Request By:
Mr. Rick Stinchfield
Official Custodian
Murray State University
Murray, Kentucky 42071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
Mr. Bill Bartleman, reporter for The Paducah Sun, has appealed to the Attorney General under KRS 61.880 your failure to provide him access to inspect certain public records allegedly in your custody which are described as follows:
"(1) Those used by MSU Attorney James R. Overby in preparing the eight charges which were dropped by the unanimous decision of the 10-member board.
"(2) The letter of transmittal which was presented to Board Chairman Ron Christopher prior to the charges being preferred. I believe the letter was signed by Bill Morgan of Benton, but I am not sure.
"(3) Those prepared by officials of the law firm of Hurt, Haverstock and Jones which was hired to investigate the charges to determine if they were valid.
"(4) Those prepared by officials of the accounting firm of James R. Meany and Associates which was hired to investigate the charges to determine if they were valid.
"(5) Those prepared by James Overby in connection with his investigation of the charges."
You responded to Mr. Bartleman's request by stating that the requested records were exempt from public inspection under KRS 61.878(1)(g) and (h) because the records were preliminary drafts, notes, correspondence with private individuals, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Upon Mr. Bartleman's appeal to the Attorney General we wrote to MSU Attorney James R. Overby on June 15, 1981 requesting that the described records be sent to this office to be reviewed by us before ruling on the appeal. Under cover letter dated August 14, 1981, Mr. Overby sent us available documents complying with our request. We have reviewed these documents and have arrived at various conclusions as to the requirement of mandatory disclosure under the Kentucky Open Records Law, KRS 61.870-61.884, which we are stating in the following opinion.
OPINION OF THE ATTORNEY GENERAL
This opinion deals with the five categories of documents as listed in Mr. Bartleman's request and will be referred to by number as stated above.
(1) It is our opinion that the documents used by MSU Attorney James R. Overby in preparing the eight charges are public records and should be made available for public inspection. The documents sent to us consist of purchase requisitions, bills, purchase orders and a purchase contract, sixteen items in all. These documents are business records of Murray State University and are not covered by any of the exceptions from mandatory public disclosure under KRS 61.878. We, therefore, conclude that they should be made available for public inspection.
(2) The letter of transmittal which was presented to Board Chairman Ron Christopher prior to charges being preferred is an official document which is required by KRS 164.360(3) and, therefore, we conclude that it is a public record which should be made available for public inspection.
(3) The records prepared by the law firm of Hurt, Haverstock and Jones have not been sent to us, but we conclude that such papers are not public records but are papers which were generated as the work product of attorneys and are therefore exempt from public inspection under CR 26.02(3); KRS 447.154; KRS 61.878(1)(j). The last cited statute exempts "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
The "work product" of attorneys is not discoverable under the court rules except in unusual cases which depend upon the nature of the document, the extent to which it may directly or indirectly reveal the attorney's mental processes, the likely reliability of its reflection on witness' statements, the degree of danger that it will convert the attorney from advocate to witness, and the degree of availability of the information from other sources.
United States v. Amerada Hess Corp., 619 F.2d 980, 987 (1980). In re. Grand Jury Investigation, 599 F.2d 1224, 1228 (1979) the Court said:
"The work product doctrine recognized in
Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), protects from discovery materials prepared or collected by an attorney 'in the course of preparation for possible litigation.'"
Court rules have the force of state law and we therefore conclude that the attorney's work product rule makes the papers of the law firm in question exempt from public disclosure under the Open Records Law.
(4) We conclude that the report made to Murray State University dated March 11, 1981 by the accounting firm of James R. Meany and Associates is a public record, not exempt by KRS 61.878 and should, therefore, be made available for public inspection.
(5) We conclude that the papers prepared by Attorney James Overby in connection with his investigation of the charges are exempt from mandatory public disclosure by the attorney work product rule as stated in our ruling on No. (3) above.
A copy of this opinion is being sent to the requester, Mr. Bartleman. Under KRS 61.880(5), both the requester and the agency have the right to challenge this opinion in court and it is provided in that statute that if the agency decides not to comply with the Attorney General's opinion, it may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court of the district where the public record is maintained.