Request By:
Mr. James Green
Hickman City Manager
City Hall
Hickman, Kentucky 42050
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
John H. Pierson of Hickman, Kentucky has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records. He describes the records as letters relating to him and his property which apparently the city received from an attorney in Paducah.
At some point between December 7, 1984 and December 15, 1984 you advised Mr. Pierson that his request had been denied because, "The records contain confidential communications between attorney and client and are privileged."
In an attempt to learn more about the particular situation involved here, the undersigned Assistant Attorney General talked with you by telephone on December 27, 1984. You stated that the Hickman Harbor is dredged by the Army Corps of Engineers and the material taken from the harbor is to be placed on property which Mr. Pierson claims he owns. The city denies that Mr. Pierson owns the land and to protect its interests the city has hired an attorney from Paducah. The record in question consists of a letter to the city from this particular attorney concerning the matter of the disputed property. This Office has examined the letter in question pursuant to KRS 61.880(2).
OPINION OF THE ATTORNEY GENERAL
Having examined the letter in question, it is our opinion that the letter from the attorney representing the city to his client, the city, is not a public record subject to public inspection under the Open Records Law. The letter concerns, generally, the matter of the ownership of the land in question and constitutes the attorney's analysis of the matter and his advice to his client.
In OAG 82-295, copy enclosed, we said in part that records which are the work product of an attorney in the course of advising a client are not discoverable under the Kentucky Rules of Civil Procedure [CR 26.02(3)] and are therefore exempt from public disclosure under KRS 447.154 and KRS 61.878(1)(j). The latter statute states that among the public records excluded from the application of the Open Records Law and subject to inspection only upon the order of a court of competent jurisdiction are public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. KRS 447.154 provides in part that no Act of the General Assembly shall be construed to limit the right of the Court of Justice to promulgate rules.
We are also enclosing a copy OAG 81-291 dealing in part with the concept of the attorney's work product and the exclusion of such work from public inspection under the Open Records Law. Finally, in OAG 81-246, copy enclosed, we said in part that documents which constitute the attorney's work product may be properly withheld from public inspection under the Court's rules pertaining to discovery.
It is, therefore, the opinion of the Attorney General that you acted properly in denying the request to inspect the letter received by the city from its legal counsel which constitutes the work product of the attorney in the course of advising the city.
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in court pursuant to KRS 61.880(5).