Request By:
Mr. Reginald L. Thomas
General Counsel
Kentucky State University
Frankfort Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As attorney for Mr. Glenn J. Boggs, Mr. Gerald Colston, Mr. James H. Loy, and Mr. Dennis Pastor, Mr. Steven G. Bolton has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his May 15, 1991, request to inspect certain records in the possession of Kentucky State University. Those records are identified as:
* Recommendations and Findings of Grievance Committee to President Wolfe concerning grievance hearing of Dennis Pastor conducted March 18, 1991.
* Entire personnel file of James Loy -- any and all correspondence, memoranda or other written or recorded proceedings regarding the termination of James Loy from employment at Kentucky State University.
* Entire personnel file of Gerald Colston. Any and all correspondence, memoranda or other written or recorded proceedings regarding the termination of Gerald Colston from employment at Kentucky State University.
* Entire personnel file of Glenn Boggs. Any and all correspondence, memoranda or other written or recorded proceedings regarding the suspension, investigation and disciplinary action of Glenn Boggs.
You responded to Mr. Bolton in a letter dated May 15, 1991, indicating that while the University is generally limited in the disclosures it can provide to third parties from an individual's personnel file under KRS 61.878(1)(a), (g) and (h), KRS 61.884 provides for an individual's access to public records relating to him, unless the records are otherwise exempt. Accordingly, you advised Mr. Bolton that as a matter of University policy, his clients could inspect their files, but that he would have to obtain signed consent forms from Messrs. Boggs, Colston and Loy before he would be permitted access to the files. You denied Mr. Bolton's request to inspect any and all correspondence and memoranda pertaining to the suspension or termination of his clients. Although you did not cite a specific statutory exception authorizing nondisclosure, as required by KRS 61.880(1), you stated that you had authored the requested documents "for the benefit of the University" and that they were therefore exempt from inspection as arising out of the attorney/client relationship. In addition, you denied the existence of any recorded proceedings pertaining to Mr. Boggs, Mr. Colston and Mr. Loy.
In his letter of appeal to this Office, Mr. Bolton disputes a number of these contentions. Specifically, he argues that as attorney for these individuals, he should be allowed access to their personnel files, that he is certain that the investigation into violations of University policy by Mr. Boggs were recorded since he was present during the proceedings, and that you failed to address his request for access to the Recommendations and Findings of the Grievance Committee concerning Dennis Pastor.
On May 16, 1991, you submitted a response to Mr. Bolton's appeal in which you stated that, having tendered signed consent forms, he would be allowed full access to his clients' personnel files, including the Grievance Committee's recommendations and finding relating to Mr. Pastor, which could be found in his personnel file. Moreover, you indicated that Mr. Bolton would be permitted to inspect witness statements contained in a January 22, 1991, police report involving the incident which gave rise to Mr. Loy's termination, which the University deems confidential and exempt from mandatory disclosure pursuant to KRS 61.878(1)(a). You modified your position with regard to the taped investigation into Mr. Boggs, stating:
The only issue of denial of open records disclosure in my letter of May 15, 1991 to Mr. Bolton dealt with my exercise of the attorney/client privilege. I should say that Mr. Bolton is correct in stating that the University's internal investigation of Mr. Boggs was a recorded proceeding. In my response to Mr. Bolton on May 15, 1991, I failed to realize that these tapes of Mr. Boggs' investigation were placed in a separate location for safekeeping. Nonetheless, the University adopts the position that these tapes are precluded from doctrine and the attorney/client privilege. These tapes were used by myself in formulating a report to the President of the University regarding an alleged violation of University policy by Mr. Boggs. As a result, these tapes and any notes taken by me are privileged material. See , OAG 88-32. Such tapes are clearly distinguishable from recordings of a University Grievance Committee hearing which unquestionably are open to inspection under the Kentucky Open Records Laws. See OAG 87-62.
Mr. Bolton asks that we review the University's partial denial of his request to determine if this action was consistent with the Open Records Act. For the reasons set forth below, we conclude that you improperly denied that portion of his request.
OPINION OF THE ATTORNEY GENERAL
In a conversation with the undersigned on June 19, 1991, you confirmed that Mr. Bolton had been afforded access to all of the records he initially requested with the exception of the taped investigative proceedings involving his client, Glenn Boggs, in which he and Mr. Boggs participated. You indicated that the proceedings were conducted for the purpose of allowing Mr. Boggs to present his case and examine the witnesses against him, but did not constitute a formal grievance hearing pursuant to Kentucky State University Staff Policy and Procedure Number 6.0. Based on the evidence adduced at the proceedings, you prepared a report for the President of the University. Your report apparently served as the basis for final disciplinary action against Mr. Boggs. It is your position that the tapes are protected from disclosure by the work product doctrine and the attorney/ client privilege.
This Office has repeatedly opined, and the express language of the Open Records statute makes clear, that an agency must cite one of the exceptions codified at KRS 61.878(1)(a) through (j) in denying a request to inspect public records, and provide a brief explanation of how the exception applies to the record withheld. KRS 61.880(1); OAG 81-345; OAG 82-192; OAG 83-144; OAG 85-71; OAG 85-120; OAF 86-36; OAG 86-86; OAF 88-6; OAG 90-26. To the extent that the University failed to cite the exception upon which it relied in denying Mr. Bolton's request, its response was deficient.
For purposes of this analysis, we will assume that you intended to rely on KRS 61.878(1)(j), which 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. 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. Court rules thus have the force of law and matters which are made confidential by rule are exempt pursuant to KRS 61.878(1)(j); OAG 81-246; OAG 81-291; OAG 82-169; OAG 82-295; OAG 85-20; OAG 87-28; OAG 88-25; OAG 88-32; OAG 88-49; OAG 91-53.
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 work product doctrine simply because it is represented by an attorney in that matter. OAG 88-25. We have also recognized, however, that it is the attorney who is best abled to "make a ready determination of what papers [or records] come under the attorney/client privilege." OAG 81-246. We have consistently held that records 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 inspection. See OAG's cited above.
We do not agree that OAG 88-32 is dispositive of this appeal. That opinion, which you cite in support of your position, involved, among other things, the minutes of a personnel committee meeting which was taped at the agency's discretion, solely to assist the agency's secretary in preparing those minutes. At the meeting, the hospital's attorney offered advice to various hospital committee members. We held that the tape recording was exempt from public inspection as a preliminary document pursuant to KRS 61.878(1)(g) and (h) since it was made by the agency for the sole purpose of preparing minutes. We further held that "documents which constitute the work product of any attorney and those which come within the attorney/client relationship may be excluded from public inspection. " OAG 88-32 at pp. 4-5. We do not interpret this opinion to mean that every taped record of an agency proceeding at which an attorney is present is exempt under KRS 61.878(1)(j) as attorney work product or otherwise protected from disclosure by the attorney/client privilege.
Clearly, the tape does not fall within the parameters of the attorney/client privilege. That 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 advise thereon, without the client's consent.
Thus, if a communication is made in cofidence, while the attorney is acting in a legal capacity and relates to the purpose for which legal representation is sought by the client, it is privileged. Lawson, Kentucky Evidence Law Handbook Section 5.00 (2nd ed., 1989).
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). Voluntary disclosure, or the presence of third parties, is patently inconsistent with the confidential relationship, and thus constitutes a waiver of the privilege.
You indicate that both Mr. Bolton and Mr. Boggs were present at the investigative proceedings of which Mr. Boggs was the subject. It cannot, therefore, be persuasively argued that the proceedings were confidential. Nor can it be argued that the tapes of the proceedings constitute "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning . . . litigation." CR 26.02(3). Accordingly, the tapes are not exempt as attorney work product in that they are not "materials prepared or collected by an attorney in the course of preparation for possible litigation."
Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Although the report you prepared for the President subsequent to, and based upon, the taped proceedings may be protected from disclosure by the attorney/client privilege, the tapes themselves are not exempt.
Although we are not "bound to any procedure of considering only the reason given by the agency" in support of its decision to withhold records, OAG 82-169, we conclude that the tapes are not otherwise exempt. As we noted in OAG 87-62, the tapes are, for purposes of the Open Records act, public records since the hearing at which the tapes were made was conducted by a public agency and involved an employee of a public agency. The tapes were not made solely to assist the University in preparing minutes of the hearing. It therefore appears that KRS 61.878(1)(g) and (h) are inapplicable. The tapes were used as the basis for your report to the president, upon which final disciplinary action was taken. To the extent that they were adopted into this final action, they lost whatever preliminary status they may have enjoyed as internal investigative materials.
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982);
Kentucky State Board of Medical Licensure v. The Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1983); OAG 83-41; OAG 87-23; OAG 89-69; OAG 91-90. Although KRS 61.878(1)(f) exempts agency records which are involved in administrative adjudications until enforcement action is completed, the administrative proceedings herein have been concluded. Finally, it cannot be persuasively argued that the tapes are exempt under KRS 61.878(1)(a), which excludes from inspection, records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. That provision is intended to protect against disclosure of personal information to third parties, and is inapplicable where the requester is the subject of those records, or whith his consent, his attorney. This is especially true in the present case since both Mr. Boggs and Mr. Bolton were present at, and participated in, the hearing at which the tapes were made.
We therefore conclude that the University improperly denied Mr. Bolton's request for access to the tapes of the investigative proceeding of which his client was the subject. It is clear that the tapes are not exempt from disclosure pursuant to KRS 61.878(1)(j), and the attorney/client work product doctrine. Having examined the remaining exemptions to the Open Records Act, we conclude that the tapes are not otherwise exempt.
As required by statute, a copy of this opinion will be sent to Mr. Steven G. Bolton. The University may challenge it by instituting proceedings in the appropriate circuit court pursuant to KRS 61.880(5).