist-patient relationship, and the records at

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issue were “rife with details of clients’ marital and familial relationships
and psychological symptoms, as well as [the psychologist’s] clinical
impressions and course of therapy.” Id., 826 S.W.2d at 328. In this
case, by contrast, the records requested by Mr. McCarthy encompassed
complaints of discrimination and harassment, in addition to sexual
assault. The Department groups all of these under a vague heading of
“sexual misconduct” without specifying the nature or category of the
12 complaints at issue (which could in theory be exclusively
discrimination complaints pertaining to non-intimate conduct).
Nevertheless, regardless of the specific nature of the 12
complaints, we find that disclosing the requested records would not
constitute a clearly unwarranted invasion of personal privacy. “In
general, we believe that where the allegations concern a public
employee, and arise in the context of performance of his or her
employment, the public interest in regulation outweighs the
employee’s privacy interest.” 98-ORD-45.
“In weighing the right of individual privacy against the right of
the public to monitor the conduct of its servants, we find that
complaints of sexual harassment and consequent disciplinary action, or
the decision to take no action, are matters of legitimate public concern
which outweigh the privacy rights of the public servant.” 96-ORD-86.
While recognizing that such complaints “are of a uniquely sensitive
nature,” this office has concluded that “conduct giving rise to such
complaints can only be characterized as misconduct of the most
egregious character, and a matter in which the public has at least as
great, if not a greater, interest than other forms of misconduct.” Id.
This principle holds true “as to both substantiated and
unsubstantiated complaints of sexual harassment.” 98-ORD-45. “It is
only through full disclosure of complaints, both substantiated and
unsubstantiated, that the public can effectively monitor public agency
action, and insure that the agency is promptly, responsibly, and
thoroughly investigating and acting upon allegations of employee
misconduct.”
94-ORD-76.
Furthermore, “[a]n individual who is
impelled to file a complaint against a public agency employee is more

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likely to act responsibly … if the entire process is exposed to the light
of public scrutiny [, and p]ublic employees against whom false
allegations have been made will be vindicated by disclosure of records
revealing that no disciplinary action was taken against them.” 97ORD-121. Accordingly, we find that the balance weighs in favor of
disclosure and the Department has failed to justify the use of KRS
61.878(1)(a) to withhold all of the records at issue.
This is not to suggest that the complaining employees have no
cognizable privacy interest in their personal information in highly
sensitive cases.1 Those “portions of the records that contain personally
identifiable information implicating significant privacy interests but
unrelated to the specific allegations [may] be withheld on the basis of
KRS 61.878(1)(a).” 02-ORD-231. Pursuant to KRS 61.878(4), “[i]f any
public record contains material which is not excepted under this
section, the public agency shall separate the excepted and make the
non-excepted material available for examination.” Thus, as to those
complainants, the Department may redact “names, occupation, and
other specific identifying information or non-work-related statements,”
provided there is a strong interest in personal privacy and if such
redaction does not “obscure … the general nature of the complaint [or]
make it unduly difficult to assess the appropriateness of the agency’s
response.” 15-ORD-163.
Preliminary records under KRS 61.878(1)(i) and (j)
KRS 61.878(1)(i) and (j) create exceptions to the Open Records
Act in the cases of, respectively:
(i)
Preliminary drafts, notes, correspondence with
private individuals other than correspondence which is
intended to give notice of final action of a public agency;
[and]

1

Cf. Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2003), rev.
denied, Nov. 10, 2004 (disclosure of identifying information in police incident reports
concerning victims of sexual offenses would constitute unwarranted invasion of
personal privacy).

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(j)
Preliminary recommendations, and preliminary
memoranda in which opinions are expressed or policies
formulated or recommended[.]
In University of Kentucky v. Courier-Journal & Louisville Times Co., 830
S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear
that “materials that were once preliminary in nature lose their exempt
status once they are adopted by the agency as part of its action.”
(Emphasis added.) In 01-ORD-47, we summarized the manner in which
“preliminary” records under KRS 61.878(1)(i) and (j) may retain or lose
their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is
made to take no action, the requested records are
protected by KRS 61.878(1)(i) and (j). If the records are
adopted as part of that final action, they will forfeit their
preliminary characterization. If not adopted, they will
retain their preliminary character.
A record “is adopted as the basis of final action insofar as the final
action ‘necessarily stem[s] from’ that document.”
10-ORD-034
(quoting City of Louisville v. Courier-Journal and Louisville Times Co.,
637 S.W.2d 658, 659, 660 (Ky. App. 1982). It is not necessary that the
record be explicitly adopted or incorporated by reference, so long as it
constitutes the basis for the final agency action. “In our view, the
courts purposefully employed the broader concept of “adoption” rather
than “incorporation,” relative to preliminary investigative reports and
records, to avoid a narrow, legalistic interpretation.” 01-ORD-83 (citing
City of Louisville, supra).
As to any complaints still pending (of which the Department has
indicated there may be as many as three), records which are part of an
ongoing investigation, including the initiating complaint, are
preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus
exempt from public inspection, until final action is taken on the matter.
(See 10-ORD-065 and decisions cited therein.) Accordingly, records
that are part of those pending matters, including the initiating

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complaints, may be lawfully withheld until “the imposition of final
agency action, including the decision to take no action.” 05-ORD-005.
As to those matters which are completed, or those complaints on
which a decision was made to take no action, the status of each
document depends on, first, whether it falls within the scope of KRS
61.878(1)(i) or (j), and second, whether it has been adopted as the
basis of final agency action. “Final agency action” is understood as
“when the ultimate issue to be decided [is] resolved.” University of
Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013). Counsel for
the Department argues as follows:
Materials in the files and/or records are exempt from
inspection pursuant to KRS 61.878(1)(i) as they are records
other than correspondence giving notice of a final action of
the agency and the files and/or records are exempt from
inspection pursuant to KRS 61.878(1)(j) as they are
preliminary recommendation and memorandum [sic] in
which opinions are expressed. The information contained
in in [sic] the records at issue contain [sic] notes and items
which are work papers and preliminary drafts and not the
final report. Typically this is the type of information which
is previously been [sic] found exempt from and [sic] open
records request.
We note that exempt records in this context must be in one of the
categories specified in KRS 61.878(1)(i) or (j), such as notes or
preliminary drafts. Furthermore, even records which fall into those
categories do not retain their preliminary character if they are adopted
as the basis of final agency action.
The initiating complaint, in particular, must always be made
available for public inspection, as it necessarily forms part of the basis
of the agency’s final action. 05-ORD-005; Palmer v. Driggers, 60
S.W.3d 591 (Ky. App. 2001). Therefore, as to those matters which are
no longer pending, the Department may not rely upon KRS 61.878(1)(i)
and (j) indiscriminately to withhold the entirety of the files pertaining
to completed matters, but only those records which specifically qualify

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under the exemptions and which were not adopted as part of the basis
of final agency action.
KRS 61.878(1)(h) and attorney work product
KRS 61.878(1)(h), sometimes known as the “law enforcement”
exception to the Open Records Act, permits nondisclosure of:
Records of law enforcement agencies or agencies involved
in administrative adjudication that were compiled in the
process of detecting and investigating statutory or
regulatory violations if the disclosure of the information
would harm the agency by revealing the identity of
informants not otherwise known or by premature release of
information to be used in a prospective law enforcement
action or administrative adjudication. Unless exempted by
other provisions of KRS 61.870 to 61.884, public records
exempted under this provision shall be open after
enforcement action is completed or a decision is made to
take no action; however, records or information compiled
and maintained by county attorneys or Commonwealth’s
attorneys pertaining to criminal investigations or criminal
litigation shall be exempted from the provisions of KRS
61.870 to 61.884 and shall remain exempted after
enforcement action, including litigation, is completed or a
decision is made to take no action.
The exemptions
provided by this subsection shall not be used by the
custodian of the records to delay or impede the exercise of
rights granted by KRS 61.870 to 61.884.
The Department has invoked this subsection, in conjunction with the
attorney work product doctrine, which is codified at CR 26.02(3) and
incorporated into the Open Records Act by operation of KRS 61.878(1)
(l). (See, e.g., 11-ORD-108). Specifically, the Department argues:
Three (3) of the files and/or records are exempt from
inspection pursuant to KRS 61.878(h) [sic] as they are
actions in adjudication and/or exempt as they are attorney
client work product in which portions of the work are
privileged as attorney-client work product [sic].

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By its express terms, KRS 61.878(1)(h) applies only to records of
“law enforcement agencies or agencies involved in administrative
adjudications.” The Department has failed to establish that it is either
of these. Accordingly, although some of the complaints may be “in
adjudication” by some unspecified entity, the Department has not
provided sufficient information to meet its burden of proof on this
threshold issue. Nor has the Department explained how the records
are “compiled in the process of detecting and investigating statutory or
regulatory violations” or made a showing of harm to the agency that
would result from their disclosure. We therefore find KRS 61.878(1)(h)
inapplicable.
As to the attorney work product doctrine, we find a similar failure
by the Department to meet its burden. A “bare assertion relative to
the basis for denial … does not satisfy the burden of proof.” 00-ORD10. The work product doctrine may only be invoked upon a showing
that “each of the elements” in CR 26.02(3) is present. 03-ORD-015.
There is nothing in the record to support a claim that all of the records
in the files in question represent “the mental impressions, conclusions,
opinions, or legal theories of an attorney” within the meaning of CR
26.02(3). While some relevant documents might fall into this category,
the Department has failed to meet its burden “to provide sufficiently
detailed information to substantiate its position” on this issue. 11ORD-108.
Conclusion
The Department for Military Affairs violated the Open Records Act
by withholding all 12 responsive files in their entirety. Identifying
information as to the state employees making the complaints in
sensitive cases may be redacted pursuant to KRS 61.878(1)(a) where
disclosure would constitute a clearly unwarranted invasion of personal
privacy. Investigative files may be withheld as preliminary under KRS
61.878(1)(i) and (j) if final agency action has not yet occurred. As to
completed matters, the Department may withhold under KRS
61.878(1)(i) and (j) only those records which fall within the enumerated

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categories in those subsections and were not adopted as part of the
basis of final action. The Department has not met its burden of proof
as to KRS 61.878(1)(h) or the attorney work product doctrine.
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 shall be
notified of any action in circuit court, but shall not be named as a party
in that action or in any subsequent proceedings.
Andy Beshear
Attorney General

James M. Herrick
Assistant Attorney General
#494
Distributed to:
Ms. Kate Howard
Charla R. Sands, Esq.