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 Education Professional Standards Board violated the Open Records Act in the disposition of attorney David Leightty's September 18, 2001 request for records pertaining to his client, Nancy A. Evans. An employee of the EPSB, Ms. Evans received notice of termination, effective September 30, 2001, and thereafter initiated an appeal. The EPSB responded to Mr. Leightty's request by releasing "the entire contents of Nancy Evans' agency personnel file, a few pieces of correspondence . . . kept in a supervisor's file, and various emails sent by and received by [director of legal services and general counsel, Allison C. Weber.]" The EPSB elected to withhold "correspondence . . . exchanged in the course of an attorney-client relationship in order to obtain and provide legal advice on the legal considerations and ramification of [the EPSB's] actions in relation to Ms. Evans' employment." It is from this partial denial of his request that Mr. Leightty appeals, arguing that EPSB "asserts privilege without adequate explanation or justification, and . . . fails to reflect a proper inquiry regarding the existence of requested documents." While we do not agree with the latter argument, the record before us demonstrating that the EPSB made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the requested records," 95-ORD-96, p. 5, we concur with Mr. Leightty in the view that the EPSB did not meet its statutory burden of proof in sustaining the partial denial of his request on the basis of the attorney client privilege and work product doctrine.
In a letter dated September 18, Mr. Leightty requested access to:
Any and all records constituting, recording, or reflecting communications made sent, heard, or read by any staff, officer, or member of the Education Profession Standards Board concerning Nancy A. Evans, or any aspect of her job performance from April 1, 2001 to September 17, 2001. This shall include all emails and electronic or computer records, including those that have been "deleted" but are still recoverable, as well as all written or paper documents. In responding to this request, you may exclude payroll time sheets unless such payroll sheets contain data pertaining to her job performance as distinct from hours worked and leave taken.
On September 21, Ms. Weber partially denied Mr. Leightty's request, advising him:
I have not disclosed those documents that are subject to the attorney-client privilege and work product doctrine. Specifically, I have been engaged in correspondence with the general counsel of the Personnel Cabinet and the executive director of the Education Professional Standards Board since 7 August. This correspondence has been exchanged in the course of an attorney-client relationship in order to obtain and provide advice on the legal considerations and ramifications of this agency's actions in relation to Ms. Evans' employment. As set forth in KRS 61.878(3), a public agency employee shall not have the right to inspect or to copy any documents relating to ongoing criminal or administrative investigations by an agency. As you have mentioned to our executive director, litigation may in fact be anticipated. Accordingly, I believe that the requirements of KRE 503 and the conditions mentioned in KRS 61.878(3) have been met.
Shortly thereafter, Mr. Leightty corresponded with EPSB Executive Director Susan Leib, questioning the adequacy of Ms. Weber's search and observing:
The response indicates that unspecified records are being withheld as privileged attorney/client communications, and as attorney work-product. The generic assertion of privilege is a serious concern, and I therefore request a "privilege log" -- i.e., a list of the records withheld including the date of item, its originator(s) and recipient(s), and a description of the item that, without disclosing allegedly privileged information, will afford an assessment of the applicability of the privilege. Attorney/client privilege will not apply, for example, simply because an item was forwarded to an attorney. And work-product privilege will apply only to those items which are truly the work product of an attorney for the agency and prepared in anticipation of litigation. I must be in a position to assess these claims of privilege.
Ms. Weber responded to Mr. Leightty's objections on October 1 advising:
Subject to my interpretation of your request (as explained in my response) and the items protected by attorney-client privilege and attorney work product, we have complied fully with your request of 18 September. This interpretation was applied to all documents, including e-mail records that had been deleted but remained available in the "recycle bin. " As you point out, most of the communications either originated or were directed to me. Under our agency policy, this is to be expected as I was Ms. Evans' supervisor.
. . .
In my letter of 21 September I provided the time period, the topic, and the parties involved in those communications where attorney-client privilege or attorney work product is claimed. To reiterate, since the 7th of August I have corresponded via e-mail with the general counsel of the Personnel Cabinet, my agency's executive director, and deputy executive director regarding potential administrative proceedings against Nancy Evans. I believe this satisfies the Attorney General's standard of proper identification and adequate explanation of how the privileges apply to deny disclosure. Accordingly, I will not be creating or providing you with the "privilege log" you request.
This appeal followed.
On appeal, Mr. Leightty advances the argument that pursuant to KRS 61.878(3) public agency employees, including his client Ms. Evans, have broader rights access to "any records that relate to" them than the public generally, including the right to inspect and copy otherwise exempt "preliminary and other supporting documentation." He objects to the EPSB's "broad and completely blind . . . invocation of the privilege" that has afforded the public "no means to assess whether the documents are genuinely privileged. " Noting that Ms. Weber herself acknowledged that she generated most of the records in dispute as Ms. Evans' supervisor but withheld them under the claimed privilege, he observes:
It is axiomatic that mere inclusion of an attorney in a communication does not make it an attorney-client privileged document, nor does the mere fact that an attorney created a document render it privileged "work product. " The Attorney-client privilege applies only where (among other things) the attorney involved is functioning as an attorney, and not (by way of relevant example) as a supervisor. KRE is specific in limiting the privilege to those communications exchanged between an attorney and his or her client which are "made for the purpose of facilitating the rendition of professional legal services to the client." KRS 503(b). The question of what role an individual who happens to be an attorney is filling often arises in the situation of an in-house or agency counsel -- as Ms. Weber is. "A communication is not privileged simply because it is made by or to a person who happens to be a lawyer." Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977). See also, Super Tire Engineering Co. v. Bandag Inc., 562 F. Supp. 439, 441 (E.D. Pa. 1983) ("Business communications will not be protected from discovery because they were directed to an attorney.").
Further, he comments:
The work-product doctrine, which has also been invoked by the EPSB, is limited to those situations where a document has been [sic] in the course of or in anticipation of litigation. The doctrine is codified in CR 26.02(3)(a). The agency's reliance on the doctrine here -- which includes documents prepared before any communication from the undersigned and before any indication that Ms. Evans might appeal from any agency action 1 -- assumes that any document that might trigger litigation (such as an appeal to the personnel merit board) must be deemed to have been prepared in anticipation of same. That is a non-sequitur. Documents that pertain to the employee's performance or that led to disciplinary action cannot be lumped into a generic work-product privilege, for they are documents of ordinary business -- such documents may have been prepared in the shadow of litigation but that will not suffice for the privilege. Bogan v. Northwestern Mut. Life Ins. Co., 145 F.R.D. 640 (S.D. N.Y. 1992). Only those documents which reflect legal impressions and conclusions are privileged.
As the requesting party, we have been completely kept in the dark as to the role Ms. Weber filled in any of the withheld documents. "[I]n a situation where the author or recipient of allegedly privileged documents functions as a corporate manager as well as an attorney, efforts must include clear designation of those communications sent or received in his capacity as legal advisor." Hardy v. New York News, Inc., 114 F.R.D. 633, 644 (S.D.N.Y. 1987). We have no way of knowing whether that guidance was followed here. The obligation imposed in KRS 61.880(1) to state specifically the basis for denial of any requests, in whole or in part, with "a brief explanation of how the exception applies to the record withheld" necessarily includes a meaningful identification of the records in question.
In closing, Mr. Leightty raises the issue of the adequacy of the EPSB's search for responsive records, questioning whether reasonable efforts were made to retrieve "deleted" electronic records "which although deleted are still recoverable, " and whether the EPSB's search for responsive records should have extended beyond records known to Ms. Evans' supervisor.
In a supplemental response directed to this office following commencement of Mr. Leightty's appeal, Ms. Weber elaborated on the agency's position. Explaining that the EPSB was created in 2000 and employs less than forty individuals, she advised:
Regarding our claim of attorney-client privilege, my original response to Mr. Leightty was guided by 00-ORD-111. Therein, several previous opinions are cited that construe KRS 61.878(3) and, in particular, its last sentence: A public agency employee...shall not have the right to inspect or to copy any?documents relating to ongoing criminal or administrative investigations by an agency. As I wrote to Mr. Leightty on 21 September, my correspondence with the Personnel Cabinet's general counsel was conducted in the course of an attorney-client relationship in order to obtain and provide my agency with advice on the legal considerations and ramifications of its actions regarding disciplinary action against Ms. Evans. I thus relayed that information to my executive director and deputy executive director and the decision was made to dismiss Ms. Evans. The matter is still ongoing as she has appealed her dismissal to the Personnel Board.
Regarding our reliance on the attorney work product doctrine, as stated above, I am the only attorney in this agency that provides legal advice to the executive director, as well as the supervisor of the only other attorney position (formerly occupied by Ms. Evans). I have provided Mr. Leightty with copies of documents relating to Ms. Evans' job performance that were produced in my capacity as her supervisor; I have withheld those documents that relate to the ongoing legal processes involved with disciplinary action and her dismissal.
Regarding our alleged failure to conduct a reasonable search for requested records, in our computer system, deleted e-mail is saved in a "recycle bin. " According to our technology people, once items have been deleted from that recycle bin, they are gone forever, as they are not saved on a server. Accordingly, when I wrote to Mr. Leightty that I had examined items in my recycle bin, I was in fact responding with full effort to his request for items "that have been 'deleted' but are still recoverable. "
Finally, regarding the allegation that we have only provided documents known to me, a reasonable search has been done by all those in his client's supervisory "chain of command" for e-mails and other documents relating to her job performance. None have been located beyond what has already been sent to Mr. Leightty. Except for e-mails with employees in our division of technology (that have been disclosed), Ms. Evans' job performance was not a topic of correspondence with other members of the staff or members of the board.
Pursuant to KRS 61.880(2)(c), on October 29 this office requested copies of the records in dispute to facilitate our review of Mr. Leightty's appeal. In addition, we asked that Ms. Weber describe the steps she took in conducting her search for responsive records. Ms. Weber subsequently furnished us with those records, consisting of correspondence commencing the week of August 7 and "conducted in the course of obtaining and providing [the EPSB] with advice on the legal considerations and ramifications of its actions regarding disciplinary action against Ms. Evans." She identified the records as follows:
At Tab A you will find e-mail correspondence between me and Daniel F. Egbers, General Counsel, Personnel Cabinet.
At Tab B is e-mail correspondence exchanged between me and Dr. Susan Leib, my Executive Director, and Mr. Tommy Haynes, my Deputy Executive Director.
Tab C includes all withheld word documents, including drafts, pertaining to this matter that were not e-mail attachments included under Tab A or B.
Ms. Weber further amplified on the search she conducted for responsive records:
Upon receipt of Mr. Leightty's 18 September request for all documents relating to Ms. Evans' job performance, I, her supervisor, conducted a search of my word documents, including those in the recycle bin, and my e-mail files--Inbox, Sent Items, Deleted Items, and Recycle Bin. I used the search word "Nancy." As all personnel matters in this agency move up a "chain of command," I advised my Executive Director and Deputy Executive Director to conduct the same search. In comparing our findings, it turned out that I was a party to all communication pertaining to Ms. Evans' job performance. This is not surprising, as the Education Professional Standards Board is a small agency of approximately 40 employees and each of the six division directors, myself included, is the point of contact for all personnel issues within his or her division. Thus, the most expeditious method of fulfilling the open records request was to copy the requested documents from my own computer. As stated in my 17 October correspondence to you, with the exception of e-mail between me and employees in the Division of Technology that has been previously disclosed, Ms. Evans' job performance was not a topic of correspondence with any other members of the staff or members of the Education Professional Standards Board.
With reference to Mr. Leightty's concerns regarding deleted items, Ms. Weber advised:
As I am not knowledgeable about data systems, I contacted Mr. Terry Hibpshman, our director of the Division of Technology, upon receipt of Mr. Leightty's request for recoverable deleted items. He advised me that, in our e-mail system, messages deleted from the "Inbox" or "Sent Items" moves to "Deleted Items." "Deleted Items" that are then deleted remain recoverable until they are deleted permanently. Although in past correspondence I properly described the e-mail search efforts, I improperly referred to the deleted e-mail "holding area" as a "recycle bin. " In fact, it is deleted word documents that move to the "Recycle Bin" but remain recoverable. However, deleted e-mail only remains in the system for 30 to 60 days at which time it is automatically purged.
Our review of the records in dispute discloses several salient facts.
. All of the records were created in advance of Mr. Leightty's September 17, 2001 fax to the EPSB and any suggestion that Ms. Evans might appeal the agency action;
. Some, but by no means all, of the records are designated confidential, but no other evidence in the record suggests that any precautions were taken to secure or maintain the confidentiality of the records;
. None of the records clearly establish in what capacity Ms. Weber was acting when she communicated with the EPSB executive director and deputy director or the Personnel Cabinet, or when she drafted the documents pertaining to disciplinary action against, and dismissal of, Ms. Evans.
These records were not disclosed to Mr. Leightty or to third parties, and have since been destroyed.
Bearing in mind that all responsive hard copy records were disclosed to Mr. Leightty, we address first the issue of the adequacy of the EPSB's search for responsive electronic records and the measures taken to recover "deleted items." Ms. Weber states that upon receipt of Mr. Leightty's request, she, as Ms. Evans' supervisor, conducted a search of her electronic files, including her email inbox, sent items, deleted items, and recycle bin, using the search term "Nancy" and advised her executive director and deputy executive director to do the same inasmuch "as all personnel matters in this agency move up a 'chain of command.'" She affirms that Ms. Evans' performance "was not a topic of correspondence with any other members of the staff or members of the Educational Professional Standards Board." Further, Ms. Weber states that she confirmed through the EPSB's director of technology that deleted email remains in the agency's system for 30 to 60 days, and is then automatically purged.
Whether the methodology the EPSB used constituted an adequate search turns on the standard established in 95-ORD-96. At page 7 of that decision, this office observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records ," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight ." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Clearly, Ms. Weber directed her inquiry to the first, and most obvious source, of records relating to Ms. Evans' performance, electronic records maintained in her own computer as Ms. Evans' supervisor, then extended the scope of her search to those individuals in the "chain of command" that could reasonably be expected to produce additional records pertaining to Ms. Evans. This was the search method that could reasonably be expected to produce responsive records. Any further efforts to locate responsive records would have been unreasonable here. We therefore conclude that the EPSB satisfied its statutory burden of proof by documenting what efforts were made to locate the records sought by Mr. Leightty, and that its search for those records was adequate under the standard articulated above.
With reference to the EPSB's duty to recover deleted email communications, we refer the parties to 00-ORD-132, a copy of which is attached hereto and incorporated by reference. At pages 7 through 10, this decision analyzes the status of email as a public record, and the duties of public agencies relative to retention and disclosure of same. Under the reasoning of this decision, we find no deficiency in the efforts undertaken by the ESPB to recover responsive email.
Turning to the issue of the propriety of the EPSB's partial denial of Ms. Leightty's request, we note that the parties to this appeal are obviously familiar with KRS 61.878(3) and open records decisions construing it. However, for purposes of absolute clarity, we note that 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 an open records decision issued to Mr. Leightty in 2000, and cited by Ms. Weber in support of the EPSB's position, this office observed:
97-ORD-87, p. 4 (emphasis added). [A] public agency employee . . . 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 [the employee] 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. [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)).
00-ORD-111, p. 7.
With reference to records excluded from public agency employee inspection that relate to ongoing criminal or administrative investigations of the employee by an agency, this office has drawn a careful distinction between investigations by an agency and actions against the agency. In 95-ORD-97, we reasoned:
Consistent with the general rule of statutory construction codified at KRS 446.080(4), which provides that "[a]ll words and phrases shall be construed according to the common and approved usage of language," and the specific rule of strict construction of the exceptions to the Open Records Act, codified at KRS 61.871, we believe that . . . personnel actions which public employees initiate[] cannot properly be characterized as "ongoing criminal or administrative investigations by an agency" within the meaning of KRS 61.878(3). (Emphasis added.) The term "investigation" is defined as "a careful search or examination; systematic inquiry." Webster's New World Dictionary 741 (1974). "Adjudication," on the other hand, is defined as "the act of hearing and deciding (a case, dispute, or problem)." Id., 17. These terms are by no means synonymous. Had it intended KRS 61.878(3) to apply to both the investigative and adjudicative phases of an administrative action, the legislature could have employed both terms. We assume that the legislature purposely employed the single term.
Moreover, KRS 61.878(3) limits public employee access to records relating to the employee only if the investigation is initiated "by an agency." (Emphasis added.) Again, if it were the legislature's intent that the prohibition extend to investigations initiated "against" an agency, it could have so provided by inclusion of the words "by or against." We attach significance to the legislature's particular word choice, and conclude that the limiting language of KRS 61.878(3) prohibits public employee access to their own records only when the criminal or administrative investigation (as opposed to adjudication) is undertaken by (as opposed to against) the agency. Compare KRS 61.878(1)(h) (authorizing nondisclosure of "[r]ecords of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication.")
95-ORD-97, p. 4; see also 96-ORD-124, note 1 (recognizing that the cited language "has been narrowly construed to prohibit a public employee's access to his own records only when the criminal or administrative investigation (as opposed to adjudication) is undertaken by (as opposed to against) the agency" emphasis in original). Ms. Evans' personnel action against the EPSB cannot be characterized as administrative investigations undertaken by the EPSB, and this language therefore does not operate as a prohibition on disclosure of the records to her.
Those records might nevertheless be exempt from disclosure to her if, as the EPSB argues, they qualified for exclusion under KRS 61.878(1)(l) and the rules governing the attorney client privilege and attorney work product. Thus, in 00-ORD-111, we observed:
In 96-ORD-40 this office affirmed the Cabinet for Human Resources' [footnote omitted] 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:
00-ORD-111, p. 7, citing 96-ORD-40, pp. 4, 5.
Continuing, we examined the nature of the privilege:
KRE 503(b) codifies the general rule of privilege:
With respect to the privilege, the Attorney General has observed:
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.
00-ORD-111, p. 7, 8; see also, Hahn v. University of Louisville, Ky. App. No. 2000-CA-001296-MR (July 20, 2001), petition for discretionary review filed August 22, 2001.
Here, as in 00-ORD-111, the EPSB has done little more than invoke the privilege. Although the EPSB repeatedly recites the language of 00-ORD-111 2 relative to communications "exchanged in the course of [the] attorney client relationship in order to [obtain and] provide . . . advice on the legal considerations and ramifications of [the EPSB's] actions," 00-ORD-111, p. 7, nothing in the disputed records or in the record on appeal supports invocation of the privileges. As noted, those records were generated in advance of any threat of legal action against the EPSB, were designated confidential in only some cases, and do not reflect additional measures taken to insure confidentiality, and do not indicate that they were issued by, or directed to, Ms. Weber in her capacity as EPSB general counsel rather than as Ms. Evans' supervisor. Such communications are no doubt common among agency supervisors and their superiors, as well as the Personnel Cabinet, under similar circumstances involving an employee accused of misconduct, and the fact that the supervisor is also an attorney does not necessarily change their character as records relating to disciplinary action including preliminary and other supporting documentation. We cannot conclude that they 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 can we affirm that they consist of "the mental impressions, conclusions, opinions, or legal theory of an attorney or other representative" of the EPSB concerning litigation, thus qualifying for exclusion as attorney work product. As we observed in OAG 91-109, a public agency "cannot withhold every document that relates to a particular matter under KRS 61.878(1)[(l)] and the attorney client/work product doctrine simply because it is represented by an attorney in the matter." OAG 91-109, p. 4, citing OAG 88-25.
We believe that Mr. Leightty is correct in his view that the attorney client privilege applies "only where (among other things) the attorney involved is functioning as an attorney, and not (by way of relevant example) as a supervisor, " and that documents leading up to disciplinary action "cannot be lumped into a generic work-product privilege, for they are documents of ordinary business . . . [even if] prepared in the shadow of litigation . . . ." The EPSB has not established that it was the client, and Ms. Weber the attorney, within the relationship contemplated by the privilege and the communications exchanged therefore privileged. Nor has the EPSB established under what, if any, subpart of the general rule of privilege found at KRE 503(b) 3 Ms. Weber's communications with Mr. Egbers qualified as confidential communications. We therefore conclude that the EPSB did not meet its statutory burden of proof in sustaining the partial denial of Mr. Leightty's request, and that his client, Ms. Evans, is therefore entitled to inspect or copy those records pursuant to KRS 61.878(3).
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 proceedings.
Footnotes
Footnotes
1 In footnote 2 of his letter of appeal, which we paraphrase, Mr. Leightty indicates that he first communicated with the EPSB in a faxed letter dated September 17, 2001, but notes that the EPSB has withheld correspondence dating back to August 7.
2 We note that the record in 00-ORD-111 reflected the existence of proposed and pending litigation and that the Attorney General only affirmed the agency's denial of access to records "directly relate[d] to the anticipated litigation involving [Mr. Leightty's client's] injuries and the termination of his workers' compensation benefits, and which satisf[ied] each of the requirements of KRE 503, or [could] be characterized as "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the [agency] concerning the anticipated litigation. " 00-ORD-111, p. 1, (Emphasis in original). The Attorney General otherwise required disclosure pursuant to KRS 61.878(3).
3 KRE 503(b)(1) through (5) recognizes that the privilege extends to confidential communications:
(1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer.
(2) Between the lawyer and a representative of the lawyer;
(3) By the client or a representative of the client or the client's lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein;
(4) Between representatives of the client or between the client and a representative of the client; or
(5) Among lawyers and their representatives representing the same client.
Pursuant to KRS 18A.025(3)(a)1.a., the Personnel Cabinet's Office of Administrative Services, to which Mr. Egbers is presumably attached, "[p]rovides all administrative information systems management, and legal services to the Cabinet [.]" (Emphasis added.)