Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from Kentucky State University's denial of Robert K. Landrum's August 8, 1996, request for a copy of "the outside consultant's report on Dr. Smith's performance as President of KSU authorized a year ago by the Board of Regents." 1 On August 21, 1996, Harold S. Greene, Jr., General Counsel, denied Mr. Landrum's request advising him as follows:
1. KRS 61.878(1)(a) exempts access to public records which are of personal nature [sic] and access would constitute an unwarranted invasion of personal privacy.
2. KRS 61.878 (1)(j) exempts access to preliminary recommendations memoranda [sic] in which opinions are expressed.
Mr. Greene did not elaborate, nor did he avail himself of the opportunity to supplement this response when he received the notification of receipt of open records appeal issued by this office on August 27, 1996.
Pursuant to KRS 61.880(2)(c), and 40 KAR 1:030 Section 3, on September 17, 1996, the Attorney General requested that Mr. Greene provide this office with a copy of the disputed record to facilitate our review. We assured him that the document would not be disclosed, and he indicated that he would fax it to us as soon as he located it. On September 19, we renewed that request, first in the morning, and again in the afternoon. In the course of the latter conversation, Mr. Greene expressed his belief that the consultant's report could not be disclosed to this office because it falls within the parameters of the attorney-client privilege. Again, he did not elaborate. He did, however, indicate that he would provide us with the minutes of the Board of Regents' meeting, 2 and a letter of explanation by the following morning. We emphasized the urgency of our need for the additional documentation requested. As of close of business on September 20, three working days before the open records decision in this matter was due to be released, the Attorney General had received no communication of any kind from Mr. Greene or the University. Acknowledging that we are severely handicapped in conducting our review, we must nevertheless proceed to an adjudication in this matter. For the reasons set forth below, we conclude that KSU improperly denied Mr. Landrum's request.
Although Mr. Greene did not raise the defense in his initial denial, we first address his argument that the consultant's report is shielded from disclosure by operation of the attorney-client privilege, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l) 3 and KRS 422A.0503. 4 In 94-ORD-88, this office analyzed the privilege in some depth. It is instructive to quote from that decision:
KRS 61.878(1)[(1)] authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 422A.0503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRS 422A.0503(2) establishes the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client[.] The privilege thus consists of three elements: The relationship of attorney and client, communication by the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed. R. Lawson, Kentucky Evidence Law Handbook , § 5.10 at 232 (1993), citing
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). Its purpose is to insure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objectives." Kentucky Evidence Law Handbook , § 5.10 at 232.
Although it is certainly true that a public agency can be a "client," and agency lawyers can function as "attorneys" within the relationship contemplated by the privilege, we fail to understand how an outside consultant's report could qualify for the privilege. The University might fervently wish that the report remain confidential. Nevertheless, it cannot be reasonably argued that the outside consultant occupies the role of attorney to the University's role as client. Nor can it be argued that the report constitutes communication by or to the client relating to the subject matter upon which professional legal advice is sought. Without examining the report, we are confident that this argument is unsupportable.
Turning to the arguments raised in Mr. Greene's initial denial, we find that on the scant information with which we have been provided, they, too, are unsupportable. In 92-ORD-1145, this office addressed the propriety of the Bullitt County Public School's denial of a request for the performance evaluation of the school superintendent. There we held that the public's interest in reviewing those portions of the evaluation which have a direct bearing on the management of the school system, and the progress of the school system generally, is superior to the reduced expectation of privacy in that document which a superintendent of public schools might have. We did, however, recognize that those portions of the evaluation which contain personal information, the release of which would serve no legitimate public interest, could be withheld.
Departing from earlier opinions, our decision in 92-ORD-1145 was premised on
Kentucky Board of Examiners of Psychologists v The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 325 (1992), in which the Kentucky Supreme Court observed:
Given the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
Board of Examiners , at 328. As we noted in that decision:
Those "antagonistic interests" are characterized as the public's interest in knowing whether its agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's or individuals' interest in the disclosure of records which touch upon the intimate or personal features of their lives. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Board of Examiners , at 328.
92-ORD-1145, p. 3.
Applying this analysis to the facts before us, we concluded:
Because the Superintendent is ultimately responsible for the management of the school system, his performance is of far greater interest to the public, and his expectation of privacy in the evaluation of that performance is correspondingly reduced. The same cannot be said of the other employees of a school system or any other public agency, since disclosure of their evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee. We continue to ascribe to the view that an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation. 5 Absent any proof to the contrary, we believe that the reasoning of this decision is applicable to the present appeal.
As president of Kentucky State University, Dr. Smith's expectation of personal privacy in records relating to her public performance is reduced. The public's interest in her performance as "captain of the ship" is heightened. Given that the open records statute "exhibits a general bias favoring disclosure, " Board of Examiners , at 327, and that KSU has failed to meet its statutory burden of proof by demonstrating that release of the outside consultant's report would constitute a clearly unwarranted invasion of Dr. Smith's personal privacy, we are left with no alternative but to conclude that the public's interest in monitoring the conduct of a public servant in the discharge of her public duties is superior to her reduced privacy interest.
Similarly, we are deprived of the ability to adequately address the applicability of KRS 61.878(1)(j) 6 to the outside consultant's report by virtue of the University's failure (or refusal) to disclose that record to us on the terms set forth in KRS 61.880(2)(c). In his original denial, Dr. Greene did not indicate to what use the consultant's report was to be put, or provide any explanation of its ultimate fate. Nor did he offer any explanation in response to our notification of receipt of appeal, or repeated oral entreaties. Although this office has recognized that a performance evaluation may be withheld pursuant to KRS 61.878(1)(j), unless it is adopted as part of the decision maker's final action and thus forfeits its preliminary characterization, we have not been advised how this matter was finally resolved. In the absence of any proof relative to the status of the outside consultant's report, we must conclude that it does not qualify for exclusion under KRS 61.878(1)(j).On facts similar to these, this office recently recognized:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception, [footnote omitted] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880 (2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial does not satisfy the burden of proof imposed on the agency. We have received no supporting documentation to confirm the assertion, nor have we been afforded access to . . . [the disputed record] which we specifically requested.
95-ORD-61, p. 5. Here, as in 95-ORD-61, we conclude that the public agency has not met its burden of proof in sustaining its action, and find in favor of Mr. Landrum.
We are also constrained to comment on the University's failure (or refusal) to furnish this office with a copy of the outside consultant's report on the terms set forth at KRS 61.080(2)(c) and 40 KAR 1:030(3). KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
40 KAR 1:030(3) also recognizes:
. . . 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies of the time the decision is rendered.
Thus, the General Assembly has twice vested the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review. Without this authority, the Attorney General's ability to render a reasoned open records decision would be severely impaired. The Attorney General recognizes that he is bound to observe the confidentiality of the records, and does not share Mr. Greene's apparent view that disclosure to this office pursuant to KRS 61.880(2)(c) constitutes waiver as to any legitimate privilege asserted. Because he does not have authority to compel disclosure of the disputed records, his only recourse is to find against the recalcitrant public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future. With these observations in mind, we find that Kentucky State University failed to meet its burden of proof in denying Mr. Landrum's request for the outside consultant's report on President Mary Smith's job performance, and is obligated to immediately release that document to him.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 In the same open records application, Mr. Landrum requested a copy of his PAF for 1979-1980. The University honored this portion of his application.
2 It is unclear whether he meant the Board meeting at which the report was discussed, or the Board meeting at which it was originally authorized.
3 KRS 61.878(1)(l) excludes from public access: Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
4 This office has also recognized that since 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), they are exempt from public inspection under KRS 447.154 and KRS 61.878(1)[(l)]. KRS 447.154 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. See, e.g., OAG 81-246; OAG 82-291; OAG 82-169; OAG 82-295; OAG 85-20; OAG 87-28; OAG 88-25; OAG 88-32; OAG 88-59; OAG 91-53; OAG 91-108; and OAG 92-14. The privilege also derives from the Rules of Professional Responsibility, Rule 1.6, and the common law.
5 Since 92-ORD-1145 was issued, we have repeatedly expressed our reluctance to extend its holding to lower level public officials. See, e.g., 94-ORD-54; 94-ORD-132.
6 That provision exempts from public inspection: Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.