Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Department of Housing, Buildings and Construction's partial denial of the open records request of Sammie Flournoy violated the Open Records Act. For the reasons that follow, we conclude it did not.
By letter dated December 14, 2001, Sammie Flournoy made a request for certain information and records relating to Twin Oaks Mobile Home Sales, Inc., to Sammie Flournoy, and to his reprimand proceedings in October, 2000.
By letter dated December 19, 2001, Janet Hall, General Counsel for the Department, responded to Mr. Flournoy's letter, which was received on December 17, 2001. In her response, Ms. Hall advised:
We are in receipt of your open records request concerning the enforcement action filed by the Office of the State Fire Marshal against you and your company. I have been advised that the records you have requested consist of a number of files located in different places.
We have every intention of responding to your request, however, due to the number of documents involved it will take us until at least December 28th to pull them together and review what may and may not be released under the open records act and to estimate the copying charges. We will then advise you of what those charges will be and upon receipt of payment for same we will mail those copies to you. As an alternative, you may also come to this office and review those documents that may be released and decide which documents you may wish to have copied.
We will also attempt to answer some of the questions you have raised in your request after our review of the records.
By letter dated December 28, 2001, Ms. Hall advised, in part relevant to his records request:
You have requested copies of "any and all" documents concerning the reprimand issued by this office in October of 2000 and the administrative action taken in December, 2000. You also request copies of "all paperwork" concerning you or Twin Oaks Manufacture Home Sales.
We have now located five files related to your request. We have ascertained that the copying charges for some of the documents you have requested to be $ 64.90. This is a charge of ten (10) cents per page for a total of approximately 649 pages for these copies. Upon receipt of this amount made payable to "Kentucky State Treasurer" and addressed to me at the above noted address, we will forward these copies to you. As an alternative, you may wish to come into the office any time during our normal business hours (8 am to 4:30 pm) and look through the documents to see what, if anything, you wish to have copied. I would recommend you contact me or my assistant, Jean McCoy, to let us know when you will be coming so we can have the files and someone to make copies for you available without delay.
To the extent your request seeks copies of confidential attorney client communications, your request must be denied in accordance with KRS 61.878(1)(l). We have identified seven such documents consisting of memorandum between the General Counsel to this Department and Fire Marshall staff, which are exempt in accordance with the above-cited statute.
We are asked to determine whether the actions of the Department violated the Open Records Act. At issue in this appeal is only a partial denial, as Mr. Flournoy was provide with access to approximately 649 pages of records relevant to his request. For the reasons that follow, we conclude that the Department's denial of access to records containing confidential communications between attorney and client relating to the reprimand and administrative action was proper and consistent with the Act and prior decisions of this office.
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 [.]
In 97-ORD-127, this office explained the attorney client privilege as follows:
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.
In her response to Mr. Flournoy, Ms. Hall identified seven documents that were withheld from disclosure and identified those documents as confidential attorney-client communications between the General Counsel to the Department and Fire Marshall staff concerning the reprimand issued by the office and the administrative action taken concerning Mr. Flournoy and Twin Oaks Manufacture Home Sales. She has provided this office with copies of these records for our in camera review. That document was not disclosed to other parties, and has since been destroyed. KRS 61.880(2)(c); 40 KAR 1:030 Section 3.
We are asked to determine whether the Department's withholding of the records containing confidential communications between attorney and client at issue in this appeal was consistent with the Open Records Act. For the reasons that follow, we conclude that the Department properly withheld disclosure of the seven documents. Although we cannot disclose the contents of the documents, they can be characterized generally as confidential attorney-client communications between the Department staff and its former General Counsel or her administrative legal assistant regarding Mr. Flournoy's case.
Clearly, these records that were prepared in order to provide the Department with legal advice concerning the reprimand issued by the agency and the administrative action taken satisfy the first and second parts of the three part test. It is equally clear that the Department has attempted to insure that the analysis contained in the attorney-client communications be shielded from disclosure by identifying and describing the documents as confidential. Moreover, by denying access to Mr. Flournoy on those grounds, the Department has made continuing efforts to insure its confidentiality.
Accordingly, we find that KRS 61.878(1)(l), operating in tandem with KRE 503, justifies the nondisclosure of records containing confidential attorney-client communications and conclude that the Department properly denied access to those documents.
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.
Sammie Flournoy5615 Hwy. 60 WestPaducah, KY 42001
David Lee ManleyState Fire MarshallDepartment of Housing, Buildings and Construction1047 U.S. 127 South, Suite # 1Frankfort, KY 40601
Janet HallGeneral CounselDepartment of Housing, Buildings and Construction1047 U.S. 127 South, Suite # 1Frankfort, KY 40601