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 Revenue Cabinet properly relied on KRS 61.878(1)(l), KRE 503, and CR 26.02(3) in partially denying Timothy J. Eifler's September 18, 1998, request for a copy of the Cabinet's "Standard Policies and Procedures Manual. " For the reasons that follow, we find that the Cabinet has offered insufficient proof to support its claim that those portions of the manual which it withheld qualify for exclusion under the cited exception, and is therefore obligated to make full disclosure.
In responding to Mr. Eifler's request, the Cabinet refused to release portions of Section 5, Section 6, and Section 11. The Cabinet also refused to release Sections 12 and 13, in their entirety, explaining:
Sections 12 and 13 entitled Property Tax Administration and Criminal Investigation do not contain any procedures. Therefore, they do not exist. OAGs 92-25, 91-220 and 91-101.
With respect to those sections of the manual to which partial access was denied, the Cabinet advised:
In section 5 entitled Security, the Cabinet is denying sections 5.4, 5.6, and 5.7 pursuant to KRS 61.870(3) [sic] because these sections discuss Cabinet security measures.
In section 6 entitled Program Management, the Cabinet is denying section 6.1 because it discusses management objectives of the Cabinet for the year.
In section 11 entitled Tax Administration, the Cabinet is denying sections 11.1, 11.2, 11.5, 11.6, 11.7, 11.8, and 11.11 because they discuss how the Cabinet handles these particular situations.
It is the Cabinet's position that KRE 503 and CR 26.02(3), which recognize the attorney-client privilege and the work product doctrine, are incorporated into the Open Records Act by KRS 61.878(1)(l), authorizing public agencies to withhold records made confidential by enactment of the General Assembly. "The documents not furnished in the legal section," the Cabinet argued, "concern how the attorneys provide legal services to their client, the Revenue Cabinet." On the record before us, we are unable to affirm the Cabinet's position. 1
In a recent decision, this office addressed a similar claim of attorney-client privilege and work product protection in the context of the Revenue Cabinet's denial of an open records request. At pages 5 through 7 of 98-ORD-124, we discussed the scope and application of the attorney-client privilege in relation to a request for records under the Open Records Act:
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 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:
The privilege thus consists of three elements: The relationship of attorney and client, a communication by or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the communication for which the protection is claimed. R. Lawson, Kentucky Evidence Law Handbook § 5.10 at 232, 233 (1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989); United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). Its purpose is to insure that client confidences to an attorney are protected, thereby encouraging clients to freely communicate with their attorneys. 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.
Rejecting the Cabinet's claim that the records withheld were protected from disclosure by the attorney-client privilege and work product doctrine, we held:
In responding to [the] request, the Revenue Cabinet has done little more than cite the relevant exception to public inspection and reference three opinions of this office which arguably support its view. The Cabinet has offered virtually no proof that all of the records identified in [the] request were generated in the course of the attorney-client relationship, represent a communication by or to the client relating to the subject matter upon which professional advice was sought, or were handled in a confidential manner, thus qualifying for exclusion as records protected by the attorney-client privilege, or that they consist of "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative" of the Cabinet . . ., thus qualifying for exclusion as attorney work product.
98-ORD-124, p. 7, 8. We contrasted the Cabinet's actions with those of the Cabinet for Human Resources in 96-ORD-40. In the latter decision, this office affirmed CHR's denial of "communications between the Office of Counsel and the Office of Personnel and Budget or among counsel within the Office of Counsel" on the basis of KRS 61.878(1)(l) and the attorney-client privilege and work product doctrine. We reasoned:
It is clear that an agency can be a "client" and agency lawyers can function as "attorneys" within the relationship contemplated by the privilege. 94-ORD-99. In seeking legal advice from Office of the Counsel, [CHR] dealt with its attorneys as would any private party seeking counsel. To insure full and frank communication, the same assurance of confidentiality was necessary. Moreover, the attorney-client privilege has pervasive application, extending to legal matters of all types (civil and criminal) and not just to matters related to litigation. Kentucky Evidence Law Handbook , § 5.10 at 231. Clearly, the documents withheld were drafted and exchanged in the course of this attorney-client relationship in order to provide [CHR] with advice on the legal considerations and ramifications of its actions, thus satisfying the first and second parts of the three part test.
It is equally clear that confidentiality was expected in the handling of these documents, and that an attempt was made to insure that the information contained therein was protected from general disclosure. [CHR] has continually maintained and asserted the attorney-client privilege with respect to these documents. It continues to do so up to the present. In our view, [CHR] has affirmatively satisfied the third part of the test.
96-ORD-40, p. 5.
There is no evidence before us that all or any portion of the Revenue Cabinet's policies and procedures manual was prepared in the course of the attorney-client relationship, represents a communication by or to the client on the subject matter for which professional advice was sought, or has been handled in a confidential manner. Nor is there any evidence in the record to support the claim that the manual, or portions of it, was "prepared in anticipation of litigation" and represents "the mental impressions, conclusions, opinions, or legal theories of an attorney . . . concerning the litigation." CR 26.02(3); compare 98-ORD-156. In our view, it strains credulity to suggest that the purposes for which the privilege exists and the doctrine was created will be served by nondisclosure of a manual which has apparently been disseminated to all 1,200 Cabinet employees and contains general guidelines on a "multitude of tax administration related processes," none of which are "taxpayer specific." Given the admonition that privilege "must be strictly construed and given no greater application than is necessary to further [their] objectives," Kentucky Evidence Law Handbook , § 5.10 at 232, we conclude that the Revenue Cabinet's reliance on them in this context is misplaced.
We do not share the Cabinet's view that disclosure of these records will not further the goal of governmental accountability. The Cabinet argues that the manual describes its internal operations, and that their disclosure will somehow compromise the Cabinet in the discharge of its official functions. The Cabinet give us no insight into how disclosure will compromise its operations. In reviewing the disputed records, we have uncovered nothing of a particularly sensitive nature. It seems to us far more likely that disclosure will "further the citizens' right to know what their government is doing" and what policies and procedures govern the Cabinet's conduct. Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 829 (1994). The Revenue Cabinet having articulated no legally supportable basis for its partial denial of Mr. Eifler's request, we find that the Cabinet violated the Act in withholding portions of its "Standard Policies and Procedures Manual, " and that it must furnish him with copies of the portions withheld upon prepayment of a reasonable copying charge.
We further find that the Cabinet's response relative to Sections 12 and 13 of the manual was nonresponsive. Mr. Eifler requested a copy of the policies and procedures manual, without restricting his request to those sections of the manual containing procedures. The fact that sections 12 and 13 are devoid of procedures does not render them nonexistent. Again, the Cabinet fails to advance any reasonable argument in support of its denial, and must therefore furnish Mr. Eifler with a complete copy forthwith.
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.
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