26-ORD-024 – Michael McDaniel/University of Kentucky

Opinion Content:

January 21, 2026

In re: Michael McDaniel/University of Kentucky

Summary: The University of Kentucky (“the University”) violated the
Open Records Act (“the Act”) when it partially denied a request for
records without explaining how the cited exemptions applied to the
records it withheld. On appeal, the University carried its burden of
showing that KRS 61.878(1)(i) and KRE 503 applied to the withheld
preliminary drafts and attorney-client privileged communications.

Open Records Decision

Michael McDaniel (“the Appellant”) submitted a request to the University for
“[a]ny documents discussing, explaining, or justifying the reason for removing or
amending [Administrative Regulations] section ‘B.1.f.(3) Suspension,’ including
internal communications, memos, rationale statements, recommendation letters, or
summaries of procedural or legal considerations.”1 In a timely denial, the University
stated, “to the extent that records may exist which are responsive[,] those records are
preliminary . . . pursuant to KRS 61.878(1)(i) and (j) and/or attorney-client
privileged.” The University provided no further explanation. This appeal followed.

The Appellant argues the University’s response did not sufficiently explain the
exceptions to the Act on which it relied. When a public agency denies a request under
the Act, it must give “a brief explanation of how the exception applies to the record
withheld.” KRS 61.880(1). The agency’s explanation must “provide particular and
detailed information,” not merely a “limited and perfunctory response.” Edmondson
v. Alig, 926 S.W.2d 856, 858 (Ky. 1996). “The agency’s explanation must be detailed
enough to permit [a reviewing] court to assess its claim and the opposing party to
challenge it.” Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013).
An agency is not “obliged in all cases to justify non-disclosure on a line-by-line or
document-by-document basis.” City of Fort Thomas v. Cincinnati Enquirer, 406
S.W.3d 842, 851 (Ky. 2013). Rather, “with respect to voluminous [open records]

1 The other portions of the Appellant’s multi-part request are not at issue in this appeal.

requests . . . it is enough if the agency identifies the particular kinds of records it
holds and explains how [an exemption applies to] the release of each assertedly
exempt category.” Id. (discussing the “law enforcement exception” under KRS
61.878(1)(h)). Of course, “if the agency adopts this generic approach it must itself
identify and review its responsive records, release any that are not exempt, and
assign the remainder to meaningful categories. A category is meaningful if it allows
the court to trace a rational link between the nature of the document and the alleged”
exemption. Id. (quotation omitted). Here, the University merely cited KRS
61.878(1)(i) and (j) without explaining the types of records to which they applied or
how each exception applied to the particular records withheld. Thus, the University
violated the Act.

The University’s initial response likewise failed to explain how the attorney-
client privilege applied to the particular records it withheld. The attorney-client
privilege protects from disclosure “confidential communication[s] made for the
purpose of facilitating the rendition of professional legal services to [a] client.” KRE
503(b). “A communication is ‘confidential’ if not intended to be disclosed to third
persons other than those to whom disclosure is made in furtherance of the rendition
of professional legal services to the client or those reasonably necessary for the
transmission of the communication.” KRE 503(a)(5). The privilege applies to
communications between a client or representative of a client and the lawyer, KRE
503(b)(1), as well as between representatives of the client, KRE 503(b)(4).
“Representative of the client” is defined broadly to include a “person having authority
to obtain professional legal services, or to act on advice thereby rendered on behalf of
the client.” KRE 503(a)(2)(A).

KRS 61.878(1)(l) operates in tandem with KRE 503 to exclude from inspection
public records protected by the attorney-client privilege. Hahn v. Univ. of Louisville,
80 S.W.3d 771 (Ky. App. 2001). However, when a party invokes the attorney-client
privilege to shield documents in litigation, that party carries the burden of proof. That
is because “broad claims of ‘privilege’ are disfavored when balanced against the need
for litigants to have access to relevant or material evidence.” Haney v. Yates, 40
S.W.3d 352, 355 (Ky. 2000) (quoting Meenach v. Gen. Motors Corp., 891 S.W.2d 398,
402 (Ky. 1995)). So long as the public agency provides a sufficient description of the
records it has withheld under the privilege in a manner that allows the requester to
assess the propriety of the agency’s claims, then the public agency will have
discharged its duty. See City of Fort Thomas, 406 S.W.3d at 848–49 (providing that
the agency’s “proof may and often will include an outline, catalogue, or index of
responsive records and an affidavit by a qualified person describing the contents of
withheld records and explaining why they were withheld”). Here, the University
violated the Act when its initial written response failed to provide a description of the
records with enough specificity to permit the Appellant to assess the propriety of the
University’s invocation of the attorney-client privilege.

On appeal, the University claims the records withheld under KRS 61.878(1)(i)
and (j) fall into two categories: “early drafts of documents” and “communications
between various university officials.” KRS 61.878(1)(i) exempts from public disclosure
“[p]reliminary drafts, notes [and] correspondence with private individuals, other than
correspondence which is intended to give notice of final action of a public agency.” A
preliminary draft is “a tentative version, sketch, or outline” of a final document. 05-
ORD-179. Preliminary drafts “by their very nature are rejected when a final [version]
is approved.” 24-ORD-193. Thus, a preliminary draft does not lose its preliminary
status when the agency takes final action. See, e.g., 21-ORD-089. Therefore, the
University did not violate the Act when it withheld “early drafts of documents” under
KRS 61.878(1)(i).

As for the “communications between various university officials,” the
University claims these are exempt under KRS 61.878(1)(j). That provision exempts
from public disclosure “[p]reliminary recommendations, and preliminary memoranda
in which opinions are expressed or policies formulated or recommended.” Here, the
University describes the internal communications as “recommendations or proposed
policies” that resulted in a new set of administrative regulations superseding, among
many others, the former regulation known as “B.1.f.(3) Suspension.” As the Office has
recognized, “communications containing edits or suggested changes to a preliminary
draft” are tantamount to preliminary drafts themselves. 24-ORD-157; see also 24-
ORD-035; 22-ORD-204; 21-ORD-089; 16-ORD-180. Here, because the internal
communications at issue represent the internal process of drafting an administrative
regulation, they are exempt under KRS 61.878(1)(i), and it is “the final document
[that] becomes available to the public.” 26-ORD-014. Accordingly, the University did
not violate the Act when it withheld those communications, and it is unnecessary to
consider the application of KRS 61.878(1)(j).

Turning to the records withheld under the attorney-client privilege, the
University, on appeal, describes these as confidential “communications between the
University’s attorneys and other university officials, seeking professional legal
services from the University’s attorneys, including requests for advice, and providing
information necessary for the University’s attorneys to formulate legal advice.” While
minimal, this description suffices to establish that the withheld communications are
protected by the attorney-client privilege. Thus, the University did not violate the Act
when it withheld these communications.

In sum, the University violated the Act when it failed to explain, in its initial
response, how the asserted exceptions to the Act applied to the records withheld. But
the University did not violate the Act when it withheld records that constituted
“preliminary drafts” under KRS 61.878(1)(i) or attorney-client privileged
communications under KRE 503.

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to [email protected].

Russell Coleman
Attorney General

/s/ James M. Herrick
James M. Herrick
Assistant Attorney General

Mr. Michael McDaniel
Shannan Stamper, Esq.
William E. Thro, Esq.
Ms. Amy R. Spagnuolo