19-ORD-087
May 10, 2019
In re: Jessica Huseman/State Board of Elections
Summary: Kentucky State Board of Elections (“SBE”)
violated the Open Records Act by improperly delaying
requester’s access to public records. SBE violated KRS
61.874(2)(a) by failing to adhere to a request for electronic
copies of the responsive records, and by requiring payment
of a copying fee for receiving hard copies of records
specifically requested in electronic format. SBE failed to
meet its burden of proof under KRS 61.880(1) and KRS
61.880(2)(c) in denying 362 pages of responsive records.
SBE violated the Act by applying numbering stamps and
“watermarks” to copies of responsive records.
SBE
violated the Act by affording the Secretary of State’s
attorney greater access to public records than the public,
without a statement of a legitimate governmental purpose
for the request. SBE’s claim of five exemptions under KRS
61.878(1) fails as a matter of law. SBE violated KRS
61.880(1) and KRS 61.878(4) when it issued a blanket
denial of responsive records pursuant to the “personal
privacy” exemption of KRS 61.878(1)(a). SBE subverted
the intent of the Act, within the meaning of KRS 61.880(4),
at the direction of the Secretary of State’s office.
Open Records Decision

 19-ORD-087
Page 2

The issue presented in this appeal is whether the Kentucky State
Board of Elections (“SBE”) violated the Open Records Act (“Act”) in the
disposition of a request for records submitted by Jessica Huseman
(“Appellant”), reporter for ProPublica. For the reasons stated below,
we find that SBE violated the Act. We also find that SBE subverted the
intent of the Act, within the meaning of KRS 61.880(4),1 at the direction
of the Secretary of State’s office.
Background
On March 1, 2019, Appellant faxed an appeal to our office. 2
Appellant stated that the appeal was “related to a records request I
placed with the [SBE] on Feb. 8, 2019.”
Appellant stated she
requested documents the SBE had previously provided to Kent Wicker,
a private attorney representing Secretary of State Alison Lundergan
Grimes.3 Appellant provided her email address and asked that SBE
provide copies of the responsive records electronically.
Appellant attached to this appeal SBE’s February 1, 2019
response to Mr. Wicker’s request. She stated Mr. Wicker requested
documents on December 3, 2018, and the SBE provided responsive
records in two parts on January 17, 2019 and February 1, 2019. Acting
Custodian of Records Sandy Milburn issued the response stating SBE
had previously issued a partial response of “documents numbered 1
through 166[.]” She also stated, “[p]lease accept this as our final
1

KRS 61.880(4) states, “[i]f a person feels the intent of KRS 61.870 to 61.884 is being
subverted by an agency short of denial of inspection, including but not limited to the
imposition of excessive fees or the misdirection of the applicant, the person may
complain in writing to the Attorney General, and the complaint shall be subject to the
same adjudicatory process as if the record had been denied.”
2

Our office assigned case number 201900084 to Appellant’s March 1, 2019 appeal of
SBE’s failure to respond to her request for records. On March 21, 2109, Appellant
appealed SBE’s belated response to her request for records. Our office assigned case
number 201900137 to that appeal. We consolidated the two appeals because they
relate to the same open records request.
3

The Secretary of State was chair of SBE at the time Appellant submitted her request
for public records to the agency. On March 3, 2019, House Bill 114 (R.S. 2019) took
effect with an emergency clause, making the Secretary an ex officio, non-presiding,
non-voting member of SBE.

 19-ORD-087
Page 3

response, as we are enclosing…documents numbered 1 through 924.”
The response indicates SBE provided a total of 1,090 pages of records
to Mr. Wicker. Ms. Milburn indicated that SBE was withholding an
unspecified number of responsive records “pursuant to KRS 61.878(1)
(i) and (j)” and “under KRS 61.878(1)(m)[.]” However, she did not
state that any information was redacted from the responsive records.
Ms. Milburn concluded: “[t]his response…constitutes final action of the
[SBE].”
On February 13, 2019, Ms. Milburn replied to Appellant’s request
stating that SBE “is reviewing the files and will comply with your
requests and anticipates all responsive non-exempt records being
made available to you on or before Thursday, February 28, 2019.” Ms.
Milburn also stated that the total number of responsive pages would be
“545 for a total charge of $54.50.” On February 28, 2019, SBE issued a
second response, which delayed Appellant’s access an additional 30
days.
On March 1, 2019, Appellant appealed, stating, “[d]espite these
documents being…collected, reviewed, and appropriately redacted or
withheld, my request for the same documents has now been delayed
twice so that SBE may review the same files and determine which are
subject to release.” Regarding SBE’s statement that it would allow
access to only 545 pages of responsive records, Appellant argued, “[i]t
is unclear why they intend to release only half the records that have
already been released.”
On March 5, 2019, SBE requested additional time to respond to
the appeal, asserting, “this agency has not denied ProPublica’s
request. We are reviewing the appeal and would appreciate a chance
to fully and accurately respond.” On March 6, 2019, this office
extended the appeal pursuant to KRS 61.880(2)(b)1 4 due to “the need
4

KRS 61.880(2)(b)1 states, in relevant part, “In unusual circumstances, the Attorney
General may extend the twenty (20) day time limit by sending written notice to the
complaining party and a copy to the denying agency…[.] As used in this section,
‘unusual circumstances’ means, but only to the extent reasonably necessary to the
proper resolution of an appeal: (1) The need to obtain additional documentation from
the agency or a copy of the records involved[.]”

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Page 4

to obtain additional documentation from the public agency.”
As
grounds for the extension, we requested that SBE provide “a copy of
the responsive records, to serve as documentation and substantiation
of the response provided to the Appellant.” This request was made
pursuant to KRS 61.880(2)(c)5 and 40 KAR 1:030, Section 3.6 We noted
that Appellant, “expected the response to consist of 1,090 pages[.]”
On March 15, 2019, SBE disclosed 607 pages of responsive
records to Appellant and this office. While this office cannot discuss
the contents of records disclosed by a public agency, it can describe
the physical character of the records without disclosing the contents.
SBE stamped the lettered face of all 607 pages four times with the
word “PROPUBLICA.”
Appellant and SBE describe the physical
markings as “watermarks.” SBE also stamped the top of each page
two times with corresponding page numbers and number of pages.
SBE included a formal written appeal response with the
responsive records. SBE argued that the appeal should be dismissed
as premature.
SBE argued that the delay in responding was
reasonable, due to nine additional open records requests submitted by
Appellant. SBE also argued that additional time was necessary due to
strain caused by “the upcoming 2019 Primary Election” and “the
current 2019 General Assembly session.”
Regarding responsive
records it withheld, SBE stated, “agencies are not required to disclose
exempt material, including attorney/client privileged documents.” SBE

5

KRS 61.880(2)(c) states: “On the day that the Attorney General renders his decision,
he shall mail a copy to the agency and a copy to the person who requested the
record in question. The burden of proof in sustaining the action shall rest with the
agency, and the Attorney General may request additional documentation from the
agency for substantiation. The Attorney General may also request a copy of the
records involved but they shall not be disclosed.”
6

40 KAR 1:030 Section 3 states: “Additional Documentation. KRS 61.846(2) and
61.880(2) authorizes the Attorney General to request additional documentation from
the agency against which a complaint is made. If documents thus obtained are copies
of documents claimed by the agency to be exempt from the Open Records Law, the
Attorney General shall not disclose them and shall destroy the copies at the time the
decision is rendered.”

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Page 5

also argued that there was no merit to Appellant’s claim that “she is
entitled to access the exact same records as Secretary Grimes.” SBE
argued, “Secretary Grimes is the duly elected Secretary of State…
[t]herefore, she has the right, under the Kentucky Constitution and
state and federal law to access records of the Agency.” SBE also
asserted the following:
Here, Mr. Wicker is Secretary Grimes’ attorney—not a
member of the public. Because Secretary Grimes has the
right to access any and all records of the Agency— and has
the right to share these with her chosen representatives—
there has been no disclosure to the public and no waiver of
any exemption has occurred. Any finding to the contrary
would violate Secretary Grimes’ constitutional right to due
process and to counsel.
On March 21, 2109, Appellant appealed the SBE response. 7
Appellant argued that “Mr. Wicker should have no more access this
information than any member of the public.” Appellant stated that SBE
had not cited specific authority that gave Secretary Grimes “complete
access to the internal correspondences of SBE employees.” Appellant
argued, “[i]f Ms. Grimes had a right of such access, she would not have
needed to have her attorney submit a public records request to access
that information – she simply could have demanded it herself without
the need for such formality.”
Appellant also argued that SBE afforded Mr. Wicker more
favorable treatment than the general public. In support, Appellant
attached a copy of an email exchange between her and SBE staff
regarding its decision to “watermark” the responsive records and
asking whether records SBE provided to Mr. Wicker were similarly
7

There was no error in Appellant’s appeal of the denial of responsive records in SBE’s
belated response. In 96-ORD-193, this office recognized that there is no limitation on
the number of requests and subsequent appeals that an applicant may submit. In
addition, KRS 61.880(2) requires that this office, “review a public ageny’s denial of a
request to inspect a public record[.]”
Accordingly, we reviewed Appellant’s
subsequent appeal raising issue with SBE’s denials.

 19-ORD-087
Page 6

stamped.
SBE Assistant Executive Director and General Counsel
Jennifer Scutchfield responded by stating, “I have confirmed from
speaking with Ms. Milburn that they were not watermarked and the
response was sent by the Secretary of State’s Office. She was out of
town and did not even see the response before it was sent.” This
response led Appellant to argue that SBE violated the Act because its
custodian of records, Ms. Milburn, did not issue the agency’s response.
Our office assigned the subsequent appeal case number 201900137.
On March 28, 2019, Ms. Scutchfield submitted SBE’s formal
response to appeal 201900137. 8 Ms. Scutchfield stated that SBE had
responded to the contested open records requests at the direction of
the Secretary of State’s office. Ms. Scutchfield stated the following:
Upon the direction of Assistant Secretary of State Erica
Galyon, [SBE] was directed to have all open records
requests approved by the Secretary of State’s office. In the
case of Kent Wicker’s open records request and Jessica
Huseman’s open records requests, the responses were
drafted under the supervision of Erica GaIyon.
Once
drafted, they were presented to Sandy Milburn to sign and
reply with the responsive documents, as assessed by the
Secretary of State’s office.
Of note, not until the response from the [SBE] to the initial
appeal by Jessica Huseman, was it ever acknowledged that
Kent Wicker was private counsel for the Secretary of State.
The determination of the records redacted and released to
Jessica Huseman, and in the same vein, Kent Wicker, was
entirely handled at the direction of the Secretary of State’s
office…Sandy Milburn was instructed by Erica Galyon to
respond in the manner in which she did.

8

SBE’s response to 201900137 was directed to Assistant Attorney General Gordon
Slone. Mr. Slone transferred the entire record for that appeal to the appeal file for
201900084. SBE’s responses to 201900137 were then available for review for this
decision.

 19-ORD-087
Page 7

Ms. Scutchfield argued that any penalty imposed for violations of the
Act should be imposed upon the Secretary of State’s office rather than
SBE.
On March 28, 2019, this office requested unredacted copies of all
responsive records withheld by SBE for the purpose of in camera
review, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to
determine “whether SBE justifiably relied on the [attorney-client
privilege] exemption to withhold records.” Our office also informed the
parties that the appeals were consolidated. On April 12, 2109, SBE
responded to our request by letter, enclosing a Privilege Log of records
it withheld and identifying the exemption to disclosure it asserted
applied to each withheld record. The privilege log listed 84 emails by
title and party, but did not: describe the number of pages, describe
the content of the emails, or identify the parties other than by name.
SBE stated that “[s]uch confidential and privileged records are not
subject to release pursuant to an Open Records Act appeal, especially
in light of the ongoing investigation by the Attorney General against
Secretary Grimes.”
On April 22, 2019, the Attorney General clarified for SBE that the
“Garrard County Attorney…is the appointed Independent Counsel
conducting the investigation.
This office has no role in the
investigation.” On April 25, 2019, Ms. Milburn and Assistant Secretary
of State Erica N. Galyon produced 121 pages of records stating,
“[e]nclosed for your confidential in-camera review are documents
withheld from ProPublica’s February 8, 2019 open records request.”
SBE provided no description of the 121 pages of responsive records or
justification for their withholding, other than the privilege log. SBE did
not address the 362-page discrepancy between the records produced
in the course of this appeal, and those provided to Mr. Wicker. 9

9

SBE produced 607 pages of responsive records for Appellant. SBE produced 121
pages of withheld responsive records for the in camera review of the Attorney
General. Therefore, SBE produced 728 pages of responsive records during the
appeal. The record establishes that SBE disclosed 1090 pages of responsive records
to Mr. Wicker. As of this date, SBE has not accounted for the 362-page discrepancy.

 19-ORD-087
Page 8

Although the office cannot discuss the contents of records SBE
provided for in camera review, it can offer a description of the records
without disclosing the contents. The records submitted for in camera
review contained approximately 136 email messages, at least 52 more
than are listed in the privilege log. SBE stamped the lettered side of
the 121 pages three times with the phrase “OAG CONFIDENTIAL.” SBE
also stamped the top of each page once with a corresponding page
number and number of pages.
The Appeal Is Not Premature. SBE argues that the appeal is
premature because the agency had not yet responded to Appellant’s
request when she appealed. We do not agree. The Act imposes a duty
on the Attorney General in KRS 61.880(2) “to review a public ageny’s
denial of a request to inspect a public record[.]” The record establishes
that SBE’s first response informed Appellant that the agency
anticipated denying access to at least some of the 1090 pages of
responsive records provided to Mr. Wicker. In addition, the claims
Appellant raises regarding her delayed access to records; the fees
imposed after disregarding her request for electronic copies; and SBE’s
disparate treatment of her request and that of Mr. Wicker relate to
subversion of the intent of the Act. This office has decided that an
appeal is not premature if it alleges conditions imposed on a request
for records that subvert the intent of the Act. See 18-ORD-211. KRS
61.880(4) requires that the Attorney General consider an argument
that a public agency subverted the intent of the Act. Accordingly, we
decline to find that the appeal is premature.
SBE Violated the Act by Improperly Delaying Appellant’s
Access to Public Records. SBE violated the Act by failing to properly
delay Appellant’s access to the responsive records. The only provision
that authorizes postponement of access beyond three working days,
KSR 61.872(5), provides that if public records are “in active use, in
storage or not otherwise available,” the official custodian of the public
agency “shall immediately notify the applicant and shall designate a
place, time, and date for inspection of the public records not to exceed
three (3) days from receipt of the application, unless a detailed
explanation of the cause is given for further delay and the place, time,

 19-ORD-087
Page 9

and earliest date on which the public record will be available for
inspection.” (Emphasis added). If a response requires more than the
mandatory three business days set forth in KRS 61.880(1),10 the public
agency is required to specifically invoke KRS 61.872(5). See 01-ORD140, p. 3; 18-ORD-188. Accordingly, SBE violated the Act by failing to
expressly invoke KRS 61.872(5) in its initial response or supplemental
responses.
SBE also improperly delayed Appellant’s access by failing to
provide a detailed explanation of the cause for delay, as required by
the Act as required under KRS 61.872(5). 01-ORD-38, p. 5 (Emphasis
added); 14-ORD-226, p. 4. Only if the parameters of a request are
broad, and the records implicated contain a mixture of exempt and
nonexempt information, and are difficult to locate and retrieve, will a
determination of what is a “reasonable time for inspection turn on the
particular facts presented.” 01-ORD-140 p. 4 (quoting OAG 92-117, p.
4).
SBE argues that the burden of responding to Appellant’s nine
other open records requests caused delay. However, the burden of
addressing Appellant’s other requests is not a “detailed explanation of
the cause” for delay because it “sets forth neither the volume of
records involved nor explains, in detail, the problems associated with
retrieving the records implicated by the request that would support a
[thirty day] delay in providing the requested records.” 02-ORD-217.
SBE does not argue that the nine requests posed an “unreasonable
burden in producing public records” or that the requests “are intended
to disrupt other essential functions of the public agency” within the
meaning of KRS 61.872(6).11 The record lacks clear and convincing
10

KRS 61.880(1) states in pertinent part: “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.”
11

KRS 61.872(6) states: “If the application places an unreasonable burden in
producing public records or if the custodian has reason to believe that repeated
requests are intended to disrupt other essential functions of the public agency, the
official custodian may refuse to permit inspection of the public records or mail copes

 19-ORD-087
Page 10

evidence to support such a claim. See KRS 61.872(6). Nevertheless,
the burden of responding to Appellant’s other requests does not
constitute a “detailed explanation of the cause” for delay, for purposes
of KRS 61.872(5).
Citing a prior decision of this office, SBE argues that persons
making broad requests for large volumes of email or other records
“cannot reasonably expect agencies…to produce all responsive records
within the three day deadline” imposed by KRS 61.880(1), and
“[a]pplicants are therefore urged to frame their requests as narrowly as
possible and, if unable or unwilling to do so, to expect reasonable
delays in records production.” 17-ORD-128, p. 4 (quoting 12-ORD-228
(deciding that the need to review 249,504 e-mails justified six-month
delay in providing access)). However, SBE has not fully divulged the
volume of responsive records at issue. The record also establishes that
Appellant’s request sought a copy of responsive records SBE had
provided to Mr. Wicker in the prior week. The public agency has the
burden of proof in these appeals, pursuant to KRS 61.880(2)(c).
Accordingly, we cannot assume that the number of records at issue is
unreasonably high. SBE fails to associate the volume of records
implicated by Appellant’s requests with any difficulty in retrieving the
records.
SBE also argues that the public agency’s duties during the 2019
primary elections and the 2019 General Assembly caused the delay.
However, explanations related to the ancillary duties of staff also fail to
set forth the volume of records involved or explain, in detail, the
problems associated with retrieving the records. See 02-ORD-217; 09ORD-091 (statutory period for agency response “cannot be extended to
accommodate the schedules of agency staff”). Therefore, we find that
SBE violated KRS 61.872(5) in failing to provide a “detailed explanation
of the cause” for delaying Appellant’s access to public records.
SBE Violated KRS 61.874(2)(a). SBE violated KRS 61.874(2)
(a) by failing to adhere to Appellant’s request for electronic copies of
thereof. However, refusal under this section shall be sustained by clear and
convincing evidence.”

 19-ORD-087
Page 11

responsive records. SBE further violated the Act by requiring Appellant
to pay the cost in advance of receiving hard copies of responsive
records when those records were available in electronic format. KRS
61.874(2)(a) provides:
Nonexempt public records used for noncommercial
purposes shall be available for copying in either standard
electronic or standard hard copy format, as designated by
the party requesting the records, where the agency
currently maintains the records in electronic format.
Nonexempt public records used for noncommercial
purposes shall be copied in standard hard copy format
where agencies currently maintain records in hard copy
format. Agencies are not required to convert hard copy
format records to electronic formats.
(Emphasis added). In construing this provision, the Attorney General
has repeatedly determined that “if nonexempt records exist in both
standard electronic and standard hard copy format, the public agency
must permit inspection of and copying in the format requested by the
requester.” 99-ORD-12, p. 6. Unless the requested records exist only
in hard copy format, discretion rests with the requester, and not the
agency, to determine whether copies are to be provided in electronic
or hard copy format.
Appellant specifically requested copies of the public records in
electronic format and provided an email address for electronic receipt
of the records. SBE presents no evidence that it was unable to honor
Appellant’s request. Further, the record does not contain any evidence
that the requested records exist only in hard copy format. SBE violated
the Act by failing to adhere to Appellant’s request. SBE further
violated the Act when it required Appellant to pay a copying fee for the
paper copies requested in electronic format. See 14-ORD-148 (agency
“cannot impose a ten cents per page copying fee for paper copies of
electronic records requested in electronic format.”)

 19-ORD-087
Page 12

SBE Failed to Meet Its Burden of Proof in Withholding 362
Pages of Responsive Records. SBE denied Appellant access to
responsive records, initially claiming an exemption under the attorneyclient privilege, codified under KRE 503 and operating in tandem with
KRS 61.878(1)(l).12
SBE disclosed withheld responsive records
pursuant to this office’s request. However, SBE failed to disclose –
without any explanation – 362 pages of responsive records from its
disclosure to this office. SBE has offered no evidence to support the
claim of attorney-client privilege, other than asserting the purported
constitutional authority of the Secretary of State to access SBE public
records at will. As such, we find that SBE failed to satisfy its burden of
proof in failing to justify withholding the missing 362 pages of
responsive records.
KRS 61.880(1) provides that a “response denying, in whole or in
part, inspection of any record shall include a statement of the specific
exception authorizing the withholding of the record and a brief
explanation of how the exception applies to the record withheld.” In
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996), the Court of
Appeals found that KRS 61.880(1) requires the agency “to provide
particular and detailed information in response to a request for
documents,” admonishing the public agency for its “limited and
perfunctory response.” The Kentucky Supreme Court has observed
that, “[w]hereas in most disputes both sides have more-or-less equal
access to the relevant facts, so that factual assertions and legal claims
can be adversarially tested, in ORA cases only the agency knows what
is in its records.” City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d
842, 851 (Ky. 2013). The court suggested that a public agency “should
provide the requesting party and the court with sufficient information
about the nature of the withheld record…to permit the requester to
dispute the claim and the court to assess it.” Id. at 852; 14-ORD-108;
17-ORD-177.

12

KRS 61.878(1)(l) excludes: “Public record or information the disclosure of which is
prohibited or restricted or otherwise made confidential by enactment of the General
Assembly.”

 19-ORD-087
Page 13

A public agency has the statutory burden of justifying its denial
of an open records request. See KRS 61.880(2)(c). In addition, SBE
“bears the burden to rebut the strong presumption in favor of
disclosure.” Commonwealth v. Chestnut, 250 S.W.3d 655, 660 (Ky.
2008).
In light of KRS 61.871, declaring that “free and open
examination of public records is in the public interest and the
exceptions provided for by KRS 61.878 or otherwise provided by law
shall be strictly construed,” and KRS 61.880(2)(c), the Attorney General
is “not prepared to accept, without independent confirmation, that all
of the responsive documents are shielded from public inspection by
KRS 61.878(1)(h), (i), (j), or any other exception[.]” 10-ORD-079, p. 6
(citation omitted); 17-ORD-221. This includes records an agency claims
are exempt under the attorney-client privilege. See 16-ORD-133.
The Kentucky Court of Appeals has recognized that “the
protections generally afforded by the attorney-client privilege have
been recognized and incorporated into the [Open Records Act] by the
Kentucky General Assembly.” Hahn v. Univ. of Louisville, 80 S.W.3d
771, 774 (Ky. App. 2001). However, the attorney-client privilege,
codified under KRE 503 and operating in tandem with KRS 61.878(1)(l),
is not absolute.
The privilege only attaches to a confidential
communication “made to facilitate the client in his/her legal dilemma
and made between two of the four parties listed in [KRE 503]; the
client, the client’s representative, the lawyer, or the lawyer’s
representatives.” The St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d
771, 776 (Ky. 2005)(quoting Haney v. Yates, 40 S.W.3d 352, 355
(Ky.2001)).
In the first appeal response, SBE asserted that the 362 pages of
records it withheld from our office are protected by attorney-client
privilege. However, SBE offered no description of the content of the
records, it has not identified the parties to the communications, and
this office has had no opportunity to review the records. Further, the
privilege log shows Secretary Grimes was named in two of the emails,
neither of which name Mr. Wicker. Mr. Wicker’s name does not appear
in the emails in the privilege log, and there is no evidence in the
record of an attorney-client relationship between Mr. Wicker and SBE.

 19-ORD-087
Page 14

As such, there is no evidence to establish all of the necessary elements
for invocation of the attorney-client privilege for the 362 pages of
records withheld.
SBE later provided a privilege log to justify the denial of records,
but there is no evidence any of the exemptions claimed in the
document would apply to the missing 362 pages. The log provides no
description of the content of the emails beyond the title in the subject
line. In addition, our in camera review of the 728 pages of responsive
records SBE produced shows that the privilege log did not account for
as many as 52 email messages. Therefore, there is no evidence that
any of the 362 pages of missing withheld records are identified in the
privilege log. When a public agency declines to produce records that
are purportedly exempt from disclosure for in camera inspection, the
Attorney General’s office has repeatedly found that “the agencies
whose denials were challenged had not met their burden of proof in
sustaining those denials under KRS 61.880(2)(c).” 10-ORD-079. See
05-ORD-169 (Attorney General’s ability to render a decision is
“severely impaired” without exercising his authority under KRS
61.880(2)(c) and 40 KAR 1:030 Section 3); 95-ORD-61; 96-ORD-206;
04-ORD-031; 05-ORD-185; 16-ORD-113; 16-ORD-133; 16-ORD-193; 17ORD-011; 17-ORD-014. Accordingly, we find that SBE failed to justify
withholding 362 pages of responsive records.
SBE Violated the Act by Altering Responsive Records. We
find that SBE violated the Act when it provided Appellant copies of
responsive records altered with page numbering stamps and
“watermarks.” The Act creates a public the right to inspect public
records and the right to receive copies of public records. KRS
61.872(2); KRS 61.874(1).13 KRS 61.874(1) states, “the custodian of
the records shall duplicate the records or permit the applicant to
duplicate the records[.]” Therefore, the Act gives the public the right
13

KRS 61.872(2) states: “Any person shall have the right to inspect public records.
The official custodian may require written application, signed by the applicant and
with his name printed legibly on the application, describing the records to be
inspected. The application shall be hand delivered, mailed, or sent via facsimile to
the public agency.”

 19-ORD-087
Page 15

to obtain duplicate copies of public records in the possession of a
public agency, or to receive duplicate copies by mail.
See KRS
14
61.872(3)(b).
The Act’s only exception to this right is a public agency’s duty to
redact excepted material or information. As KRS 61.878(4) states, “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.” In discharging this
duty to redact, public agencies often create a duplicate of the original
record, make appropriate redactions, and disclose the redacted record.
14-ORD-229, p. 4. The agency satisfies its duty under KRS 61.872(2),
and KRS 61.872(3)(b), as well as KRS 61.878(4), by affording the
requester access to the redacted copy of the original record. Id. The
Act does not otherwise permit a public agency to redact, alter, or mark
copies of responsive public records.
The evidence in the record also demonstrates that individual
requesters suffer disparate treatment under the application of SBE’s
policy of altering or marking copies of responsive records. Under SBE’s
current practice, those inspecting public records have access to
unaltered originals. However, individuals requesting copies of the
same public records receive copies SBE has altered. Therefore, the
policy would operate to discourage those seeking copies due to the
disparate access to unaltered original versions of the responsive
records. In addition, the record shows that SBE arbitrarily determines
how the responsive records are altered or marked among individual
requesters. No evidence in the record exists showing that SBE altered,
marked, or stamped the responsive records that Mr. Wicker received.
However, SBE altered copies received by Appellant and the Attorney
14

KRS 61.872(3)(b) states: “A person may inspect the public records: By receiving
copies of the public records from the public agency through the mail. The public
agency shall mail copies of the public records to a person whose residence or
principal place of business is outside the county in which the public records are
located after he precisely describes the public records which are readily available
within the public agency. If the person requesting the public records requests that
copies of the records be mailed, the official custodian shall mail the copies upon
receipt of all fees and the cost of mailing.”

 19-ORD-087
Page 16

General, and altered Appellant’s copies to a greater degree. SBE
violated Appellant’s right to receive duplicate copies of the agency’s
public records by altering the copies through number stamps and
“watermarks.” Accordingly, we find that SBE violated the Act by
altering the responsive records in a manner beyond the limitations of
KRS 61.878(4).
SBE Violated the Act by Affording Mr. Wicker Greater
Access to Public Records. We also find SBE violated the Act in
affording the Secretary of State’s private attorney greater access to
public records than the general public, without first receiving a
statement of a legitimate governmental purpose for his request. In 96ORD-110, this office was asked to determine whether a local school
board member was required to proceed under the Open Records Act in
order to access board records. We determined that the existence of a
legitimate governmental purpose is instrumental to the degree of
access a public official enjoys to an agency’s public records. We
observed:
The Attorney General has consistently recognized
that under the Open Records Law, all persons have the
same standing to inspect public records and that the
purpose for which an individual requests those records is
irrelevant. 92-ORD-1136; OAG 89-86; OAG 91-129. “If one
person [in the absence of a court order] is allowed to
inspect a record, all should be allowed to inspect.” OAG
89-86, at p. 5.
With reference to a city councilperson, in OAG 91129, this office stated:
Where, however, a public official, [such as a
councilperson], representing a public agency, [such
as a city council], makes a request for public records
in the performance of a legitimate public function,
KRS 61.878(5) [encourages] disclosure regardless of

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Page 17

whether an exemption might be invoked.
statute provides:

That

[The exceptions to the Open Records Law] shall
in no way prohibit or limit the exchange of
public records or the sharing of information
between public agencies when the exchange is
serving a legitimate govern-mental need or is
necessary in the performance of a legitimate
government function.
This provision has been interpreted to mean that
even if records are exempt from the public generally,
they should be made available to public agencies,
and by extension, public officials, for legitimate
governmental purposes. [Citations omitted.]
Note, however, in OAG 92-141, involving a request
by members of the school board to review the
personnel
records,
including
performance
evaluations, of certified and classified employees,
this office stated:
While the Open Records Act [suggests], at KRS
61.878(5), that the exceptions to public
inspection should not prohibit or limit the
exchange of public records or the sharing of
information between public agencies, this
exchange is conditioned upon the agency with
which information is shared serving a
legitimate governmental need or performing a
legitimate government function.
Since the
board of education no longer plays any role in
personnel actions, it does not enjoy any
greater right of access to the files by virtue of
this provision. The board’s right to inspect the
personnel files of certified and classified

 19-ORD-087
Page 18

employees of the school system is therefore
the same as the right of inspection enjoyed by
any citizen under the Open Records Act. A
member of the board must submit a written
request to the custodian of the files in which he
specifically describes the records he wishes to
inspect. The custodian may deny the board
member’s request if the record he asks to
inspect falls within the parameters of one or
more of the exceptions codified at KRS
61.878(1)(a)--(k) [now recodified as KRS
61.878(1)(a) - (p)].
Thus, ...a member of the school board would be entitled to
documents of the school system which relate to a
legitimate governmental purpose and the board member’s
public function. If the request is for records which fall
outside this area, then the board member’s right of
inspection would be the same as that of any other citizen
under the Open Records Act.
96-ORD-110, pp. 4-5.
Following this precedent, Mr. Wicker and the Secretary of State
were required to provide a statement of a legitimate governmental
purpose to receive greater access to public records than the general
public. The record contains no such statement from either individual.
Thus, Mr. Wicker and the Secretary of State enjoy no greater right of
access to public records than any other citizen of the Commonwealth.
SBE argues that the Secretary of State, as a duly elected
constitutional officer, enjoys an independent right of access to SBE’s
records. However, the record establishes that Mr. Wicker accessed
SBE’s public records through the Open Records Act. The record also
shows that SBE reviewed the responsive records for information
exempt under KRS 61.878 and other provisions of law. SBE also stated
that the response was a final agency action, as required by the Act.

 19-ORD-087
Page 19

Further, SBE stated in its response to appeal 201900137 that the
agency was unaware that Mr. Wicker is Secretary Grimes’ personal
attorney before Appellant raised the matter on appeal. Accordingly,
the requirements of the Act apply.
The evidence in the record shows that SBE afforded Mr. Wicker’s
request preferential treatment. Mr. Wicker received more records than
Appellant in response to the same request. He received responsive
records that were free of date stamps and “watermarks.” Nothing in
the record reflects that SBE assessed the copying costs to Mr. Wicker
as it did to Appellant. However, the record reveals that SBE applied a
greater degree of scrutiny for exemptions to Appellant’s request than it
did to Mr. Wicker’s. The Attorney General has long recognized that
persons have the same standing to inspect public records under the
Open Records Act. OAG 79-546; OAG 80-641; OAG 89-86; OAG 91-129;
92-ORD-1136; 96-ORD-110; 01-ORD-8. SBE has provided no basis for
departing from this precedent. Accordingly, SBE violated the Act in
affording the Secretary of State’s private attorney greater access to
public records than the general public, without first receiving a
statement of a legitimate governmental purpose for his request.
SBE’s Claim of Five Exemptions Fail as a Matter of Law.
SBE claims six KRS 61.878(1) exemptions apply to the 121 pages of
responsive records disclosed for in camera review. However, SBE did
not meet its burden of proof regarding five of those claimed
exemptions and those claims fail.
SBE withheld records as “preliminary,” pursuant to KRS
61.878(1)(i) and (j).15 The Attorney General has long recognized that
public records that are preliminary in nature forfeit that preliminary
status upon being adopted by the agency as a basis for its final action.
05-ORD-177; 18-ORD-198. SBE forfeited the preliminary status of
15

KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in 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] “(j) Preliminary recommendations, and preliminary memoranda in
which opinions are expressed or policies formulated or recommended[.]”

 19-ORD-087
Page 20

these responsive records when it released them to Mr. Wicker. The
record shows that SBE released these “preliminary” records in
response to Mr. Wicker’s request, and that SBE’s response states that
its release was a final agency action. There is no evidence in the
record that SBE redacted any of these records, per KRS 61.878(4).
Also, there is no evidence that SBE released any of these records to Mr.
Wicker. As such, the records SBE released to Mr. Wicker were adopted
as part of a final agency action, forfeiting any preliminary status.
SBE argued that some of the withheld records are exempt under
what it describes as, “KRS 61.878 (m) (k).” We presume SBE intended
to invoke KRS 61.878(1)(m), popularly known as the “homeland
security” exception, incorporated into the Act by operation of KRS
61.878(1)(k).16 However, SBE did not meet its burden of proof with
respect to those records.
This office has recognized that
“[s]uccessfully invoking…the ‘homeland security’ exception, requires a
public agency to meet a heavy burden.” See, e.g., 09-ORD-100; 05ORD-175; 09-ORD-124, p. 5. By its own terms, KRS 61.878(1)(m) is
“limited to” the types of records listed in subparagraphs KRS 61.878(1)
(m)(1)(a) through (1)(h). Therefore, this office has found that an
agency does not sustain its burden of proof related to the exception if
it does not specify which subparagraph applies to the records. The
agency must also demonstrate how disclosure would create a
“reasonable likelihood of threatening public safety by exposing a
vulnerability.” 15-ORD-041; 17-ORD-272. SBE did not specify which of
the subparagraphs applies to the withheld records. And nothing in the
privilege log demonstrates a “reasonable likelihood of threatening
public safety.” Therefore, SBE did not sustain its burden.
SBE also asserts the attorney-client privilege as an exception
authorizing its denial of a number of withheld emails. The emails at
issue are communications between SBE General Counsel Scutchfield
and staff of SBE, and were “made to facilitate the client in his/her legal
dilemma.” See Kopowski, 160 S.W.3d at 776; KRE 503(b). However,
16

KRS 61.878(1)(k) excludes: “All public records or information the disclosure of
which is prohibited by federal law or regulation[.]”

 19-ORD-087
Page 21

the record shows that the communications were disclosed to a nonclient third party: Mr. Wicker. Thus, SBE waived the attorney-client
privilege. See 16-ORD-113 (“The attorney-client privilege is generally
waived if communications are made in the presence of a third party”);
KRE 509.17 SBE’s response to appeal 201900137 indicates that, at the
time of the disclosure, SBE was not aware that Mr. Wicker was the
Secretary of State’s personal attorney. Also, there is no evidence in
the record that Mr. Wicker has an attorney-client relationship with SBE.
Therefore, disclosure of the emails to Mr. Wicker was disclosure a nonclient third party, which dissolved the privileged status of the
communications. No evidence in the record preserves the privileged
status of the emails. Accordingly, we find that SBE did not meet its
burden of proof regarding the existence of an attorney-client privilege.
SBE withheld email messages pursuant to “[l]aw enforcement
agencies action/administrative adjudication KRS 61.878 (h).”
We
presume SBE intended to invoke KRS 61.878(1)(h), which states as
follows:
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 ... The exemptions provided by this
subsection shall not be used by the custodian of the
17

KRE 509 states, in relevant part: “A person upon whom these rules confer a
privilege against disclosure waives the privilege if he or she or his predecessor while
holder of the privilege voluntarily discloses or consents to disclosure of any
significant part of the privilege matter.”

 19-ORD-087
Page 22

records to delay or impede the exercise of rights granted
by KRS 61.870 to 61.884[.]
In construing KRS 61.878(1)(h), the Attorney General has
observed that, “[i]n order to successfully raise this exception, a public
agency must satisfy a three-part test.” 95-ORD-95, p. 1. First, the
agency must establish that it is a law enforcement agency or a public
agency involved in administrative adjudication. Id. Next, it must
establish that the requested records were compiled in the process of
detecting and investigating statutory or regulatory violations. Id.
Finally, it must demonstrate that disclosure of the information would
harm it by revealing the identity of informants not otherwise known or
by premature release of information to be used in a prospective law
enforcement action. Id., pp. 1-2.
KRS 61.878(1)(h) specifically
provides that the exception “shall not be used by the custodian of
records to delay or impede the exercise of rights granted by KRS
61.870 to 61.884. The inclusion of this language imports a legislative
resolve that the exception be invoked judiciously, and only when each
of the tests has been met.” 95-ORD-95, pp. 2-3.
In City of Fort Thomas, 406 S.W.3d at 851, the Kentucky Supreme
Court held that the “the law enforcement exemption is appropriately
invoked only when the agency can articulate a factual basis for
applying it, only, that is, when because of the record’s content, its
release poses a concrete risk of harm to the agency in the prospective
action.” A concrete risk of harm, “by definition, must be something
more than a hypothetical or speculative concern.” Id. The court stated
that a public agency should provide the requester and the court
“sufficient information about the nature of the withheld record and the
harm that would result from its release to permit the requester to
dispute the claim and the court to assess it.” Id.; 18-ORD-177.
Here, SBE did not provide any statements or evidence that
premature release of the records would cause harm. No evidence
suggests any potential harm in the contents of or conversations in the
email messages. Also, no statement or evidence of potential harm

 19-ORD-087
Page 23

exists in the privilege log. As such, SBE failed to support denying
Appellant’s request pursuant to KRS 61.878(1)(h).
SBE Violated KRS 61.880(1) and KRS 61.878(4) by Issuing
a Blanket Denial of Records Containing Personal Identifying
Information.
SBE withheld numerous records pursuant to the
“personal privacy” exemption, stated in KRS 61.878(1)(a). 18 The
exception authorizes withholding “information of a personal nature
where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” 18-ORD-099. Our in
camera review shows that some of the responsive records contain
personal identifying information of private citizens. However, SBE
withheld the responsive records in their entirety, rather than redacting
the personally identifying information and releasing the nonexempt
portion, as required by KRS 61.878(4). SBE also failed to provide
Appellant a statement of the exception authorizing withholding those
records, and it failed to state how the exception applied.
KRS 61.880(1) requires that if a public agency denies all or a
portion of a requested record, it must “include a statement of the
specific exception authorizing withholding of the record,” and briefly
explain how the exception applies to the record withheld. 07-ORD-018.
The provision also requires a public agency to describe, at least in
general terms, the nature of information redacted from a responsive
record and state the specific exemption that authorizes the redaction.
Id. The Kentucky Supreme Court allowed redaction of the private
information of citizens, recognizing that “private citizens retain a more
than de minimus interest in the confidentiality of the personally
identifiable information collected from them by the state.” Kentucky
New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 85 (Ky. 2013).
However, the court rejected the practice of “blanket denials of ORA
requests, i.e., the nondisclosure of an entire record or file on the
grounds that some part of the record or file is exempt…” Id., at 88.
(original emphasis).
18

KRS 61.878(1)(a) excludes: “Public records containing information of a personal
nature where the public disclosure thereof would constitute a clearly unwarranted
invasion of personal privacy[.]”

 19-ORD-087
Page 24

This office has affirmed the “categorical redaction” of identifying
information of private individuals pursuant to Kentucky New Era, Inc.
15-ORD-093 (telephone numbers and home addresses of private
individuals “have no manifest bearing on how LMPD performed its
duties, and therefore this information was properly subject to
categorical redaction”); 16-ORD-188 (personal information such as
telephone numbers, birth dates, and home addresses of private
individuals “have no manifest bearing” on how the University of
Louisville performed its public duties). Therefore, a public agency may
properly redact the personally identifying information of private
citizens, if done in a manner consistent with the requirements of KRS
61.880(1) and KRS 61.878(4). However, SBE’s blanket denial of
records containing personal identifying information violated the Act.
SBE Subverted the Intent of the Act. We find that SBE
subverted the intent of the Act within the meaning of KRS 61.880(4).
The record establishes that SBE violated a number of procedural
requirements of the Act. SBE also delayed Appellant’s access to public
records for greater than 30 days, without providing a sufficiently
detailed explanation of the cause for delay. The record also establishes
that SBE committed numerous substantive violations of the Act. In
light of the evidence that the responsive records had already been
gathered, reviewed, and issued the week prior to the request, these
violations support finding that SBE subverted the intent of the Act.
Appellant argued that SBE’s custodian of records did not issue
the responses to her requests, and the responses were in fact issued
by the Secretary of State’s office. In response to 201900137, SBE
argued that it responded as directed by the Secretary of State’s office.
The Act states, “[t]he response shall be issued by the official custodian
or under his [or her] authority[.]” See KRS 61.880(1)(emphasis added).
The record shows that Ms. Milburn reviewed responses prior to their
releases. Therefore, SBE issued responses under the authority of the
custodian of records. However, the evidence also shows that the
Secretary of State’s office directed SBE’s responses to Appellant’s
request for records. The evidence further shows that the Secretary of

 19-ORD-087
Page 25

State’s office directed SBE’s response to this appeal and the Attorney
General’s requests for in camera review. The record shows that orders
and instructions from the Secretary of State caused SBE to take actions
that subverted the Act. We consider this evidence along with the facts
in the record showing that the Secretary of State’s office used its
supervisory position over SBE to gain more favorable access to the
agency’s public records than the public.
As such, we find SBE
subverted the intent of the Act, within the meaning of KRS 61.880(4),
at the direction of the Secretary of State’s office.
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 proceeding.

 19-ORD-087
Page 26

Andy Beshear
Attorney General

J. Marcus Jones
Assistant Attorney General
#84
Distributed to:
Jessica Huseman
Sandy Milburn
Jennifer Scutchfield, Esq.