Request By:
Mr. Robert W. Keats
Legal Counsel
Metropolitan Sewer District
400 South Sixth Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested that we reconsider OAG 81-208, an opinion given on an open records appeal. You state that you believe that all the facts relevant to the matter were not available to us at the time the opinion was rendered and that had you known that WHAS had appealed the denial of their open records request you could have forwarded to us examples of the documents they sought to obtain.
You have sent us two form sheets, L-241A which is untitled and L-212 which is titled Industrial Waste Work Sheet. The data which is filled in on these sheets is in the form of numbers which we assume represent the results of tests made by employees of the Metropolitan Sewer District and, in the case of form L-241A, reviewed and approved by the Chief Chemist and the Industrial Waste Engineer. You state that the laboratory work sheets are "literally notes in pencil of the analysis performed in the MSD laboratory. " You indicate that form L-241A is a laboratory summary sheet which may be either in ink or pencil. You state as follows:
"MSD has considered these documents as preliminary notes and drafts and preliminary memorandums which may be used by MSD for the following purposes:
1. For the development of the industrial permit program;
2. For billing back-up data;
3. For an overview of industrial discharges in order to protect workers in other portions of the public sewer;
4. For enforcement of its wastewater discharge regulations; and
5. For background information to develop programs."
OPINION OF THE ATTORNEY GENERAL
The practical effect of reconsidering an opinion on an Open Records appeal and reversing our conclusion that public records have been improperly withheld from public inspection would be to relieve the public agency from the obligation of making the records available for inspection or filing suit within 30 days in the circuit court challenging the opinion of the Attorney General. The burden would then shift to the requester to file a law suit if he desires to persist in his efforts to inspect the records in question. In this particular case we decline to reverse OAG 81-208 for reasons we will state below.
Having now seen forms L-241A and L-212, we are confirmed in our opinion that the forms do not contain the type of intra-office memoranda where opinions are expressed, recommendations are made and policies formulated as exempted by KRS 61.878(1)(g)(h). The information on the forms appears to us to be statistical, the results of scientific measurements and tests and not preliminary in the statutory sense.
You contend that the waste water constituents of a particular private industry is such information as should not be generally made available to the public since the public as a class contains members of competing industries which might have a keen interest in knowing the volume, constituents and chemical makeup of a competitor's waste waters. While this may be true, we fail to see any interest which MSD has in protecting such secrets, especially since the information is not voluntarily supplied by the private companies but is gathered by MSD employees. Cf. OAG 79-69, where we said that industrial waste survey forms returned by a particular industry voluntarily with the request that its response be held confidential was exempt as private correspondence under KRS 61.878(1)(g). (Copy enclosed).
You also insist that some of the documents requested contain information compiled in connection with the February 13, 1981 sewer explosion in Louisville and is privileged by the lawyer-client work product privilege, citing Upjohn Company v. United States, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). We note that in that case there is quoted with approval the following:
"The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant facts within his knowledge merely because he incorporated a statement of such facts into his communication to his attorney.' City of Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (EDCA Pa. 1962), 66 L. Ed. 2d 595."
Only you, as counsel for MSD, can make a ready determination of what papers come under the attorney-client privilege. We will not question your conclusion in the matter but will only observe that the sample forms you sent to us appear to be such as are used in the routine operation of MSD. If any documents which are requested are in fact the attorney's work product in connection with a law suit, we believe that they may be properly withheld from public inspection under the court rules pertaining to discovery. Kentucky Constitution § 116 authorizes the Court of Justice to make rules, and KRS 447.154 gives statutory authority to the rules the Court has made. Any records which are privileged under the rules of discovery are, therefore, exempt from mandatory public disclosure by KRS 61.878(1)(j), "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
In summary, it is our opinion that OAG 81-208 is correct.