Request By:
Christopher W. Johnson, Esq.
Legal Counsel
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Jim Malone has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the custody of the Kentucky State Police.
In his letter to the State Police, a copy of which this office does not have, Mr. Malone apparently requested that he be permitted to inspect copies of correspondence between the Kentucky State Police and the U.S. Department of Labor.
Your letter to Mr. Malone, dated April 20, 1987, advised him in part as follows:
"This letter is in response to your request for copies of certain correspondence of this agency. Please be advised that such correspondence is exempt from public inspection at this time pursuant to KRS 61.878(1)(g) and KRS 61.878(1)(h). May we suggest you contact the Department of Labor."
In a letter to this office, dated April 23, 1987, Mr. Malone referred to a "survey" being conducted by the U.S. Department of Labor relative to certain practices at all of the Kentucky State Police Posts. He said he had requested copies of correspondence received by the State Police from the Department of Labor concerning the investigation. The Kentucky Labor Cabinet is not part of this investigation. Mr. Malone asks whether correspondence between a state and federal agency is exempt from public inspection under KRS 61.878(1)(g) and (h).
The undersigned Assistant Attorney General talked with you by telephone on April 27, 1987, and you said that the U.S. Department of Labor was investigating matters pertaining to wages of Kentucky State Police personnel. While some of the correspondence between the State Police and the U.S. Department of Labor involved various memoranda and other preliminary documents between personnel of the two agencies, much of it involved exchanges of correspondence between the legal staffs of the two agencies. You cited the attorney-client relationship and the work product of the attorney concept as exceptions to the public inspection of the correspondence involved.
OPINION OF THE ATTORNEY GENERAL
In regard to the concepts of attorney-client relationship and work product of the attorney your attention is initially directed to OAG 82-295, copy enclosed. This office 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 provides that among the public records excluded from the application of the Open Records Act 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 states in part that no Act of the General Assembly shall be construed to limit the right of the Court of Justice to promulgate rules.
Next your attention is directed to OAG 81-291, copy enclosed, from which the following is extracted:
"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 discover materials prepared or collected by an attorney in the course of preparation for possible litigation . . .'"
See also OAG 81-246, copy enclosed, at page three, concerning the lawyer-client privilege.
In connection with the correspondence between various persons employed by the Kentucky State Police and officials and employees of the U.S. Department of Labor relative to the Labor Department's as yet uncompleted investigation, other than that correspondence involving the legal departments of those agencies, another exception to public inspection must be considered.
KRS 61.878(1)(h) provides that among those public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described as:
"Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In OAG 87-24, copy enclosed, this office concluded that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether the Board should or should not grant a parole is a preliminary document expressing personal opinions and recommendations and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. A document prepared by a public official not associated with the agency which has possession of that document can still be a preliminary document.
Thus correspondence from the Kentucky State Police to the U.S. Labor Department concerning the matters under investigation as well as correspondence from the U.S. Labor Department to the Kentucky State Police can, under the appropriate circumstances, be considered preliminary documents. In this situation there has been an exchange of correspondence between two agencies pertaining to an investigation whereby the agencies are setting forth their observations, opinions and comments relative to that investigation. The investigation has not been concluded and no final report has been issued. See also OAG 84-118 and OAG 86-58, copies of which are enclosed, relative to preliminary documents and the authority to exclude such items from public inspection.
It is, therefore, the opinion of the Attorney General that documents which constitute the work product of an attorney and come within the attorney-client relationship may be excluded from public inspection. Thus correspondence between the legal divisions of a state and federal agency pertaining to an ongoing investigation of the state agency need not be made available for public inspection by the state agency. Furthermore, correspondence between two agencies pertaining to an investigation of a state agency need not be released by the state agency when it consists of preliminary documents containing the observations, opinions and comments of various personnel of the two agencies.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Jim Malone, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).