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 Public Advocacy's (DPA) denial of the request of Jerry Mathenia for a copy of "the names of every defendant that was represented by Joel (Rob) Embry III dating from December 1992 til his termination, " violated the Open Records Act. For the reasons that follow, we conclude the denial was consistent in part and inconsistent in part with the Act.
In denying Mr. Mathenia's request, Larry D. Beale, General Counsel, DPA, explained:
The Department of Public Advocacy and its attorneys are required by KRS Chapter 31, applicable Supreme Court Rules, Rules of Professional Responsibility, and the Canons of Ethics to keep names of defendants confidential as a matter of both statutory and ethical responsibility. As a general rule, DPA strives to protect the confidentiality and privacy of its clients from outside disclosure unless specifically permitted by a waiver or required by an Order of Court.
Moreover, the compilation of names of every defendant represented by Mr. Embry over a span of nearly ten years would be unduly burdensome and is not required by the Kentucky Open Records Act. KRS 61.872.
The disclosure of names of individuals Mr. Embry represented also would require an attorney-client privilege waiver by those individuals, and unless they were willing to waive, we would respectfully decline the request. Any attempt to compile names or contact possibly hundreds of clients would be burdensome, if not impossible.
Therefore, for all the above reasons, your request is hereby denied.
After receipt of Notification of Mr. Mathenia's appeal and a copy of his letter of appeal, Mr. Beale provided this office with a response to the issues raised in the appeal. Elaborating on his original response, Mr. Beale advised:
We regret that we have been unable to discuss the matter of Mathenia with you. In order to comply with said open records appeal request, this agency has made a good faith effort to locate the names of individuals wherein Mr. Joel Rob Embry is listed as providing representation and maintained in a DPA caseload database. While not exhaustive, as there is no real way to know all defendants Mr. Embry represented short of contacting the courts involved, we did locate hundreds of cases wherein Mr. Embry provided representation while on staff with the Department of Public Advocacy.
At this time, we restate the agency's position with respect to Mr. Mathenia's original request. We find Rule 1.6 of the Rules of Professional Conduct clearly require DPA to maintain the confidentiality, including names and other identifying information, of clients receiving representation by this agency. These protected clients would include Mr. Mathenia himself, had he been or presently being represented by a Department of Public Advocacy staff attorney. Therefore, we invoke the responsibilities and requirements of the provisions of Rule 1.6, and finding no express exceptions thereto, as dispositive of Mr. Mathenia's request at this time.
Further, if this tribunal would so order the names of those represented by Mr. Embry be released, doing so would place a tremendous burden upon agency staff to solicit and obtain express authorizations to disclose their names from each client as this agency would feel obligated to do.
We are asked to determine whether DPA's denial of Mr. Mathenia's request violated the Open Records Act. For the reasons that follow, we conclude the denial was consistent in part and inconsistent in part with the Act.
To begin, Mr. Mathenia requested a copy of "the names of every defendant that was represented by Joel (Rob) Embry III dating from December 1992 til his termination. " We construe this as a request for information or a copy of a "list" of every defendant represented by Mr. Embry during the designated period.
The Kentucky Open Records Act addresses requests for records, not requests for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
Accordingly, we conclude that the DPA did not violate the Act in denying Mr. Mathenia's request for information.
Moreover, in 96-ORD-251, this office stated:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
Thus, the Open Records Act does not require the DPA to conduct research or research its records to provide the information or to compile a list of the information Mr. Mathenia requests.
However, for the reasons that follow, if the DPA has a list of the defendants that Mr. Embry represented during the designated period, it should be made available to Mr. Mathenia.
It is DPA's position that the names of the defendants represented by a DPA attorney are confidential and that it is "required by KRS Chapter 31, applicable Supreme Court Rules, Rules of Professional Responsibility, and the Canons of Ethics to keep the names of defendants confidential as a matter of both statutory and ethical responsibility."
Specifically, the DPA relies upon Rule 1.6 of the Rules of Professional Responsibility as support for its position that it is required to keep the names and other identifying information of clients receiving representation by DPA. Rule 1.6 - Confidentiality of Information, provides:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
(2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(3) To comply with other law or a court order.
In 97-ORD-71, this office held that reference to the Kentucky Rules of Professional Conduct is not a sufficient basis to meet an agency's burden of establishing that the requested records are exempt under an applicable provision of the Open Records Act.
In addition, although decided on other grounds, the Kentucky Court of Appeals, in Hughes v. Meade, Ky., 453 S.W.2d 538 (1970), in discussing the attorney-client privilege and the disclosure of the identity of the client opined that it is generally held that the identity of a client is not a privileged communication. The Court, at pgs. 540-541, stated:
The limitations of the rule are thus stated in 8 Wigmore, Evidence § 2291 (McNaughton rev. 1961) (page 554):
In line with those limitations, it is generally held that the identity of a client is not a privileged communication. United States v. Pape (C.A.2 1944), 144 F.2d 778, 782, cert. den. 323 U.S. 752, 65 S. Ct. 86, 89 L. Ed. 602 (1944); Behrens v. Hironimus (C.A.4 1948), 170 F.2d 627,628; Colten v. United States (C.A.2 1962), 306 F.2d 633, 637; NLRB v. Harvey (C.A.4 1965), 349 F.2d 900, 16 A.L.R.3d 1035; In the often cited case of People v. Warden of County Jail, 150 Misc. 714, 270 N.Y.S. 362, 367 (1934), it was said:
Based on the foregoing and no exception to this general rule having been set forth by DPA, we conclude that disclosure of the identity of a client's name is generally not protected by the attorney-client privilege, and does not reveal confidential information relating to representation of a client.
Moreover, to qualify for representation by the DPA, a defendant is required to meet certain requirements, such as being a "needy person" and "is being detained by a law enforcement officer, on suspicion of having committed, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime." KRS 31.010(1); KRS 31.110. In order to be determined as a needy person, the person must appear in court for a determination as to whether that person is needy under the terms of KRS Chapter 31. Thus, when a person is determined to be a needy person and appointed a public advocacy attorney, that fact would be a matter of public record.
Because the representation is of public record, we do not believe a waiver of release of this fact by the client would be required. Support for this conclusion is found in Opinion KBA E-253, in which the Ethics Committee was asked: "May a lawyer reveal the names and addresses of clients?" The committee's answer was a "qualified yes." In reaching this result, Opinion KBA E-253 provides in Part:
We believe that a proper application of the phrase "confidences and secrets of a client" includes any information about the attorney/client relationship, including its very existence (unless, of course, the representation of the client's interest requires it). We must then examine the question of whether the disclosure of confidences and secrets can be permitted by the client's waiver.
Obviously, a competent client, with full knowledge of the information to be disclosed, can consent to the disclosure of any confidence or secret, including the release of his name as a client of a specific attorney and his credit history with that attorney.
The Ethics Committee in applying the discussion above to the specific questions asked, adopts the following statements:
(Emphasis added.)
Since a defendant's representation by a DPA attorney is a matter of public record, we conclude that disclosure of this information would violate neither the confidentiality of communications between the client and his attorney nor the privacy of the defendant. Likewise, because "the circumstances of the representation" make it obvious that the defendant, seeking representation of DPA counsel in open court, does not expect confidentiality as to the existence of the attorney/client relationship, we conclude that no formal waiver of release from that client would be required. Opinion KBA E-253.
As noted above, the Open Records Act does not require an agency to honor requests for information, as opposed to requests for records, or to compile a list to meet the parameters of an open records request. However, if the DPA has an existing list of the defendants DPA attorney Embry represented during the period in question, it should make a copy available to Mr. Mathenia. Because the foregoing is dispositive of this appeal, we do not address other bases cited by DPA in support of its denial of the request.
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.
Distributed to:
Jerry Mathenia, #115927Green River Correctional ComplexDorm 1P.O. Box 9300Central City, KY 42330
Larry BealeGeneral CounselDepartment of Public Advocacy100 Fair Oaks Lane, Ste. 302Frankfort, KY 40601