Request By:
Ms. Sheila Trice Bell
University Legal Counsel
Northern Kentucky University
Highland Heights, Kentucky 41076-1448
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As attorney for the Lexington Herald-Leader Company, Mr. Thomas W. Miller has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of an open records request submitted by Mr. Kit Wagar, a staff writer for the Herald-Leader. On February 25, 1991, Mr. Wagar requested access to "various records related to [Northern Kentucky] University's recent efforts to have built student resident facilities." Specifically he asked that he be permitted to inspect:
* correspondence with potential developers of such a facility;
* memos and documents about the need for such a facility;
* correspondence, memos and other documents concerning residence facilities at other universities that could be models for NKU's residence facility;
* memos or other correspondence from Dennis Taulbee to the board of regents and to President Leon Boothe;
* correspondence, memos or other documents that show contact with Pulliam Investment Co.; Graves/Turner Developments Inc.; Mims, Graves & Turner Ltd.; EO Associates; RPR & Associates or any other company about building a residence facility at NKU;
* correspondence, memos or other documents that show contact between the university and members of the Residential Village evaluation committee;
* correspondence, memos or other documents that show contact between the university and any employee of the state Finance Cabinet.
On March 4, 1991, you responded to Mr. Wagar's letter indicating that the University would release most, but not all, of the requested records. Relying on KRS 61.878(g), you stated that you would not make available for inspection certain preliminary documents consisting almost entirely of handwritten notes made by Northern Kentucky University staff. In a subsequent letter, dated March 22, 1991, you advised Mr. Wagar that additional materials would be withheld. You described these materials as attorney work product, and claimed exemption under the Open Records Law.
On April 4, 1991, a contract was awarded to Pulliam Investment Company for the construction of the student resident facilities, thus marking the close of the competitive bidding process undertaken by the state Cabinet for Finance and Administration. This matter having been concluded, the University agreed to release the documents it had previously withheld under KRS 61.878(1)(g) and (h). You did, however, indicate that you would not release those documents identified as attorney work product.
Because you have agreed to release the preliminary documents to which Mr. Wagar requested access, we will not address this issue. We will, instead, restrict our analysis to the issues raised by your denial of Mr. Wagar's request for attorney work product. For the reasons outlined below, we conclude that your partial denial was consistent with the Open Records Law.
OPINION OF THE ATTORNEY GENERAL
This Office has consistently held that attorney work product may be properly withheld from public inspection under KRS 61.878(1)(j). OAG 81-246; OAG 81-291; OAG 82-295; OAG 85-20; OAG 88-32. We see no reason to depart from that view today. It is therefore our opinion that your partial denial of Mr. Wagar's request was proper.
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." As we have previously observed, 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)]. 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 85-20; See also , United States v. Amerada Hess Corp., 619 F.2d 980, 987 (3rd Cir. 1980); Upjohn Company v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).
Simply stated, records which are privileged under the rules of discovery are exempt from mandatory disclosure under KRS 61.878(1)(j). We do not believe that the reasoning employed in the Court of Appeals non-final decision in Courier-Journal & Louisville Times Co. v. The University of Kentucky , 37 KLS 15 (Ky.App. 12-21-90), can be extended to this case. In University of Kentucky , the court required disclosure of documents identified as "evaluations of the University's counsel as to the significance of evidence." University of Kentucky , supra at 18. These evaluations, although initially exempt as preliminary records under KRS 61.878(1)(h), lost that status when they were incorporated into the final agency report. This narrow holding does not eliminate the long recognized exception to the Open Records Act for attorney work product.
Nor are we persuaded by the Florida case, Orange County v. Florida Land Company, Fla.App., 450 So.2d 341 (1984), cited in support of Mr. Wagar's position, inasmuch as that decision turns on an interpretation of the Florida Public Records Act, Chapter 119, Florida Statutes. Moreover, the Florida court did not require disclosure of all trial preparation materials. Only those documents that "supp[lied] the final evidence of knowledge obtained in connection with the transaction of official business," were declared to be public records. Whether designated attorney work product or preliminary documents, the remaining materials were exempt from inspection.
Pursuant to KRS 61.880(2), we have examined the records which the University has refused to released. They consist of a series of memoranda from University counsel to various University officials on wide-ranging legal matters. None of the documents have any direct bearing on the University's recommendation of, or the ultimate award of a contract to, Pulliam Investment Co. As such, they are exempt both as attorney work product under KRS 61.878(1)(j), and as preliminary memoranda under KRS 61.878(1)(h).
Accordingly, we find that the University's partial denial of Mr. Wagar's request was proper under the Open Records Act.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Kit Wagar, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.