26-ORD-095 – Harold Bardin/Kentucky Department of Veterans’ Affairs

Opinion Content:

March 13, 2026

In re: Harold Bardin/Kentucky Department of Veterans’ Affairs

Summary: The Kentucky Department of Veterans’ Affairs (“the
Department”) did not violate the Open Records Act (“the Act”) when it
withheld email exempt under the attorney-client privilege or when it did
not provide records it does not possess.

Open Records Decision

Harold Bardin (“the Appellant”) submitted a five-part request to the
Department for records related to him or to his activities on social media. 1 In
response, the Department responded to each subpart of the request stating whether
responsive records did or did not exist and provided nonexempt responsive records.
The Department noted that the Appellant’s description of topics was not precise and
did not adhere to KRS 61.872(3)(b)’s requirements that a request “precisely describe”
the records sought and that all its social media posts were publicly available, but
stated that it had opted to conduct a search for responsive records. The Department
denied the Appellant’s request as to 25 internal emails between its staff and legal
counsel under the attorney-client privilege and KRE 503. The Department explained
that the emails contained legal advice given to the Department by its legal counsel
and communications “made in confidence between legal counsel and agency staff.”
This appeal followed.

1 Specifically, the Appellant sought: (1) any records that referenced him, his social media accounts,
a social media page belonging to the Department, LinkedIn accounts that reference him, his actions
as a veterans’ advocate, discussions of his advocacy for veterans, and legal communications regarding
his advocacy activities; (2) communications between the Department and the Office of the Governor
regarding the same topics; (3) internal Department communications regarding the same topics; (4)
communications between the Department and Disabled American Veterans International regarding
the same topics; and (5) communications between the Department and the U.S. Department of
Veterans Affairs.

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).

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)

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).

Here, the Council’s initial invocation of KRE 503 explained that the withheld
emails contained communications between Department staff and its legal counsel
and contained the counsel’s legal advice. Although minimal, this description is
sufficient to determine that the withheld emails are protected by the attorney-client
privilege under KRE 503 and KRS 61.878(1)(l). See, e.g., 25-ORD-038. Accordingly,
the Department did not violate the Act when it withheld emails exempt under the
attorney-client privilege. 2

2 The Appellant also claims a “privilege log” must be produced for any material withheld under the
attorney-client privilege. However, the Office’s decisions have not required a formal privilege log when
the agency’s description of the records is sufficient to determine whether the privilege applies. See,
e.g., 21-ORD-140; 21-ORD-087.

The Appellant further complains that he has not received all records
responsive to his request. The Department maintains it has provided the Appellant
with all responsive records. Once a public agency states affirmatively that no
additional records exist, the burden shifts to the requester to make a prima facie case
that additional records do exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t,
172 S.W.3d 333, 341 (Ky. 2005). If the requester makes a prima facie case that the
records do or should exist, “then the agency may also be called upon to prove that its
search was adequate.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842,
848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341). A requester must provide
some evidence to make a prima facie case that additional records exist, such as the
existence of a statute or regulation requiring the creation of the records or other
factual support for the existence of the records. See, e.g., 21-ORD-177; 11-ORD-074.
A requester’s bare assertion that certain records exist or should exist is insufficient
to make a prima facie case that the records actually do exist. See, e.g., 22-ORD-040.

The Appellant asserts that an email produced by the Department, which refers
to a specific Department Facebook post, is prima facie evidence that similar
communications exist. However, the Appellant has not provided this email to the
Office. Moreover, based on the Appellant’s description of the email, it does not appear
to reference any other Department communications and, therefore, would not support
a prima facie case that similar emails exist. Thus, the Office cannot find that the
Department violated the Act by not providing records it does not possess.

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General

Harold Ray Bardin
Lily Chan Patteson