Request By:
Mr. Dale Wilson
Rouse, Skees, Wilson & Dillon
7699 Tanners Lane
P.O. Box 756
Florence, Kentucky 41042-0756
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Paul Vesper has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect a number of documents in the possession of your client, the Boone County Planning Commission, as well as the Boone County Fiscal Court, the Boone County Board of Adjustment, the Florence Board of Adjustment, the Walton Board of Adjustment, and the City of Florence. In a letter dated April 24, 1991, Mr. Vesper requested access to:
[A]ny document, letter, memorandum, report, book, note, notebook or manual which serves to explain, interpret or give an opinion on, either prior to or after passage of, the Boone County Comprehensive Plan dated August, 1986 and/or the Boone County Zoning Regulation dated August, 1987, as amended from time to time. This application includes explanations, interpretations, or opinions of a general nature or those relative to a specific application, request or otherwise. the interpretation, explanation, or opinion can be from anyone, but should specifically include explanations, opinions or interpretations from city or county officials, members of the Boone County Planning Commission, any Zoning Administrator or attorney representing any of the above.
Mr. Vesper specifically requested that he be permitted to inspect a memorandum which you prepared for the Florence Board of Adjustment on or about October, 1988, and a memorandum which you prepared relating to concept development plans and conditions of zone change.
You responded to Mr. Vesper's request in a letter dated April 30, 1991, indicating that although the nonexempt records of these agencies would be gathered for his inspection, the materials which fell within the parameters of the attorney client privilege would be withheld pursuant to KRS 61.878(1)(j). You identified the exempt materials as "explanations, interpretations or opinions from legal counsel" for the agencies. Mr. Vesper received similar responses from Betsey R. Conrad, Florence City Clerk, on April 30, 1991, and Larry J. Crigler, Boone County Attorney, on May 2, 1991.
In his letter of appeal to this Office, Mr. Vesper asserts that you improperly invoked KRS 61.878(1)(j), and the attorney client privilege, codified at KRS 421.210(4). It is his position that the privilege places limitations on an attorney "as to his obligation to testify or otherwise make disclosure of communications to him in confidence. " Continuing, he observes:
As long as the Requested Documents do not contain information communicated by the client to the attorney (for which privilege is sought), no policy exists in the Open Records Act to deny the information contained in the Requested Documents to the general public when the information is the basis for reliance by public officials and may affect the rights of the public.
In addition, Mr. Vesper argues that only confidential communications are protected from disclosure, and that your client waived the privilege by transmitting the memoranda to other public agencies. He concludes, "Once the 'client' agency chose to share the Requested Document [sic] with others for their use, the documents were open to all for view. (See OAG 89-23)."
By letter dated May 15, 1991, you responded to Mr. Vesper's arguments, explaining that the exempt materials consist of various memoranda which you submitted to your client, the Boone County Planning Commission, and which pertain to a pending lawsuit against the Commission and the Boone County Fiscal Court. You maintain that Kentucky law does not limit the attorney client privilege to only a client's communications to his or her attorney. In support of your position, you cite Section 5.00 of Lawson's Kentucky Evidence Law Handbook (2nd Ed., 1989 supp.), OAG 88-32 and OAG 91-53. Responding to Mr. Vesper's second argument, you state that the circulation of the memoranda to other regulatory agencies did not constitute general distribution to the public. Instead, you argue:
The exchange or circulation of this material was to communicate legal matters to and among clients established for purposes of county-wide land use regulation within Boone County, Kentucky.
You note that in OAG 87-28 we upheld nondisclosure of information exchanged by legal divisions of state and federal agencies under the attorney client privilege.
In his final letter to this Office, dated may 17, 1991, Mr. Vesper reiterates his belief that the transmittal of the materials by the Boone County Planning Commission to other agencies evidenced an intent to waive the privilege and make the materials available to the general public. He asks that we review the partial denial of his request to determine if your actions were consistent with the Open Records Act. for the reasons outlined below, we conclude that you properly denied the disputed portion of Mr. Vesper's request.
OPINION OF THE ATTORNEY GENERAL
This Office has recognized that an agency cannot withhold every document which relates to a particular matter under KRS 61.878(1)(j) and the attorney client privilege simply because it is represented by an attorney in that matter. OAG 88-25. However, we have also recognized that it is the attorney who is best able to "make a ready determination of what papers come under the attorney-client privilege." OAG 81-246. We have consistently held that those specific documents which are actually generated in the course of the attorney client relationship, and therefore fall squarely within the privilege, or are the work product of an attorney, may be withheld from public inspection pursuant to Kentucky Rules of Civil Procedure, CR 26.02(1) and (3), KRS 447.154 and KRS 61.878(1)(j).
KRS 61.878(1)(j) exempts from mandatory disclosure, "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Records which are privileged or which are the work product of an attorney in the course of advising a client are not discoverable under CR 26.02(1) and (3). Such records are therefore exempt from public inspection under KRS 447.154, which 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, and KRS 61.878(1)(j). OAG 81-246; OAG 81-291; OAG 82-169; OAG 82-295; OAG 85-20; OAG 87-28; OAG 88-32; OAG 88-49; OAG 91-53.
CR 26.02(1) provides, in relevant part, that a party "may obtain discovery regarding any matter, not privileged , which is relevant to the subject matter involved in the pending action." (Emphasis added.) Attorney client communications are ordinarily privileged and therefore protected from discovery. The attorney client privilege is codified at KRS 421.210(4), which states:
No attorney shall testify concerning a communication made to him, in his professional character, by his client, or his advice thereon , without the client's consent.
(Emphasis added.) This provision has been interpreted to mean that any communication between an attorney and his or her client is privileged, if the communication is made in confidence while the attorney is acting in a legal capacity and relates to the purpose for which legal representation is sought by the client. Lawson, at § 5.00.
Privileged communications must be confidential, and although no express request for secrecy is necessary:
[T]he mere relation of attorney and client does not raise a presumption of confidentiality . . . the circumstances are to indicate whether by implication the communication was of a sort intended to be confidential. 8 Wigmore, Evidence § 2311 (McNaughton rev. 1961). If a party has not treated an internal document as confidential in advance of litigation, the party cannot claim that the document is protected by the privilege during discovery. Bertelsman & Philipps, Ky. Practice , CR 26.02 (4th ed.); Westmoreland v. CBS, Inc., 97 F.R.D. 703 (D.C.N.Y. 1983). Voluntary disclosure by the holder of the privilege is clearly inconsistent with the confidential relationship and thus constitutes a waiver of the privilege.
Mr. Vesper argues that by disseminating the memoranda which he seeks to inspect to other public agencies, your client waived the attorney client privilege. While it is undoubtedly true, as you suggest, that communications between joint clients are fully protected in litigation between the clients and a third party, we cannot agree that the documents which you withheld represent advice on the subject of the litigation. Instead, a review of these documents pursuant to KRS 61.880(2) demonstrates that they pertain to more general zoning and land use questions, and this exception to the general rule is therefore inapposite. The documents date back to March 19, 1986, and consist of a series of legal memoranda setting forth legal analysis of current cases and recommending policies. Accordingly, we find that although the disputed documents contain communications between you and your client, they were not made in confidence, within the meaning of KRS 421.210(4), since they were circulated to other public agencies. To the extent that they were distributed to these agencies, their confidential character was compromised.
We are not, however, "bound to any procedure of considering only the reason given by the agency" in support of its decision to withhold records. OAG 82-169. The interoffice exchange of memoranda in which opinions are expressed or policies formulated or recommended suggests to us another exception to the requirement of mandatory public inspection to the Open Records Act, to wit, KRS 61.878(1)(g) and (h). Those provisions authorize nondisclosure of:
(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
These subsections are intended to insure the integrity of an agency, or agencies', decision making process by protecting all of its, or their, pre-decisional documents.
This Office has consistently held that perliminary interoffice or intraoffice memoranda or notes setting forth opinions, observations and recommendations, may be withheld from public inspection. OAG 86-54; OAG 87-10; OAG 87-64; OAG 89-69; OAG 91-23. Written communications from agency counsel setting forth legal analysis and interpretation and recommending policies falls within this exemption, and these documents retain their exempt status unless they are adopted as final agency action. Such memoranda must be made available if they are, or have been, so adopted, inasmuch as they lose their preliminary status to the extent that they are adopted by the agency in taking final action. The fact that the documents were disseminated to other agencies does not nullify the exceptions inasmuch as KRS 61.878(5) mandates the exchange of otherwise exempt records between public agencies when the exchange is serving a legitimate governmental need. OAG 77-66; OAG 79-475; OAG 79-608; OAG 85-94; OAG 91-22; OAG 91-86. As we have observed, "[T]he sharing of information among public service agencies does not mean that such information can be made available to the public if it is of a confidential nature." OAG 77-666.
We conclude that although you improperly invoked KRS 61.878(1)(j) and the attorney client privilege in denying Mr. Vesper's request, the documents were properly withheld pursuant to KRS 61.878(1)(g) and (h), and were properly shared with other public agencies pursuant to KRS 61.878(5).
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Paul Vesper. Mr. Vesper may challenge it by instituting proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court. KRS 61.880(5).