Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(l), which incorporates the attorney-client privilege, codified at KRE 503, into the Open Records Act, and KRS 61.878(1) in partially denying J. Robert Cowan's December 17, 1997, request to inspect various records pertaining to Clark v. LFUCG, et al. , Civil Action 96-CI-1037. Mr. Cowan is an attorney representing the plaintiff in this action. In addition, this appeal presents the issue of the timeliness of LFUCG's response to Mr. Cowan's request. For the reasons which follow, we conclude that LFUCG's response was not timely, but that its actions were in all other respects consistent with the Open Records Act.
On December 17, Mr. Cowan requested access to:
1. All documents of any type relating to the allegations contained in the Civil Service "Charges" preferred against Mr. Robert M. Clark by the Lexington-Fayette Urban County Government.
2. The results of any investigation relative to the charges, including all statements and other documents gathered by Hon. Robert Roark, and
3. The names of all persons examined or scheduled to be examined in connection with the investigation of Mr. Clark and any anticipated hearing of the Charges.
On December 31, Theresa L. Holmes, corporate counsel for the Lexington-Fayette Urban County Government, responded to Mr. Cowan's request. Ms. Holmes agreed to release all of the records identified in the request except for "statements and other documents gathered by Hon. Robert Roark." Mr. Roark is a private attorney representing the Urban County Government in Clark v. LFUCG . Relying on KRS 61.878(1) and 61.878(1)(l), Ms. Holmes indicated that "because review of the documents . . . [was] not allowed by the Court in this matter, [Mr. Clark's] request to review the records under the Open Records Act must be denied."
In a follow-up letter to this office, Ms. Holmes acknowledged that the Urban County Government failed to respond within the three days required by the Act, but explained that this delinquency resulted from a miscommunication with Mr. Roark. Mr. Roark believed that Ms. Holmes had answered the request, and Ms. Holmes believed Mr. Roark had answered the request. When she learned that no response had been issued, Ms. Holmes immediately responded on behalf of the Urban County Government.
The Open Records Act requires at KRS 61.880(1), that within three business days of receipt of a request for records, a public agency must issue written notification of its decision to honor or deny that request. The Urban County Government is well-aware of this duty under the law, and has consistently discharged it in an appropriate matter. We therefore find that although its response to Mr. Cowan's request was procedurally deficient, this deficiency is mitigated by the Urban County Government's admission of error and its attempts to take prompt remedial action.
Because the Urban County Government ultimately denied a portion of Mr. Cowan's request, our analysis does not end here. We must also determine if its denial of Mr. Cowan's request for statements and documents compiled by private counsel is supported by the law. We find that it is, and affirm the Urban County Government's partial denial of this request.
In 96-ORD-138 we addressed a similar issue, albeit with a different outcome. At page 3 of that decision, we observed:
This office has long recognized that:
OAG 89-65, p. 3. However, we noted that in making such observation, we did not intend to:
Id. Thus, this office has recognized the potential pitfalls of using the Open Records Act as a discovery tool.
Subsequent to the issuance of this opinion, the Open Records Act was amended. KRS 61.878(1), which codifies the exceptions to public inspection, now provides:
In defining public records to exclude those that would be within the scope of a privilege against discovery in a civil action, the General Assembly has also indirectly confirmed that a public agency's duty under the Open Records Act is not suspended in the presence of litigation.
We therefore see no impediment to the use of the Open Records Act to secure nonexempt public records despite the presence of litigation. Recognizing that there are limitations inherent in obtaining records through this mechanism, when those records are to be used in litigation, we have nevertheless observed:
OAG 82-169, p. 2.
In 96-ORD-138, from which we have quoted extensively, we ultimately concluded that the public agency improperly denied the requester, an attorney representing an individual who had sued the agency, access to nonprivileged, nonexempt public records despite the presence of litigation.
This decision is distinguishable from the appeal before us in one significant respect. The records to which the Urban County Government denies Mr. Cowan access are both exempt and nondiscoverable. In 96-ORD-138, the Attorney General admonished that pursuant to KRS 61.878(1) the requester was not entitled to review "materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discover." KRS 61.878(1). Elaborating on our interpretation of this provision, we reasoned:
This means that should an agency deny a request, submitted by a party to a civil action , for properly excludable public records which are related to that action, and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/ party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion.
96-ORD-138, p. 4 citing 95-ORD-18, p. 4 (emphasis in original). This is precisely the type of records which Mr. Cowan seeks and to which the Urban County Government denied him access. Because the records are protected by the attorney-client privilege, they may properly be withheld.
KRS 61.878(1)(l) 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 KRE 503 to exclude from public inspection public records protected by the attorney-client privilege.
Prior to enactment of KRE 503, the Attorney General recognized that records which are privileged, or which represent the work product of an attorney generated in the course of defending or prosecuting a case, are not discoverable under CR 26.02(1) and (3), and are therefore exempt from public inspection under KRS 61.878(1)(l) and KRS 447.154. The latter provision states that no act of the General Assembly may be construed to limit the right of the Court of Justice to promulgate rules. Under this line of reasoning, court rules, such as CR 26.02, have the force of law, and records which are beyond the reach of discovery are also exempt pursuant to KRS 61.878(1)(l). See, e.g., OAG 81-246; OAG 82-169; OAG 85-20; OAG 87-28; OAG 88-25; OAG 91-53; OAG 92-14. Long before the enactment of KRE 503(b), the Attorney General recognized the existence of the privilege as a basis for denying access to public records under the Open Records Act.
KRE 503(b) codifies the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communications made for the purpose of facilitating the rendition of professional legal services to the client[.]
In analyzing the privilege, the Attorney General has observed:
The privilege . . . 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 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.
94-ORD-88, p. 4. Continuing, we noted that "an agency can be a 'client' and agency lawyers can function as 'attorneys' within the relationship contemplated by the privilege." Id.
The Urban County Government is represented by Mr. Roark in the civil action initiated by Mr. Cowan's client. The communications and documents for which the Urban County Government asserts the privilege relate to the subject matter upon which his professional representation was sought. The Urban County Government has sought to maintain the confidentiality of these communications, and has successfully resisted Mr. Cowan's attempts to gain access to them through the mechanism of discovery in the courts. The Urban County Government has affirmatively established each of the elements of the privilege. We therefore find that its partial denial of Mr. Cowan's request was, in all material respects, consistent with the Open Records Act.
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.