Request By:
Barbara W. Jones, Esq.
General Counsel
Corrections Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Raymond O. Baker has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various documents in the custody of the Corrections Cabinet.
In his letter to the Chairman of the Parole Board, a copy of which this office does not have, Mr. Baker apparently requested that he be furnished with copies of certain documents he thought were in the possession of the Parole Board.
You replied to Mr. Baker on behalf of the Parole Board and advised him as follows, in a letter dated June 1, 1988.
"Dr. Runda, Chairman of the Parole Board, provided me with a copy of your request for public records. You have requested a copy of the Scroggy v. Summers decision, a copy of the opinion of the General Counsel which advised the Parole Board not to hold parole revocation hearings for specific individuals and a copy of the U.S. Supreme Court decision in Scroggy v. Summers.
"As a courtesy, this office will provide you a copy of the decision in Scroggy v. Summers and the Supreme Court's denial of certiorari. The written opinion of the General Counsel to the Parole Board is privileged and is not subject to review under the Open Records Act and therefore, will be denied."
Mr. Baker sent you a document, dated June 2, 1988, which he said in part was an appeal of your denial of his request to furnish him with a copy of your written opinion to the Parole Board concerning parole revocation hearings. He also requested information relative to the appeal procedure.
You responded to Mr. Baker in a letter dated June 17, 1988, and advised him as follows:
"In response to your request to the proper appeals procedures, please see Kentucky Revised Statutes, Chapter 61, the Law Library, to determine what procedures you must follow to file an appeal of my denial of giving you my legal opinion.
"I have no further comment on your other statements in your letter."
In a letter to this office designated "Letter-Appeal, Denial of Records under Open Records Law," Mr. Baker has appealed your denial of his request that he be furnished with a copy of your written opinion to the Parole Board relative to parole revocation hearings.
He maintains in part that your response of June 1, 1988, was deficient in that it did not set forth a statement of the specific exception relied upon which authorizes withholding of the documents and there was no brief statement of how the exception relied upon applies to the document actually withheld. He further alleges that he is entitled to inspect the document in question because it involves him and he needs it in connection with litigation in which he is involved.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides in part as follows:
". . . An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."
Your letter of June 1, 1988, to Raymond O. Baker was deficient to the extent that it did not include a statement citing the specific statutory exception relied upon in denying the request to inspect. Furthermore, your letter should have included a brief explanation of how the exception to inspection relied upon applies to the particular document withheld. See OAG 84-376, copy enclosed, at page five. Hopefully, the Corrections Cabinet will fully comply with the provisions of KRS 61.880(1) in its future letters of denial in response to requests to inspect records.
In regard to the concepts of the attorney-client relationship and the work product of the attorney, this office has previously concluded that documents which are the work product of the attorney in the course of advising a client are not discoverable under the Kentucky Rules of Civil Procedure [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 an 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.
In OAG 81-291, copy enclosed, this office said:
"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.'"
See also OAG 87-28, copy enclosed, at pages two and three.
As to the attorney-client privilege, your attention is directed to Upjohn Co. v. United States, 449 U.S. 383, 395-396, 66 L. Ed. 2d 584, 595, 101 S. Ct. 677 (1981), where the Court quoted with approval the following:
"'[T]he 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 fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.' Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (ED Pa. 1962)."
A copy of OAG 81-246 is enclosed relative to the attorney-client privilege.
In conclusion, it is the opinion of the Attorney General that although the public agency's denial of the request to inspect a document consisting of an opinion of the General Counsel to the Parole Board should have conformed to the requirements of KRS 61.880(1), the denial of the request can be justified under the concepts of the attorney-client privilege.
As required by statute a copy of this opinion is being sent to the requesting party, Raymond O. Baker, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.