26-ORD-036 – Kurt Alan/Louisville Metro Council

Opinion Content:

February 2, 2026

In re: Kurt Alan/Louisville Metro Council

Summary: The Louisville Metro Council (“the Council”) did not violate
the Open Records Act (“the Act”) when it denied a request for an
attorney-client privileged communication under KRE 503.

Open Records Decision

On November 10, 2025, Kurt Alan (“the Appellant”) submitted a request to the
Council for all emails related to the settlement of a certain lawsuit, which were sent
or received by any Council member from “September 22, 2025 [through] November
10, 2025 or until the records are provided.” On November 18, 2025, the Council issued
a response stating there was one email responsive to the Appellant’s request, which
was “sent from the Jefferson County Attorney’s Office to [the] Council President . . .
regarding a separate civil lawsuit that referenced [the] settlement” in question. The
Council asserted that the “email and its attachments are confidential attorney-client
privileged communications made to render legal advice in that separate case and are
attorney work product on that litigation,” and thus “exempt from disclosure pursuant
to Kentucky Rule of Evidence 503, as well as Civil Rule of Procedure 26.02,
incorporated into the [Act] via KRS 61.878(1)(l).” This appeal followed.

Under the Act, a public agency must respond to a request for records “within
five (5) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of
any such request.” Here, the Appellant claims the Council violated the Act “when it
failed to provide the records within 5 days.” However, the first day after the Council
received the request was November 11, 2025, Veterans Day, which is a legal holiday
under KRS 2.110(1). The fifth business day after receipt of the request was therefore
November 18, 2025. Thus, the Council’s response on that date was timely.

The Appellant further claims the Council improperly asserted privilege as to
the responsive email. 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 v. Cincinnati Enquirer, 406 S.W.3d 842,
848–49 (Ky. 2013) (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 Council described the email as a confidential attorney-client
communication “made to render legal advice.” This description suffices to establish
that the withheld communication is protected by the attorney-client privilege.

The Appellant, however, claims the Council should have provided a redacted
version of the email because communications relating to a lawsuit are “not subject to
attorney-client privilege once the action is complete.” But he provides no authority
for that claim. “The attorney-client privilege is not contingent on actual or threatened
litigation.” Collins v. Braden, 384 S.W.3d 154, 160 (Ky. 2010). Therefore, the Council
did not violate the Act.1

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].

1 Because the attorney-client privilege is dispositive of the issues on appeal, it is unnecessary to
address the alternative basis for denial under the work product doctrine.

Russell Coleman
Attorney General

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

Kurt Alan
Nicole H. Pang, Esq.
Alice Lyon, Esq.
Natalie S. Johnson, Esq.
Annale R. Taylor, Esq.
Donald Haas, Esq.
Michael Spenlau, Esq.
Anne Courtney Coorssen, Esq.