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 Department of Corrections properly relied on the work product doctrine in denying John Frith Stewart's August 5, 1998, request for the "results of [the] 'Smoke Test' which was conducted on August 1, 1998, at the print shop at the [Luther Luckett Education Center] and any other documents . . . regarding the fume problem at this facility." Mr. Stewart represents Marjorie Harper, an employee at the Education Center, who maintains that her "ongoing critical medical condition . . . [is] related to her employment." It is his position that she is entitled to receive a copy of the results of the smoke test, pursuant to KRS 61.878(3), because it relates to her medical condition. For the reasons that follow, we find that the Department's response was only partially consistent with the Open Records Act. Although the Department properly withheld that portion of the consultant's report containing the results of the smoke test which was designated "Conclusions and Recommendations, " it improperly withheld the factual "Background" and Observations" portions of the report. We also note a number of procedural irregularities in the Department's response.
On behalf of the Department of Corrections, staff attorney Tamela Biggs responded to Mr. Stewart's request on August 14, 1998, advising him that the smoke test at Luther Luckett Correctional Center was conducted "in anticipation of litigation. " Relying on KRS 61.878(1)(h) and OAG 92-92, the Department argued that "substantive matters, which are protected by the attorney/client privilege, may be withheld. "
In a follow-up letter to this office, Ms. Biggs elaborated on the Department's position. She confirmed that the smoke test "was conducted with the advice and consent of the Office of General Counsel in anticipation of litigation against the Department by Mr. Stewart who has indicated that he represents an injured party. " Modifying the Department's earlier argument, Ms. Biggs asserted that the test results constitute work product, and thus may properly be withheld. In support, she cited CR 26.02(3)(a),
Transit Authority of River City v. Vinson, Ky.App., 703 S.W.2d 482 (1985), and
Hickman v. Taylor, 67 S. Ct. 385, 329 US 495, 91 LEd 451 (1947). While we agree with the Department of Corrections that portions of the consultant's report on the smoke test are shielded from disclosure by the work product doctrine, as incorporated into the Open Records Law by operation of KRS 61.878(1)(l), KRS 447.154, and CR 26.02(3), we are not persuaded that the entire document is exempt.
In 95-ORD-18, the Attorney General reaffirmed the long-standing rule that "the work product doctrine protects from discovery, and access under the Open Records Act, materials prepared or collected by an attorney in the course of preparation for litigation." 95-ORD-18, p. 9. We referred to an early opinion in which this office observed:
The "work product" of attorneys is not discoverable under the court rules except in unusual cases which depend upon the nature of the document, the extent to which it may directly or indirectly reveal the attorney's mental processes, the likely reliability of its reflection on witness statements, the degree of danger that it will convert the attorney from advocate to witness, and the degree of availability of the information from other sources.
OAG 81-291, p. 3. See also, OAG 82-169, p. 4 (holding that the "work product privilege is a judicially created qualified privilege . . . [which] protects from discovery the attorney's work product to the extent that it was prepared in anticipation of litigation or trial"). This doctrine, authority for which is derived from KRS 447.154, is formally recognized at CR 26.02(3) and incorporated into the Open Records Act by KRS 61.878(1)(l). The latter provision 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." At KRS 447.154, the General Assembly recognizes "the power of the Court of Justice to make rules governing practice and procedure in the courts," declaring that no statute shall "be construed to limit in any manner, that power." The Court has affirmatively exercised this authority by promulgating CR 26.02(3), which provides:
(a) Subject to the provisions of paragraph (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case, and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
The mandatory disclosure provisions of the Open Records Act thus cannot be construed to limit the power of the court to protect "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party" concerning the anticipated litigation.
This is true notwithstanding the existence of KRS 61.878(3), upon which Mr. Stewart relies. That statutes provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In a recent decision, this office was confronted with a similar appeal involving an agency's denial of a public employee's request for records relating to the employee on the basis of KRS 422A.0503, the attorney client privilege. With reference to KRS 61.878(3), we commented:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible [s] on a register." When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
[A] public agency employee . . . is endowed with a broader right of access to records relating to her than the public's general right of access to those records. Records which would otherwise be shielded from disclosure as an unwarranted invasion of personal privacy (KRS 61.878(1)(a)), or as preliminary drafts or notes (KRS 61.878(1)(i)), or preliminary recommendations or memoranda in which opinions are expressed (KRS 61.878(1)(j)), as to third persons, must be made available to [the employee] if they relate to her.
As noted above, the "exception to the exceptions" admits of four exceptions. A public agency employee is not entitled to inspect any examination or any documents relating to ongoing criminal or administrative investigations by an agency. [Footnote omitted.] Nor is the employee entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)) or records or information made confidential by enactment of the General Assembly (KRS 61.878(1)(l)).
98-ORD-124, pp. 4, 5. Just as in 98-ORD-124, KRS 422A.0503 barred a public employee's access to records relating to her, so, in the appeal before us, CR 26.02(3), operating in tandem with KRS 447.154 and KRS 61.878(1)(l), bar Ms. Harper's access to records which relate to her. 1 See also, 98-ORD-149 (holding that Office of Education Accountability properly denied a teacher's request for records relating to her on the basis of KRS 7.410(3) and KRS 61.878(1)(l).
Pursuant to KRS 61.880(2)(c), we have examined the consultant's report which gives rise to this appeal. Although we cannot disclose its contents, we note that it was prepared at the behest of the Department of Corrections by an environmental consulting firm based on observations made in the course of the smoke test conducted by Department personnel. The Department maintains that the report contains the results of a test undertaken in anticipation of litigation, and thus constitutes work product. 2 Our review of the document supports this view only in part. The report is divided into three parts: "Background," "Observations," and "Conciusions and Recommendations. " The "Background" and "Observations" portions of the report contain a narrative of the events leading up to, and the events that took place during, the smoke test. They do not contain the consultant's "mental impressions, conclusions, opinions, and legal theories. " As in Vinson , above, at 486, "that material simply documents certain events which occurred" in advance of and during the smoke test. "Work product which is primarily factual in nature is not absolutely immune form discovery under the rule." Id. These two parts of the consultant's report do not, in our view, enjoy the protection of CR 26.02(3)(a). Conversely, that portion of the report entitled "Conclusions and Recommendations" may be properly characterized as work product. It consists of the conclusions and opinions of the consultant based on his observations before and after the smoke test, and must be accorded protection from disclosure under CR 26.02(3)(a). We thus conclude that the Department of Corrections "seeks to stretch the work product protection of CR 26.02(3)(a) far beyond its limits," Id. at 485, and that it must disclose the "Background" and "Observations" portions of the report. With respect to the "Conclusions and Recommendations" portion of the report, we conclude that the Department properly relied on CR 26.02(3)(a) to authorize nondisclosure. 3
Turning to the procedural irregularities in its response, we find that the Department of Corrections violated the Open Records Act in failing to respond to Mr. Stewart's request in a manner consistent with KRS 61.880(1). That statute contains procedural guidelines for agency response to an open records request. KRS 61.880(1) 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.
Mr. Stewart's request was submitted on August 5, 1998, and the Department's response was issued on August 14. Thus, some seven business days elapsed between the date on which he made his request and the date on which the Department responded. Since July 15 of this year, the Department's response time has been governed by KRS 197.025(7), which extends its deadline from three business days to five business days. The Department's apparent noncompliance here may have been occasioned by delays in mailing, and we therefore find no procedural error. For purposes of future appeals, however, we urge the Department to explain any such disparities to insure that this office does not improperly assess fault.
The Department's response was deficient in two material respects. The response did not identify the specific exception authorizing the withholding of the consultant's report, and did not adequately apprise Mr. Stewart whether any other documents regarding the fume problem at Luther Luckett Correctional Complex exist.
With respect to the first of these defects, we note that in its original response, the Department invoked KRS 61.878(1)(h) without explanation, and in our view, without proper legal grounds. The invocation of this exception to authorize nondisclosure of records relating to pending civil litigation was firmly rejected in OAG 92-116 (holding that Justice Cabinet improperly relied on KRS 61.878(1)(h) in withholding records pertaining to litigation against Cabinet personnel on an issue unrelated to law enforcement) and in OAG 92-92 (holding that City of Louisville improperly withheld billing statements and invoices generated in the course of civil litigation on the basis of KRS 61.878(1)(h)). See also,
University of Kentucky v. Courier-Journal and Louisville Times, Ky., 830 S.W.2d 373 (1992) (holding that KRS 61.878(1)(h) was inapplicable to the University in the context of a request for records generated in the course of an NCAA investigation). In its supplemental response, the Department cited no exception. While it is clear that KRS 61.878(1)(l), incorporating KRS 447.154 and CR 26.02(3), provides an adequate legal basis for the Department of Correction's decision, we remind the Department that "the language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). The Department should bear these observations in mind in formulating future open records responses.
With respect to the second procedural defect, we find that the Department erred in failing to advise Mr. Stewart whether records that are responsive to his request for "any other documents that you may have in your possession regarding the fume problem at [the] facility" exist, and if so, on what basis those records were withheld. This office recently engaged in a lengthy analysis of how specific a public agency must be in denying the existence of records identified in an open records request. In 98-ORD-154, a copy of which is attached hereto and incorporated by reference, we held that although an agency is not required to give an unequivocal response to a nonspecific "any-and-all-records-that-relate type of request," it is legally obligated to issue a general denial if, in fact, no records exist which are responsive. We believe that 98-ORD-154, and in particular, the discussion at pages two through four, is controlling, and that the Department must furnish Mr. Stewart with a response to this portion of his request in a manner consistent with the principles set forth in that decision.
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 our view, it is questionable whether this report can properly be characterized as a record that relates to Ms. Harper within the meaning of KRS 61.878(3). Although the Department of Corrections acknowledges that the smoke test was conducted "in anticipation of litigation against the Department by Mr. Stewart who has indicated that he represents an injured party, " the report does not refer to Ms. Harper by name or relate to her directly. Assuming, for the sake of argument, that it is a record which relates to Ms. Harper, we believe that the cited authorities are controlling, and that she is foreclosed from obtaining an unredacted copy of it by KRS 61.878(1)(l), KRS 447.154, and CR 26.02(3).
2 The consulting firm retained by the Department clearly qualifies as a representative within the meaning of CR 26.02(3). As the Kentucky Court of Appeals noted in Transit Authority of River City [TARC] v. Vinson, Ky.App., 703 S.W.2d 482, (1985), "The policy of protecting counsel's work product prior to litigation applies with equal force to the work product of the party's other representatives. . . ." Citing United States v. Nobles, 422 US 225, 95 S. Ct. 2160, 45 LEd. 2d 141 (1975).
3 It is beyond the scope of this office's authority under KRS 61.880(2) to determine whether a showing of substantial need to overcome the CR 26.02(3) protection has been made by the requester. Rather, it is for the courts to make this determination in the course of discovery.