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 Kentucky Association of Counties/Workers Compensation Fund violated the Open Records Act in responding to D. Christy Durham's November 13, 1998, request for various records relating to KACo/WCF. For the reasons that follow, we find that KACo/WCF improperly denied Ms. Durham's request.
Ms. Durham, a paralegal in the law firm of Woodward, Hobson & Fulton, requested access to financial and operational records of KACo/WCF, including minutes of its meetings, administrative or services contracts, financial statements, and interim financial statements from January 1, 1997, to the present. In addition, she requested access to "the legal audit as mentioned in the attached letter of December 18, 1997 to Mr. Phil Williams from Mr. Joseph Meyer." In a response dated November 19, 1998, and directed to Elizabeth Ullmer Mendel, Joseph Meyer, KACo's general counsel, denied the request, explaining:
The open records law is not available as a means of discovery for parties involved in litigation. It is also generally considered unethical for an attorney to contact directly an opposing party represented by counsel. You represent Mr. Phil Williams, et al., in their litigation with the KACo Workers Compensation program. Moreover on February 23, 1998, we replied to your earlier open records request that use of the open records act in lieu of discovery was inappropriate.
The Kentucky Association of Counties Workers Compensation Fund is represented by Mr. Charles English of English, Lucas Priest & Owsley of Bowling Green, Kentucky. I believe you have his address and telephone number.
The KACo Workers Compensation program denies your open records request in toto.
Several months later, Ms. Mendel initiated this appeal.
Upon receipt of this office's notification of appeal, KACo/WCF submitted a supplemental response through its attorney, David W. Anderson. Mr. Anderson advised the Attorney General:
Our firm represents KACo/WCF in a lawsuit presently pending in the Jefferson Circuit Court styled Governmental Services, Inc. and Robert F. Hart, Jr. vs. Kentucky Association of Counties Workers' Compensation Self-insurance Fund vs. Williams & Wagoner, a Law Firm Partnership Comprised of Phil Williams, James R. Wagoner, W. Kenneth Nevitt, C. Thomas Hectus, Caroll Heller Pearlman, L. J. Hollenbach IV, Dennis Lee Mattingly, and Carla Foreman Dallas , Civil Action No. 97-CI-06645, Jefferson Circuit Court Division 5.
In addition, our firm represents the Kentucky Association of Counties All Lines Fund (KALF) in a lawsuit presently pending in the Jefferson Circuit Court styled Governmental Services, Inc., et al. and Williams & Wagoner, a Law Firm Partnership Comprised of Phil Williams, James R. Wagoner, W. Kenneth Nevitt, C. Thomas Hectus, Caroll Heller Pearlman, L. J. Hollenbach IV, Dennis Lee Mattingly, and Carla Foreman Dallas , Civil Action No. 97-CI-01262, Jefferson Circuit Court, Division Five.
These two cases have been consolidated for purposes of discovery. Claims have been asserted by Williams & Wagoner against KALF and KACo/WCF, respectively and KALF and KACo/WCF have asserted claims against Williams and Wagoner. Civil Action No. 97-CI-01262 is set for trial in July of 1999. Civil Action No. 97-CI-06645 has not yet been set for trial, although discovery is presently proceeding.
All of the items requested in Ms. Durham's letter dated November 13, 1998 relate to the lawsuits currently pending. The first three items requested relate to the activities of KACo/WCF since Phil Williams of Williams & Wagoner ceased providing legal advice to KACo/WCF. Although we were not favored with a copy of the letter of December 18, 1997 to Phil Williams from Joe Meyer which was attached to the original open records request, the only legal audit we are aware of is one performed by a legal auditing firm in connection with the pending litigation. Thus, it is clear that the Open Records Request sought information as a means of discovery in pending litigation.
Relying on Department of Corrections v. Courier-Journal and Louisville Times, Ky.App., 914 S.W.2d 349 (1996) and Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993), Mr. Anderson argued that "there is an exception to the Open Records Law exempting inspection by a party of any materials pertaining to civil litigation. " Because Ms. Mendel represents Williams & Wagoner in the pending civil litigation, he concluded, she is foreclosed from using the Open Records Act "as a means of obtaining discovery in" that litigation. Mr. Anderson also questioned the timeliness of Ms. Mendel's appeal, noting that four months have elapsed since this dispute arose. We do not find any of these arguments persuasive.
Without directly referencing the provision, KACo/WCF invokes KRS 61.878(1) as the statutory basis for its view that its duties under the Open Records Act are suspended in the presence of litigation. That statute provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery [.]
(Emphasis added.) The Attorney General has consistently rejected the argument advanced by KACo/WCF.
In 98-ORD-39, the Attorney General was called upon to construe KRS 61.878(1) in the context of a public agency's denial of a records request submitted by a party to litigation with the agency. In that decision, we held that "although the Attorney General has discouraged the use of the Open Records Act as a substitute for discovery, we are bound to follow the line of opinions issued by this office from 1982 to the present holding that the presence of litigation between the requester and the public agency does not suspend the agency's duties under the Act." 98-ORD-39, p. 2. We traced the evolution of this proposition, factoring in legislative amendments to, and judicial interpretations of, the Open Records Act. Thus, at pages 2 through 4 of 98-ORD-39, we observed:
In OAG 82-169, this office considered the propriety of the Jefferson County Public Schools' denial of attorney John W. Potter's open records request on the grounds that the school system was involved in litigation and the records would not be discoverable under the civil rules. At page 2, we rejected the school system's argument, commenting:
Elaborating on this view, in a subsequent opinion the Attorney General observed:
OAG 89-53, p. 4. Shortly after OAG 89-53 was issued, we confirmed our position, asserting:
With particular reference to KRS 61.878(1), upon which KACo/WCF apparently relies, the Attorney General has construed this provision to mean that:
should an agency deny a request, submitted by a party to a civil action , for properly excludable public records which are related to the 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. . . . It does not . . . alter our view that an agency's duty under the Act is not suspended in the presence of litigation.
95-ORD-18, p. 4. Prior to the issuance of this decision, the Attorney General had held that KRS 61.878(1) could not be invoked by a public agency to deny nonlitigants access to public records which relate to a pending civil action. 94-ORD-19. It was this decision that the Court of Appeals affirmed in Department of Corrections v. Courier-Journal and Louisville Times , above, a case which, contrary to KACo/WCF's view, does not stand for the proposition that "there is an exception to the Open Records Law exempting inspection by a party of any materials pertaining to civil litigation. " 1 In subsequent open records decisions, the Attorney General confirmed that KRS 61.878(1) does not prohibit access by a party litigant to nonprivileged, nonexempt public records in the custody of a public agency against which the litigant had brought suit or by which he had been sued. 95-ORD-18; 96-ORD-138; 98-ORD-39; 98-ORD-87. Only if the records to which the party litigant requests access are both exempt and nondiscoverable does KRS 61.878(1)authorize nondisclosure. Compare 98-ORD-15 (records requested by party litigant which pertain to pending litigation, and fall within the attorney client privilege, may be withheld under KRS 61.878(1) because they are protected from pretrial discovery by the Rules of Civil Procedure) .
The records identified in Ms. Durham's November 13 request are neither nondiscoverable nor exempt. With the exception of the legal audit referred to in Joseph Meyer's December 18, 1997, letter to Phil Williams, which was "performed by a legal auditing firm in connection with the pending litigation" and which may therefore qualify for exclusion as a nondiscoverable document, they are financial and operational records of KACo/WCF which are nonexempt. Such records are generally characterized as being "uniquely of public concern." OAG 90-30, p. 3. For this reason, we find that KACo/WCF is obligated to immediately disclose the records to Ms. Durham. Access to the "legal audit" may only be denied if KACo/WCF can articulate a basis for denial in terms of the requirements of the statute.
In closing, we briefly comment on the other issues which KACo/WCF raises. With respect to the alleged ethical impropriety of Ms. Durham's communication with an opposing party represented by counsel on an open records matter, we refer KACo/WCF to 97-ORD-98. At pages 5 and 6 of that decision, the Attorney General stated:
Supreme Court Rule 3.130, Rule 4.2, . . . provides:
In 97-ORD-71 we held that the fact that the requester was an attorney representing a party who was engaged in litigation with the agency which was the subject of his open records request did not relieve the agency of its duty to respond, or compel the requester to address his request to the agency's attorney, Rule 4.2 notwithstanding.
Although there are no Kentucky cases on point, this position finds support in a New York case, Fusco v City of Albany, 134 Misc. 2d 98, 509 N.Y.S.2d 763 (Sup. 1986). Faced with the same question, and construing a nearly identical rule of professional conduct, the New York Supreme Court held that the contention that the rule "prohibits an attorney for a litigant suing a governmental body from communicating with employees of that governmental body for the purpose of examining public records under the Freedom of Information Law" was erroneous. Id. at 766. The court noted:
The key language is that permitting an attorney to directly contact an adverse party when "authorized by law to do so." The Freedom of Information Law is a law authorizing such direct contact without the prior consent of the government's lawyer. Any other construction would thwart the legislative intent behind FOIL. . . .
Id. Kentucky's Rule of Professional Conduct contains the same key language. In our view, the logic of Fusco v City of Albany can be extended to the present appeal.
We find no impediment to direct communication between employees of KACo/WCF, KACo/WCF's attorney, and Ms. Durham relative to her open records request.
Finally, we reject KACo/WCF's argument that Ms. Mendel's appeal is untimely. On this point, we refer the parties to 99-ORD-56 in which this office held:
Unlike KRS 61.846(2), relating to open meetings complaints and requiring the complaining party to initiate his appeal to the Attorney General within sixty days of receipt of the public agency's response to the party's complaint, the Open Records Act contains no statutory bar to the commencement of an appeal to the Attorney General. We therefore reject this argument as a basis for refusing to adjudicate an appeal under KRS 61.880(2).
Here, as in 99-ORD-56, we conclude that the open records appeal is not time barred.
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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