Request By:
Mr. David G. Vest
First Assistant Fayette County Attorney
207 North Upper Street
Lexington, Kentucky 40507
Opinion
Opinion By: Federic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Ron Snowden has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of a series of open records requests submitted to your office since August, 1991. Mr. Snowden was prosecuted by the County Attorney's Office and pled guilty to a charge of harassing communications in the aftermath of a failed relationship. The subject of those communications was his former girlfriend, Ms. Kelly M. Wojcik, who filed charges against Mr. Snowden in June, 1990. Following these incidents, Ms. Wojcik left the state.
On August 21, 1991, Mr. Snowden submitted the first of many requests to the Fayette County Attorney's office, seeking access to the following documents:
Any and all documents, notes, tapes, computer records, and memos that your agency has in it's possession that have my name on them or that refer to me as the defendant, or suspect in any crime either by name, nickname (Draconis), or by inferance [sic].
Any and all documents, notes, tapes, computer records, and memos that your agency has in it's possesion [sic] that concern previous criminal charges against me that were made by Kelly M. Wojick.
Any and all documents, notes, tapes, computer records, and memos concerning arraignemts [sic], hearings, or trials on those complaints.
Any and all documents, notes, tapes, computer records, and memos that your agency has in it's possession concerning names and addresses of witnesses who were subpeonaed [sic] or asked to testify against me in any criminal action including the Harassment, Harassing Communications charges filed by Ms. Kelly Wojick and the dismissal from the Diversion Program as well as the Probation Violation that resulted from those charges.
The names of all of your employees who participated in any way in the investigating, or prosecution of those charges as well as an estimate as to how many man hours were expended by each during thier involvement with the charges against me.
You responded to Mr. Snowden's request on August 26, 1991, advising him that he would be afforded access to all nonexempt documents. You further advised him that "[m]any of the records . . . [sought] are in the possession of the Fayette District Court Clerk and/or Pre-Trial Services." Finally, you noted that "[w]ork papers and preliminary memoranda prepared by the staff and attorneys of this office" are exempt from the application of the Open Records Act.
Apparently dissatisfied with your response, and his subsequent inspection of the documents identified in his first request, Mr. Snowden submitted a second, and significantly expanded, request on October 9, 1991. On this occasion, he asked to inspect, inter alia:
Any files, documentation, memos, computer files or printouts that have either my name or social security number or my handle on them or associated with them. Note that my handle is Draconis, or Drac for the abbreviated version.
Any files, documentation, memos, computer files or printouts that have information concerning the location or addresses, and phone numbers of known individuals involved with the criminal complaints against me. By knowm [sic], I refer to the memebers [sic] of the Wojcik family, Mr. Jeff Galloway.
Any files, documentation, memos, computer files or printouts, or bills that will show any and all long distance calls placed by your office concerning my cases, and what dates, times, and numbers these calls were made to. Should there be no such list to provide the information in a form that is exclusive to my case, then I ask to see all phone bills and call transactions originating from your office for the past two years.
The names of any of your staff who have expended any appreciable amount of time on my case. I understand there is no list showing what hours were expended, but the names alone will suffice for now.
* * *
Copies of all felony or misdemeanor complaints I have filed against Kelly Wojcik, Jeff Galloway and Kathy Snowden and the explanations for why there was no action taken on them, the names of the reviewing attorney and judge associated with each charge.
* * *
A listing of any evidence collected by your office or the local police concerning the allegations of Harassment or Harrassing Communications filed by either Kelly Wojcik or Kathy Snowden. Tapes, personal sworn statements, signs, posters, memos, letters, messages or any other form of material evidence that applies to these cases.
In addition, Mr. Snowden demanded an explanation for the "segregation" of data pertaining to his case, and for the County Attorney's "invasion of [his] privacy by collecting messages from local [computerized] bulletin board systems." He asked to be advised what other offices might be expected to have information concerning his case, and how to pursue an open records appeal "when a citizen does not concur or agree with your offices [sic] findings or opinions."
You immediately responede to Mr. Snowden's second request, indicating that he had been afforded access to all nonexempt documents in your office's possession. You stated that all information concerning complaints filed against him could be obtained from the Fayette Circuit Court Clerk, and denied his request for "phone bills and call transactions . . . for the past two years." In response to Mr. Snowden's requests for a "list" of County Attorney staff involved in his case, and a "list" of evidence collected in his case, you asserted that the Open Records Act does not require a public agency to create a list if one does not exist. You briefly answered his remaining questions, which cannot properly be characterized as open records requests. In closing, you observed:
The records produced under your original request and this request strictly conformed to the requirements and the limitations of the Open Records Act. Work papers and preliminary memoranda prepared by the staff and attorneys of this office, if any, are not discoverable under the Act. In addition this office will not assist you in continuing to attempt to contact, harass and annoy individuals that do not wish to be contacted, annoyed or harassed by you. For that reason personal information, such as telephone numbers, current addresses, etc., of witnesses and complainants will not be provided under the Open Records Act, since it is the opinion of this office that to do so would conflict with the obligations and duties of this office.
On October 18, 1991, Mr. Snowden ssubmitted a third open records request to your office, seeking access to:
Any and all documents, notes, tapes, computer records, and memos that your agency has in it's possession that list campaign contributions and contributors for your last election to the office you currently hold.
Any and all documents, notes, tapes, computer records, and memos that your agency has in it's possession that concern expenditure of funds provided by taxpayers such as myself. These expenditures are for operating expenses, rental or lease agreements, telephone and other utility bills (detailed and itemized, please), budget proposals and all other accounting information detailing how your office handles public funds and exactly how those monies are spent.
Any and all documents, notes, tapes, computer records, and memos concerning salary information for all of your employees.
Any and all documents, notes, tapes, computer records, and memos that your agency has in it's possession that would constitute a roster of your employees, their job titles, rates of pay, attendance records, and performance records as regards their activities while serving the Commonwealth of Kentucky.
Any and all documents, notes, tapes, computer records, and memos concerning the identifies and numbers of Kentucky citizens dismissed from the Diversion Program for any reason except successful completion of that program.
You promptly responded to Mr. Snowden's third request by letter dated October 22, 1991, directing him to the Registry of Election Finance for records pertaining to campaign contributions. You explained that his request for all documents relating to the expenditure of taxpayer funds, although "vague and imprecise," could be satisfied by a review of the office's annual budget, in the possession of the Urban County Government and Prosecutors Advisory Counsel, and the office's own monthly and annual financial statements, which include salary information. You denied his request for attendance and performance records of Fayette County Attorney employees, citing the privacy exemption, and indicated that your office does not maintain a list of individuals dismissed from the Diversion Program.
In a separate letter, you offered a more detailed explanation of your office's position, noting:
The Kentucky Open Records Act was and is intended to provide citizens with information through the mechanism of providing access to public documents which are not exempt from the law. OAG 79-547. Information, in the form of explanations for public agency actions, is available under the Act only if such information exists in documentary form. Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency are exempt from inspection under KRS 61.878(1)(g). We have refused to provide you with a list of telephone numbers of individuals who may be concerned with your case, because no such list exists. OAG 76-375. We have refused to provide you with telephone records of this office since to do so would, in our opinion result in a clearly unwarranted invasion of privacy as well as result in a violation of federal and state regulations concerning confidentiality. OAG 76-375; KRS 61.878(1)(a,i).
You reaffirmed your position that Mr. Snowden had been given an opportunity to inspect all nonexempt documents in the files of the Fayette County Attorney.
Undeterred, Mr. Snowden again contacted your office on October 30, 1991, arguing that the claimed exemption for inter-office memos and preliminary working papers is valid only while an action is pending. "Once your final action has been taken and the case is closed," he observed, "these revert back to public domain records and can indeed be inspected by any citizen under the Act." He strenuously objected to your invocation of the privacy exemption, suggesting that that exemption "is intended to insure the protection of confidential sources." Since he is aware of Ms. Wojcik's identity, he theorized that the exemption is inapplicable. He acknowledged:
My desire is to obtain from your office the current address and phone number of one Kelly Wojcik who has used your offices and the law to harass and annoy me.
* * *
I desire access to all information regarding me and Ms. Wojcik [sic] that your office has in it's files. I want to look at your phone bills to determine her current location and phone number. My logic is that I have the right to know and face my accusers, and that as the cases are closed any and all claimed exemptions under the act are now invalid.
On November 5, 1991, you responded to Mr. Snowden's final request. In that letter, you concluded:
You are correct that this office does not agree with either your opinions on the Open Records Act or your attempted use of that law.
* * *
The fact that you feel that you must 'clear your name,' and believe that further access to Kelly Wojick [sic] is a necessary element in that process is a personal decision that you have made. The fact that we will not assist you by providing you information concerning Ms. Wojick's [sic] whereabouts is a decision that we are compelled to make based upon our judgement concerning our duty.
In his November 14, 1991, letter of appeal to this Office, Mr. Snowden takes issue with your decision to withhold workpapers and preliminary memoranda prepared by staff and attorneys of your office, telephone bills, and correspondence with private individuals. It is his position that since the cases are closed, "all documentation has lost that 'exempt' status given to them [sic] under the Act while the cases were in progress." He asks that this Office find that the Fayette County Attorney acted inconsistently with the Open Records Act in refusing to release "all documentation bearing his name or nickname and telephone bills for the period of January 1, 1990, through November 14, 1991." We assume, for purposes of this appeal, that all other documents requested by Mr. Snowden have been provided to his satisfaction. For the reasons set forth below, we concluded that you properly withheld the disputed documents identified in Mr. Snowden's letter of appeal.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General. Contrary to Mr. Snowden's allegations, you promptly responded to each of his four open records requests. That he was dissatisfied with the nature of those responses, which he perceives as dilatory, has no bearing on their timeliness.
Turning to the issue in this appeal, we find that your reliance on KRS 61.878(1)(a), relating to public records containing information of a personal nature, and (g), relating to preliminary drafts notes, and correspondence with private individuals, to authorize withholding of the disputed documents was entirely proper. Moreover, it is the opinion of this Office that additional grounds exist for the withholding of those documents, specifically, KRS 61.878(1)(j), which prohibits the release of records the disclosure of which is restricted by enactment of the general assembly.
This Office has consistently recognized that records which are privileged or which represent the work product of an attorney in the course of defending or prosecuting a case 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, such as CR 26.02, 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. Records which are generated by an attorney for the Commonwealth, or his staff, in prosecuting a criminal action are clearly work product. Such records fall squarely within the parameters of the exemption, and may be withheld from inspection.
We are not persuaded by Mr. Snowden's arguement that these records, and any other records or correspondence produced during the prosecution, lose their exempt status once final action, here, the entry of a guilty plea, is taken. While it is certainly true that a number of the exceptions to the Open Records Act lose their exempt status upon the occurrence of a specific event this has never been the rule with respect to attorney work product. Hence, any records which refer to Mr. Snowden, by name or nickname, and are properly characterized as attorney work product, may be withheld, the conclusion of criminal proceedings notwithstanding.
We further reject Mr. Snowden's argument that any and all preliminary documents containing his name or nickname must be made available at the close of the proceedings against him. KRS 61.878(1)(g) and (h) authorize the withholding 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;
This Office has repeatedly recognized that preliminary inter-or intra-office memoranda or notes, setting forth opinions, observations and recommendations, are exempt from the application of the Open Records Act. OAG 86-54; OAG 87-10; OAG 87-64; OAG 89-69; OAG 91-23; OAG 91-108. Written communications from an attorney setting forth legal analysis, investigative reports, and witness interviews retain their exempt status unless they are somehow adopted into final agency action. Such documents must be made available for inspection if, any only if, they are, or have been, so adopted. To the extent that they are adopted by the agency in taking final action, they lose their preliminary status. This is consistent with a long line of attorney general opinions, and the rule announced by the Kentucky Court of Appeals. City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982) and OAGs cited above. In addition, this precise issue was raised in OAG 90-77, where we held that a Commonwealth Attorney properly withheld documents pertaining to a guilty plea under KRS 61.878(1)(g) and (h). We therefore conclude that the preliminary documents referring to Mr. Snowden which your office withheld were properly excludable under KRS 61.878(1)(g) and (h).
This position finds additional support in KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(j). That statute provides:
Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant:
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest :
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in such records to be used in a prospective law enforcement action.
(Emphasis added.) Similarly, KRS 61.878(1)(f) authorizes nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were comiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884 , public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action.
(Emphasis added.) These provisions establish beyond cavil that a document generated in the course of a criminal investigation and prosecution may continue to be characterized as exempt "after enforcement action is completed." You properly relied on KRS 61.878(1)(g) to authorize your continued nondisclosure of preliminary documents and attorney work product.
With respect to your denial of Mr. Snowden's request for "telephone bills for the period of January 1, 1990, through November 14, 1991," you acted consistently with the Open Records Act in relying on KRS 61.878(1)(a). This Office has recently engaged in a lengthy analysis of the privacy exemption, a copy of which is attached for your review. In OAG 91-35, this Office applied the personal privacy balancing test formulated by the Court of Appeals in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981). That test requires that the public's interest in disclosure of personal information contained in public documents be weighed against the potential invasion of individual privacy. This balancing test is not "tilted in favor of disclosure, " as is the trend in the federal courts, and is therefore somewhat more restrictive. OAG 91-35, at p. 7.
This Office has recognized that an individual has a substantial privacy interest in his home address and telephone number. OAG 76-717; OAG 80-432; OAG 82-234; OAG 82-506; OAG 84-51; OAG 90-19. This interest becomes particularly compelling when the individual whose address and phone number are sought has been the subject of repeated incidents of harassing contact and calls. We can identify no substantial "public interest" in the disclosure of the telephone bills under the facts presented here and are not persuaded that this information will avail Mr. Snowden of an opportunity to vindicate himself. Although we held in OAG 86-21 that a public agency could not withhold telephone records under the privacy exemption where the request was made for purposes of monitoring abuse of long distance calls, we acknowledged:
There undoubtedly will be instances when there is a legitimate need by a public agency to keep telephone numbers it has called confidential . . . Upon a proper showing, pursuant to an exception to public inspection under the Open Records Act, the public agency probably can refrain from disclosing the telephone numbers involved.
OAG 86-21, at p. 4. We believe that such a showing has been made by your office, and that Mr. Snowden's right of access to the county attorney's telephone records for purposes of ascertaining Ms. Wojcik's current place of residence must yield to Ms. Wojcik's significant privacy interest in that information. We note, in passing, that such information is also exempt under the exceptions cited above, specifically KRS 61.878(1)(f) and KRS 17.150(2). While Ms. Wojcik's identity is not confidential, her whereabouts are, and may remain, confidential.
As required by statute, a copy of this opinion will be sent to the requester, Mr. Ronald Snowden. Mr. Snowden may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).