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 City of Louisville properly relied on the existence of an investigation into an employee's eligibility for workers' compensation benefits, KRS 61.878(3), and the attorney-client privilege and work product doctrine, in denying David Leightty's February 10, 2000, request for records relating to the employee's workplace injury. Mr. Leightty is an attorney representing the employee, Mitchell Metzinger, in a grievance Mr. Metzinger filed against the City in January, 2000, for termination of workers' compensation benefits, refusal to pay sick leave, and denial of benefits under a long term disability insurance plan. Mr. Leightty also represents Mr. Metzinger in a lawsuit involving his injuries which is currently pending against Louisville Gas & Electric Company. The city in not a party to this action. For the reasons that follow, we find that the City of Louisville properly relied on the attorney-client privilege and work product doctrine to support nondisclosure of documents responsive to Mr. Leightty's request that directly relate to the anticipated litigation involving Mr. Metzinger's injuries and the termination of his workers' compensation benefits, and which satisfy each of the requirements of KRE 503, or can be characterized as "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative" of the city concerning the anticipated litigation. All other documents in the custody of the city that are responsive to Mr. Leightty's request must be released to him pursuant to KRS 61.878(3), these privileges notwithstanding.
On February 10, Mr. Leightty requested access to, among other documents:
All documents concerning the injury to Mitchell Metzinger, his subsequent health problems, his absences from and attendance at work following his injury, his medical expenses, his health insurance, his medical treatment, his workers compensation claim, and his long term disability claim (if any). This request includes correspondence and notes.
Acknowledging that his request was an extensive one, Mr. Leightty "agreed to extend the three-day time limit for initial response under the ORA to 20 days." In a response dated April 5, 2000, Assistant Director of Law Thomas Lukins denied Mr. Leightty's request for "certain notes and correspondence . . . on the basis that these documents concern an investigation into Mitchell Metzinger's eligibility for workers' compensation benefits, KRS 61.878(3), or are protected by the attorney-client privilege or attorney work product doctrine. " Mr. Lukins confirmed that he had previously furnished Mr. Leightty with documents that were responsive to other portions of his request, and was herewith providing him with a copy of Mr. Metzinger's personnel file. Mr. Lukins did not, however, further elaborate on the nature of the records withheld, or how KRS 61.878(3), the attorney-client privilege, or the work product doctrine apply to those records. This appeal followed.
On appeal, Mr. Leightty expresses the belief that "City officials have communicated in written notes, memos, e-mails, etc., regarding Mr. Mitchell's [sic] situation, and regarding the status of his benefits and his entitlement to them." He further opines that the city may have communicated in writing with LG&E, and that there may also be "notes regarding communications had by telephone or personal conversation." Mr. Leightty questions Mr. Lukin's assertion that the city is engaged in an ongoing investigation into Mr. Metzinger's claim. He notes that the injury occurred in May, 1998, and that the city terminated his workers' compensation benefits in August, 1999. It is his position that if, in fact, the city's investigation is ongoing, it is incumbent on the city to "give details about that investigation and identify the documents that are exempt because of the investigation."
Mr. Leightty also challenges the city's argument that the records withheld are protected from disclosure by the attorney-client privilege and work product doctrine. Noting that the city did not cite an exemption to the Open Records Act supporting nondisclosure on the basis of these privileges, Mr. Leightty maintains that "this is an effort to expand the very limited exemptions from disclosure set forth in subsection (3) beyond anything provided for in the statute." Continuing, he observed:
The failure to identify what documents and records are being withheld makes it impossible to determine whether these privileges would apply even if they were available to the City. Attorney/Client privilege covers only communications involving an attorney. It does not apply to communications involving a non-client, as when a third party is involved. The City's response does not indicate whether the records withheld concern only communications between attorney and client.
Similar problems would be true even if attorney work-product privilege were available to the City here. The privilege can apply only to certain documents created by or for an attorney in the course of or in anticipation of litigation. What documents are being withheld here? Are they the product of an attorney's work, in connection with litigation? Anything else could not be covered by the privilege, even if it applied here.
In closing, Mr. Leightty reiterates that the Open Records Act does not recognize these privileges as a basis for denying a public employee's access to records relating to him.
In a supplemental response directed to this office, Assistant Director of Law Stephanie Harris offered additional support for the city's position. She maintained that "some of the records requested by Mr. Metzinger are protected by the attorney/client privilege and the work product privilege. The records in question are correspondences [sic] between city attorneys and their clients and client representatives." Ms. Harris explained:
Litigation is anticipated when circumstances indicate that there may be a substantial chance of litigation and when a person has a good faith belief that litigation will ensue. The City terminated Mr. Metzinger's worker's compensation benefits and therefore, there is a substantial chance that Mr. Metzinger will file a worker's compensation claim against the City of Louisville. Because of the anticipation that this could result into litigation, the notes and correspondence between the city attorneys and their clients and client representatives are protected by the work product doctrine.
The City does not dispute that Mr. Metzinger is entitled to review records that relate to him as pursuant to KRS 61.878(3). However, the records in questions at the time of Mr. Leightty's request were records relating to a pending matter concerning the Mr. Metzinger's eligibility for workers compensation benefits. In addition to the pending matter regarding worker's compensation benefits, the City denied access on the basis of attorney/client privilege and work produce doctrine. It is the City's position that Mr. Metzinger is not entitled to review those records characterized as attorney/client privilege and attorney work product.
The General Assembly did not intend KRS 61.878(3) be used by employees to defeat the attorney/client privilege. Because an employee is the subject matter of several correspondences [sic] between the attorney and his clients and client representatives do not make these records disclosable under the Open Records Act. [Sic.] Pursuant to KRE 503, the records are protected by the attorney/client privilege and therefore are outside the purview of KRS 61.878(3).
Ms. Harris did not provide additional support for the city's earlier position that is investigation is ongoing. Nor did she identify with any greater specificity the identity of the records withheld or how the privileges relied upon apply to those records. For this reason, we find that the city's response was only partially consistent with the Open Records Act.
KRS 61.878(3) 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 construing KRS 61.878(3), the Attorney General has observed:
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.
97-ORD-87, p. 4 (emphasis added). As a public agency employee, Mr. Metzinger is endowed with a broader right of access to records relating to him 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 Mr. Metzinger if they relate to him.
As noted above, the "exception to the exceptions" recognizes 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. 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)). In 96-ORD-40 this office affirmed the Cabinet for Human Resources' denial of an employee's request for all records relating to the Cabinet investigation of the employee's compensatory time. Although the Cabinet opened its files to the employee, it withheld "communications between the Office of Counsel and the Office of Personnel and Budget or among counsel within the Office of Counsel and transcripts of interviews conducted by the Office of General Counsel relating to the review" on the basis of KRS 61.878(1)(l) and the doctrine of work product and attorney client privilege. We rejected the employee's argument that he was entitled to full access to these records under KRS 61.878(3), observing:
In seeking legal advice from Office of the Counsel, the Cabinet 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 the Cabinet 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 attempt was made to insure that the information contained therein was protected from general disclosure. The Cabinet 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, the Cabinet has affirmatively satisfied the third part of the test.
96-ORD-40, pp. 4, 5.
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[.]
With respect to 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.
In responding to Mr. Metzinger's request, the city has done little more than invoke the privilege. The city has offered virtually no proof that all of the responsive records 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 is sought, or were handled in a confidential manner, thus qualifying for exclusion as records protected by the attorney-client privilege. Nor has the city offered specific proof that that they consist of "the mental impressions, conclusions, opinions, or legal theory of an attorney or other representative" of the city concerning the anticipated litigation, thus qualifying for exclusion as attorney work product. In general, the city "paints with broad brush strokes and entirely omits the details." 98-ORD-124, p. 8.
In a decision issued to the City of Louisville earlier this year, the Attorney General held that the city improperly adopted a policy of blanket exclusion relative to the records identified in a request. It is instructive to quote from that decision:
In construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals has observed:
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). Amplifying on this view, the Attorney General has stated:
97-ORD-41, p. 6. In the cited decision, this office suggested, by way of example, that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal,' and deny access on the basis of KRS 61.878(1) (1) and KRE 503 as privileged lawyer client communication which was not disclosed to third persons." 97-ORD-41, footnote 2, p. 7.
In 95-ORD-61, the Attorney General further opined:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872 (6) and requiring clear and convincing evidence to support denials based on unreasonably burdensome requests,] 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. . . .
00-ORD-10, p. 12.
Here, as in 00-ORD-10, we find that the City of Louisville did not meet its statutory burden of proof in sustaining its denial of Mr. Leightty's request on the basis of the attorney-client privilege and work product doctrine. See also 98-ORD-124. Again, we find that the city did not identify the documents, or groups of documents, withheld, or adequately explain how the privileges apply to those records. By the same token, we conclude here, as we concluded in 00-ORD-10, that the city's reliance on the privileges may not have been entirely misplaced, only that it failed to provide sufficiently detailed information in response to Mr. Leightty's request. We therefore find that although the city may properly withhold those records which are privileged, it is obligated to disclose any nonexempt records that are responsive to Mr. Leightty's request, and to clearly identify the records withheld and articulate the reasons for withholding those remaining responsive records in terms of the requirements of the privileges.
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.