Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Clinton County Board of Education violated the Open Records Act in denying the request of Robert L. Bertram, on behalf of his clients, Jennifer Cross, Joyce Boles, Dorothy G. Smith, or Dennis Smith, for copies of:
Any and all reports filed with the Clinton County Board of Education by any investigator hired to investigate allegations made by Jennifer Cross, Joyce Boles, Dorothy G. Smith, or Dennis Smith against Superintendent Sam Gibson.
Responding on behalf of the Board, Lindsey G. Bell, counsel for the Board, denied Mr. Bertram's request, stating:
Please be advised that it is my position that these documents are privileged and protected under the attorney/client privilege, and are not subject to open records requests.
In his letter of appeal, Mr. Bertram argues that the reports are not privileged and that the Board failed to cite any statutory reason that excluded the documents from the provisions of the open records law.
After receipt of the Notification of the appeal and a copy of the letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Bell, on behalf of the Board, provided this office with a response to the issues raised in the appeal. Expanding on his original response, Mr. Bell advised, in relevant part:
The requested reports are protected by the attorney-client privilege. The Board retained attorney Regina A. Jackson with the firm of English, Lucas, Priest & Owsley in Bowling Green, Kentucky for assistance and advice in resolving the internal complaints made by Jennifer Cross and Dorothy and Dennis Smith against Superintendent Sam Gibson. The Board retained attorney Winter Huff of the Law Offices of John G. Prather for assistance and advice in resolving the internal complaint made by Joyce Bowles against Mr. Gibson. All reports regarding these internal complaints were by either Ms. Jackson or Ms. Huff and were not disseminated to any person other than the Board members and myself, as the regular Board attorney. Because the reports were prepared by attorneys retained by the Board and contain legal opinions, conclusions, and advice to the Board, they are protected by the attorney-client privilege and are not subject to production under Mr. Bertram's open records request.
?
The records which Mr. Bertram seeks are protected by the attorney-client privilege pursuant to KRE 503 and KRS 61.878(1)(k) and (l). The Board sought legal advice and assistance from two independent attorneys in addressing the internal complaints of Mr. Bertram's clients. The advice and assistance was rendered in confidence, and no waiver o[f] the attorney-client privilege has occurred. Under these circumstances, the decision denying Mr. Bertram's request for records should be affirmed.
Additionally, the reports are exempt pursuant to KRS 61.878 which states in pertinent part "(1) the following public records are excluded from the applications of KRS 61.870 - 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, . . . .
It is the School Board's position that these reports were withheld pursuant to this statute as materials that were included in its investigative file. Additionally, the School Board did not retain copies of the reports of Attorney Regina Jackson.
The dispositional orders rendered by the Board did not incorporate the predecisional documents requested by Mr. Bertram and as such are exempt from the Open Records Request. (98-ORD-117)
It is the contention of the board that these reports are not subject to open records request in that they are the subject of the attorney-client privilege.
We are asked to determine whether the Board properly withheld disclosure of requested reports. For the reasons that follow, we conclude that the reports are protected from disclosure by the attorney-client privilege and the Board properly denied the request for the documents under authority of KRS 61.878(1)(l) and KRE 503 and as predecisional documents not adopted as part of final agency action, pursuant to KRS 61.878(1)(i) and (j). 1
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 KRE 503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication 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:
Thus, the privilege consists of three elements: The relationship of attorney and client, communication by or to 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. Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3d ed 1993), citing United States v 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. The term "client" is defined to include "a person, including a public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer. . . ." KRE 503(a)(1). The privilege extends to communications from attorney to client "if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence. " Kentucky Evidence Law Handbook at § 5.10 citing United States v Defazio, 899 F.2d 626, 635 (7th Cir 1990). Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objective." Kentucky Evidence Law Handbook § 5.10.
97-ORD-127.
In the instant case, the Board's supplemental response indicated that it retained the services of two independent attorneys to provide legal advice and assistance in addressing internal complaints by Mr. Bertram's clients against the School Superintendent. The response states that the requested reports, prepared by the retained attorneys, "contain legal opinions, conclusions, and advice to the Board, were rendered in confidence to the Board and were not disseminated to any person other than the Board members and the regular Board attorney.
As the Board's response indicates, the reports were prepared by the retained attorneys as part of a professional relationship in order to provide the Board with legal advice on the internal complaints against the School Superintendent, thus satisfying the first and second parts of the three-part test. It is also clear that the Board has attempted to insure that the information contained in the reports was shielded from disclosure, as the reports were rendered in confidence and received by only the Board and its regular Board attorney. In addition, the Board has made continuing efforts to insure the confidentiality of the reports by denying Mr. Bertram's request under authority of the attorney-client privilege. In our view, the Board has affirmatively established confidentiality, the evidence demonstrating that every effort was made to protect the reports within the agency from the date it was prepared to the present. 94-ORD-88.
Accordingly, we believe that KRS 61.878(1)(l), operating in tandem with KRE 503, justifies the nondisclosure of the disputed records. It is the opinion of this office that the Board properly withheld the reports prepared by its retained counsel pursuant to the attorney-client privilege.
Additionally, this office has previously recognized that although a number of the exceptions to the Open Records Act are forfeited "upon the occurrence of a specific event, this has never been the rule with respect to attorney work product [and documents shielded by the attorney-client privilege]." Simply stated, reliance on legal advice in pursuing final agency action does not negate the attorney-client privilege. 97-ORD-127; OAG 91-214.
Equally persuasive that the reports were properly withheld from disclosure is the Board's reliance upon KRS 61.878(1)(i) and (j). In our view, these exceptions, as interpreted in City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982) provide authority for denying access to the reports. That opinion firmly establishes that investigative files of a police department's internal affairs unit "are exempt from public inspection as preliminary under KRS 61.878(1)[(i) and (j)]" prior to final administrative action, and after that action unless those files are adopted as part of the final administrative action.
The Board asserted that the reports were also materials included in its investigative file and were not adopted as part of its dispositional orders. Accordingly, the Board also properly denied access to the reports under authority of KRS 61.878(1)(i) and (j).
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.
Robert L. BertramOne Monument SquareP.O. Box 25Jamestown KY 42628
Mickey McFallClinton County Board of EducationRoute 4, Box 100Albany KY 42602
Lindsay G. BellP.O. Box 720Burkesville KY 42717
Footnotes
Footnotes
1 Without belaboring the issue, we note that the Board's initial response to Mr. Bertram's request was procedurally deficient in failing to conform to the requirements of KRS 61.880(1), which requires "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the records withheld. "
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