Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky Association of Counties' (KACo's) response to Thomas J. Banaszynski's request for public records relating to the provision of legal services to KACo. On April 5, 1995, Mr. Banaszynski requested copies of:
1. The current contract for provision of legal services to KACo;
2. The request for proposal "or other generating document" which culminated in the current contract for legal services;
3. The proposal, with any addenda, submitted by the successful bidder;
4. The proposal(s) submitted by finalist(s);
5. Summary information on payment for legal services for KACo for calendar years (or fiscal years) 1992 to 1995 to date, including payments to attorneys, paralegals, clerks, costs;
6. Payments made to any third party legal provider;
7. Annual report for the payment of legal services for the preceding three years, and current year to date;
8. Bidding cycle, or other schedule for contracting for the provision of legal services; 9. List of current Board of Directors or other governing body.
With the exception of the final document, which was released on April 11, 1995, KACo denied Mr. Banaszynski's request.
In support, John M. Griggs, KACo's executive director, explained that KACo has generated no request for proposals for legal services, and thus has neither a request nor responsive proposals which satisfy Mr. Banaszynski's request. Additionally, Mr. Griggs indicated that KACo has no current contract for provision of legal services. With respect to records reflecting payment for legal services from 1992 to the present, Mr. Griggs opined:
Any written information concerning legal work performed in litigation involving general liability, negligence and workers' compensation is exempt from disclosure under KRS 61.878(1).
He did not elaborate.
On April 27, Mr. Banaszynski significantly broadened the scope of his request, asking for the same, or similar records, relative to various programs administered by KACo, including KACo-KLC Self Insurance Fund, Kentucky Association of Counties All Lines Fund (KALF), Kentucky Association of Counties Medical Program (KAMP), KACo-KML Workers' Compensation Fund, and KACo Unemployment Insurance Fund. He expressed an interest in the records of these agencies which pertain to workers' compensation claims, workers' compensation subrogation, automobile and motor vehicle subrogation, automobile and motor vehicle personal injury, wrongful death, tort, negligence, and personal injury actions, contract disputes, and employee defense. In addition to the records requested in his April 5 letter, Mr. Banaszynski requested copies of current contracts or agreements between KACo, and the program administered by KACo, and Government Services Corporation.
On May 2, Mr. Griggs responded to this revised request. A summary of his comments follows:
KACo-KML Workers' Compensation Fund, which is also known as KACo-KLC Workers' Compensation Fund, ceased providing coverage on July 1, 1993.
KACo All Lines Fund (KALF) has a three year contract with a third party claims administrator for litigation defense of claims covered under the program. KALF has no contract for the specified legal services.
KACo Medical Program (KAMP) has no written contract for legal services or requests for proposals, and provides for none of the specified legal services.
KACo Unemployment Insurance Fund recently retained new counsel based on interviews with various law firms.
With respect to the records of KACo Unemployment Insurance Fund (UI Fund), Mr. Griggs referred Mr. Banaszynski to Doug Durso, the Fund's administrator.
Mr. Durso subsequently advised Mr. Banaszynski that the UI Fund retained Stites & Harbison for "general 'corporate' representation of the Fund in February, 1995." Stites does not, Mr. Durso stated, provide any of the legal services identified in Mr. Banaszynski's letter. Nor, he noted, does the UI Fund have a current contract for the provision of the specified legal services or a contract with Government Services Corporation. A review of the Fund's records disclosed no requests for proposals or responsive proposals relative to the specified legal services. Finally, Mr. Durso stated that the UI Fund has "made no such payments in 1992 to date for the legal services mentioned in your April 27, 1995 letter."
In his letter of appeal, Mr. Banaszynski asserts that KACo "has failed to provide any information concerning the open records request submitted to it." He argues that KACo and the programs it administers are obligated to release records relating to the provision of legal services for general liability and workers' compensation claims. In support, he cites 92-ORD-1232, 92-ORD-1245, 93-ORD-96, and 94-ORD-13. 1 In rebuttal, Mr. Griggs notes that the only "information" not provided to Mr. Banaszynski by KACo relates to "litigation against individual counties or county governments." Continuing, he observes:
The Kentucky Association of Counties sponsors a property and casualty liability program, which provides defense to county governments and individual county employees for various types of claims brought by attorneys such as Mr. Banaszynski. The information dealing with particular litigation is handled by a claims administrator and the information concerning attorney fees and litigation expenses on those cases are maintained by the claims adjuster in each individual litigation file. It is KACo's opinion that KRS 61.878 precludes the release of any information pertaining to civil litigation beyond what is provided by the Rules of Civil Procedure governing pre-trial discovery. Information concerning attorney fees and litigation expenses for these contested claims is, in our opinion, governed by the attorney-client privilege . . . .
In closing, Mr. Griggs notes that it would be "counterproductive to local governments" if they were required to release records relating to litigation to plaintiffs' attorneys.
We are asked to determine if KACo violated provisions of KRS 61.870 to 61.884 when it partially denied Mr. Banaszynski's requests. For the reasons set forth below, and upon the authorities cited, we conclude that although KACo and the programs it administers cannot produce records which do not exist, such as written contracts, requests for proposals, and responsive proposals, they are required to release records of payments made to attorneys.
In OAG 92-14, this office engaged in a lengthy analysis of the scope of the attorney-client privilege in the context of fiscal arrangements. It is instructive to quote a portion of that opinion:
The Attorney General's office has . . . recognized that an agency cannot withhold every document which relates to a particular matter under KRS 61.878(1)(j) [now (1)] and the attorney client privilege simply because it is represented by an attorney, in that matter. OAG 88-25. Only those documents which are actually generated in the course of the attorney client relationship, and therefore fall squarely within the privilege, may be withheld from public inspection pursuant to the Kentucky Rules of Civil Procedure, CR 26.02(1), KRS 447.154 and KRS 61.878(1)[(1)].
In OAG 82-169, this office addressed the question whether the Jefferson County Public Schools could withhold, inter alia, Board records of payments to its attorney, and bills and statements submitted to the Board by its attorney, under KRS 61.878(1)[(1)] and the attorney client privilege. There we concluded that although generally the contracts, vouchers, and other business records of a public agency are open to public inspection under the Open Records Act, because the Board was engaged in litigation and would be disadvantaged in that law suit by the release of the requested records, they could be withheld pursuant to KRS 61.878(1)[(h)] until the litigation was concluded. This office implicitly rejected the argument that such records were protected by the attorney client privilege and KRS 61.878(1)[(1)]. We affirmed this position in OAG 85-91, where we held that a public agency's denial of a request to inspect the contracts, retainer agreements, and other documents pertaining to the relationship between the agency and its attorneys was improper. In that opinion we expressly stated that failure to disclose records of payments, other than as contained in regular income and accounting records, was improper. OAG 85-91, at p. 3. . . .
The Kentucky Supreme Court has recognized that communications relating to the fiscal arrangements between an attorney and his client do not fall within the attorney client privilege. In Kentucky-Virginia States, Inc., v. Tackett, Ky., 182 S.W.2d 226 (1944), the court held that the terms and scope of employment are not communica- tions made to an attorney in his professional character by the client. An attorney does not act as a legal adviser when communi- cating with the client about his fee, but instead acts in his own interest, representing himself exclusively. Tackett, supra, at 230. This reasoning was adopted in United States v. Haddad, 527 F.2d 537 (6th Cir. 1975), wherein the Sixth Circuit held that amounts paid or owed to an attorney by his client are generally not within the attorney client privilege.
Although it does not appear that either the Sixth Circuit or a Kentucky court has had occasion to address the question whether the underlying bills are privileged, in In Matter of Walsh, 623 F.2d 489 (7th Cir. 1980), the Seventh Circuit held that because matters involving the receipt of fees from a client and who paid the fees are not privileged, a grand jury was entitled to review the ledgers, bills, time records, and retainer agreements prepared by an attorney.
OAG 92-14, pp. 4, 5. However, we have also recognized that because such records might disclose substantive matters pertaining to the rendition of legal services, a public agency need only disclose the general nature of services rendered. OAG 92-14; see also, OAG 92-92; 95-ORD-18. Thus, the agency may redact any references to substantive matters, litigation strategy, or the specific nature of the services provided by its lawyers which appear on the records, and it must be afforded considerable latitude in separating the exempt material from the nonexempt material. OAG 92-92, p. 9.
KACo argues that KRS 61.878(1) precludes the release of information concerning attorney fees and litigation expenses for contested claims because it is governed by the attorney-client privilege. Based on the authorities cited above, we reject this argument. It is the opinion of this office that KACo and the agencies it administers, as identified in Mr. Banaszynski's request, must disclose records of payments for legal services under the guidelines articulated above.
However, with respect to current contracts for legal services, requests for proposals which culminated in the execution of the contracts, proposals submitted in response to the requests, and other documents the existence of which Mr. Griggs and Mr. Durso deny, we find that KACo properly denied Mr. Banaszynski's requests. At page four of 93-ORD-51, this office recognized that a public agency cannot afford a requester access to a document which does not exist. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist but which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Because KACo and the programs it administers did not issue an RFP for the provision of legal services, they have no records which satisfy this portion of Mr. Banaszynsky's request. The response of the public agency was proper and consistent with the provisions and requirements of the Open Records Act insofar as the agency cannot make available for inspection records which do not exist.
Finally, we note that although Mr. Durso indicated that the UI Fund has no contract with Government Services Corporation, Mr. Griggs failed to advise Mr. Banaszynski if KACo, KALF, or KAMP are currently under contract with GSC. Consistent with the position adopted in OAG 82-169, 2 and reaffirmed through the years, such contracts, if they exist, are clearly open records, and subject to public inspection. If KACo, or any program it administers has a contract with GSC, those records should be disclosed forthwith.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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