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 Kentucky State Fair Board violated the Open Records Act in the disposition of Joan Cash's March 16, 2002 request to review her personnel file and "any and all other files or documents relating to [her] or [her] employment at the Kentucky Fair and Exposition Center . . . ." We address two issues. The first of these issues is whether the Fair Board conducted an adequate search for responsive records. The second issue is whether the Fair Board properly withheld some documents pursuant to the attorney-client or work product privileges. Based on the broad scope of Ms. Cash's request, we find that the Board conducted an adequate search for records responsive to her March 16 request. However, with respect to the issue of privileged documents, we find that the Board improperly withheld one document, and the attachments to other documents, identified in its privilege log.
In a response dated March 21, 2002, Fair Board Director of Personnel Barbara Burkhead Whitley acknowledged receipt of Ms. Cash's request on March 18. Ms. Whitley indicated that "what is considered by the Fair Board as [Ms. Cash's] personnel file" 1 had been located, as had "a file regarding a complaint [she] filed with the Kentucky Labor Cabinet regarding [her] employment at the Fair Board." She advised that both files were available for inspection with the exception of "correspondence and attachments to the correspondence between Mr. Harold Workman, the President and CEO of the Fair Board, and Mr. Richard Carroll, an assistant attorney general who served as the attorney for the Fair Board regarding [Ms. Cash's] complaint." She explained that these records qualified for exclusion under KRS 61.878(1)(l), incorporating the attorney-client privilege, codified at KRE 503, into the Open Records Act. In closing, Ms. Whitley stated that "[t]his [was] the extent of the search [she] conducted for records . . . responsive to [Ms. Cash's] request." She observed:
I did not conduct a search of all documents and files that have been generated by all employees of the Fair Board over the years that relate to you or your employment at the Fair Board. To do so would require me to inspect literally thousands of documents and files that have been created over the years at the Fair Board.
It was Ms. Whitley's position that such a search would constitute an unreasonable burden under KRS 61.872(6).
On May 13, 2002, Ms. Cash accepted the Fair Board's invitation to inspect records that had been compiled in response to her open records request. Dissatisfied with the results of her inspection, she initiated this appeal in a letter dated June 20, and received on June 26, questioning whether the Board was justified in withholding correspondence exchanged by Mr. Workman and Mr. Carroll and whether the Board conducted an adequate search for responsive records. On the latter issue, Ms. Cash observed:
Ms. Whitley cites 'unreasonable burden' under KRS 61.872(6). To my knowledge, my name should appear on the following items and these would not constitute thousands of documents/files: time sheets, break sheets, payroll records, cancelled paychecks, accountability sheets, monthly work schedules, daily work assignment schedules, CCL sheets, KY State Fair and NAILE documents.
She reiterated, however, that any other documents or files in which her name appears "should be disclosed."
In a supplemental response directed to this office following commencement of Ms. Cash's appeal, Fair Board attorney Richard C. Carroll elaborated on the Board's position. By way of background, he explained:
Ms. Cash was hired in 1996 to work in one of the numerous tollbooths located at the various entrances to the Kentucky Fair and Exposition Center, which is operated by the Fair Board. Over the years she has worked on a regular basis at the Fair and Exposition Center. In general her duties consist of receiving money from patrons interested in parking in one of the lots operated by the Fair Board for events that take place at the Fair and Exposition Center. Ms. Cash is not a full or part time, merit or non-merit state employee. Instead she was hired as what is commonly referred to as a "non P-1 employee" which means she is in effect paid on an hourly basis and hired to work on a month to month basis as needed by the Fair Board. She does not receive the traditional benefits provided to regular state employees. As a result of this employment status the personnel files normally maintained by a state agency on regular state employees are not maintained on "non P-1 employees" such as Ms. Cash.
In August of 2000 Ms. Cash filed a complaint against the Fair Board with the Kentucky Labor Cabinet in which she claimed she had been unlawfully terminated from her position with the Fair Board. I represented the Fair Board in resolving that complaint with the Labor Cabinet. This resolution was accomplished only after negotiations were engaged in with representatives from the Labor Cabinet acting on behalf of Ms. Cash, and myself and Mr. Workman on behalf of the Fair Board. At the completion of the negotiations a written settlement agreement was entered into among the Labor Cabinet, Ms. Cash, and the Fair Board. However, prior to arriving at the final version of that agreement numerous drafts of the agreement were considered. On behalf of the Fair Board I reviewed the proposed settlements with Mr. Workman and in numerous letters I advised him of my legal opinion regarding the proposals and suggested counter proposals.
In addition to the complaint filed by Ms. Cash, an investigation of the facilities at the Fair and Exposition Center was undertaken by a division of the Labor Cabinet regarding allegations of violations of federal occupational, health, and safety standards that govern the use and removal of lead paint. This investigation also resulted in the Fair Board entering into an agreement with the Labor Cabinet. Ms. Cash also became involved during the settling of this matter and was listed as a "authorized employee representative" on some of the documents associated with that process.
Mr. Carroll indicated that in an attempt to comply with her request, the Board located Ms. Cash's personnel file and the file relating to her complaint to the Labor Cabinet, withholding only those documents that qualified for exclusion under the attorney-client and work product privileges. He provided this office with a privilege index consisting of eleven documents (and their attachments) , and described, in general terms, the origin and content of each. With reference to these records, Mr. Carroll advised:
The . . . documents were prepared in my capacity as counsel to the Fair Board regarding two separate matters pending before the Kentucky Labor Cabinet that involved Ms. Cash. The documents were sent to Mr. Workman in his capacity as the President of the Fair Board along with my legal impressions and recommendations for his review and consideration. In addition, in two situations as referenced above Mr. Workman specifically requested I prepare on his behalf suggested responses to open records requests which constitute examples of my work product. . . . As described above it is submitted that all of the documents satisfy the criterion necessary to be considered as falling under the protection of the attorney-client privilege and work product doctrine as described in 96-ORD-40 and 99-ORD-14. Therefore Ms. Cash's appeal insofar as this issue is concerned should be denied.
In support of the Fair Board's position that, given the broad scope of Ms. Cash's request, a search for all responsive records would be unreasonably burdensome, Mr. Carroll commented:
This request by Ms. Cash to review "any and all files or documents relating to me or my employment at the Kentucky Fair and Exposition Center", is akin to similar requests referred to in numerous prior opinions of the Office of the Attorney General as a "blanket request" for documents. See OAG 89-8, OAG 91-58, and 99-ORD-14. In each of these opinions it was determined that the agency was not required to conduct a review of all of its records in an attempt to satisfy the over broad request. While the fact pattern in 99-ORD-14 involved a request for copies of "any and all documents, in whatever form that contain the name or relate to" the requestor, the other two referenced opinions dealt with requests to inspect or have access to a very broad expanse of documents such as "all records concerning two specifically named state troopers". Nevertheless the decisions in all of the opinions were the same in that the agency was not required to conduct a broad inspection of all of its records to determine if any of them related to the requestors.
To hold otherwise, he submitted "would require Fair Board personnel to search all of the thousands of records that have been created at the facility since 1996 . . . ." It was Mr. Carroll's position that Ms. Cash's letter of appeal demonstrated her ability to narrow the scope of her request, thus facilitating an agency search for reasonably described records, but he reaffirmed the Board's right to deny blanket requests for "any and all other files or documents relating, to [Ms. Cash] or [her] employment" pursuant to KRS 61.872(6).
On July 15, 2002, this office issued a formal request to the Fair Board for additional information, and copies of the disputed records, pursuant to KRS 61.880(2)(c). We asked that the Board respond to the following questions:
1. In general, what efforts were made to insure that the disputed records were not disclosed to third persons other than those to whom disclosure was made in furtherance of the rendition of professional legal services? In other words, what measures were taken to insure their confidentiality?
2. With regard to the third numbered paragraph in the privilege log you tendered, please explain how a communication with an attorney for the Labor Cabinet satisfies the requirements of KRS 503(b), including into which subpart of the rule of privilege that communication falls, and how this is consistent with the requirements of confidentiality. It would be helpful if you could explain the process for adjudicating a complaint before the Labor Cabinet, e.g., how the parties are aligned in these proceedings and what role the Labor Cabinet plays.
In addition, we asked that the Fair Board describe all locations that were searched in order to satisfy Ms. Cash's request, and what its position would be on conducting an additional search for the records identified in her June 20 letter of appeal, excluding "any other document on which her name appears."
On July 18, Mr. Carroll responded to our KRS 61.880(2)(c) request. On the question of measures taken to insure confidentiality, he explained:
Enclosed you will find copies of the documents that were described in my July 9 response. From your review you will see I prepared the overwhelming number of the letters and accompanying documents for Mr. Workman's review and consideration in regard to trying to resolve the complaint filed by Ms. Cash. Mr. Workman and I then discussed the action if any that would be taken as a result of my correspondence and attachments. Except for a few examples, the letters to Mr. Slone and Mr. Hintze, these materials were sent by me to and shared only with Mr. Workman throughout the process of trying to resolve the complaint Ms. Cash had filed with the Labor Cabinet. None of my letters to Mr. Workman were shared by me with any other members of Mr. Workman's staff and to my knowledge were not shared by Mr. Workman with other members of his staff. It is also my understanding that Mr. Workman maintained a file on Ms. Cash's complaint in his office area at the Fair and Exposition Center and the contents of that file were not shared with others. I was always under the impression that these materials were protected under the attorney-client privilege as set forth in KRS 422A.0503 and the work product doctrine found in CR 26.02(3)(a). I have checked with Mr. Workman and he confirmed that he was under the same belief.
The two drafts of letters I prepared for Mr. Workman to review were initially given by me to Mr. Workman who then gave them to his personal secretary for typing but again not shared with other staff in the office. Again Mr. Workman has confirmed to me that he believed these documents were to be protected under the attorney-client privilege and work product doctrine.
As to the process for adjudicating Ms. Cash's complaint before the Labor Cabinet, I was advised by the attorney's with the Cabinet that the Labor Cabinet was in charge of investigating the complaint, deciding if there was a violation, and having the sole authority on whether to settle the matter. If settlement could not be reached the Cabinet could cite the agency for an alleged violation and an administrative hearing would be held before the Kentucky Occupational Safety and Health Review Commission to determine if the agency had in fact committed a violation. It was based upon this understanding that negotiations were undertaken with representatives of the Cabinet.
In your July 15 letter you requested that I explain how the communication described in numbered paragraph three of the privilege log I previously provided to you satisfies the requirements of KRE 503(b). That letter was part of the settlement process that was undertaken between the two parties. It was in response to a proposal made by the Labor Cabinet and was made in confidence to Mr. Slone.
Turning to the question of the nature of the search conducted by the Board for responsive records, Mr. Carroll advised:
Ms. Whitley, the Personnel Director began her search in the personnel department. She also spoke with Mr. Workman regarding any records he had after I advised her of the Labor Cabinet issue. Finally she spoke with personnel in the Department where Ms. Cash is and has always been assigned to since she became employed with the Fair Board. The result of that search revealed the records that made up Ms. Cash's personnel file, and documents found in the files of Mr. Workman. These locations were the most likely locations where documents related to Ms. Cash's personnel file would be located. However, due to the fact that Ms. Cash had requested to be provided with copies of "any and all files or documents relating to me or my employment at the Kentucky Fair and Exposition Center", conceivably since the date she was employed in 1996, and after Ms. Whitley advised me that such a search would consist of reviewing thousands of records over a six year period, I advised Ms. Whitley such a search was not required under previous decisions of the Attorney General's office that have discussed the unreasonable burden standard.
In closing, Mr. Carroll stated that the Fair Board was willing to "begin a review" of its records for those documents specifically enumerated in Ms. Cash's letter of appeal, but reserved the right to object on the basis of KRS 61.872(6) if the search proved unreasonably burdensome.
We begin by noting that the Kentucky State Fair Board has expended considerable effort in attempting to honor Ms. Cash's request, and we are confident that it will continue to do so in finally resolving these records access issues. The first of two questions before us in this appeal centers on the adequacy of the efforts already expended and whether additional efforts would constitute an undue burden on the agency within the meaning of KRS 61.872(6). 2 Based on the reasoning underlying this office's decision in 99-ORD-14, we find that the Board conducted an adequate search for records responsive to Ms. Cash's March 16 request and that it has sustained its burden of proof relative to the claim that additional search efforts would be unduly burdensome.
The second question before us is whether the Board properly relied on KRS 61.878(1)(l), incorporating the attorney-client and work product privileges into the Open Records Act, in denying Ms. Cash access to documents generated in the course of defending the complaint she filed against the Board with the Kentucky Labor Cabinet. While we agree that many of the eleven sets of documents that are identified in the privilege log prepared by the Board that were authored by Mr. Carroll for Mr. Workman's sole scrutiny fall squarely within the parameters of the attorney-client privilege and were therefore properly withheld, we find that letters drafted by Mr. Carroll but directed to the Labor Cabinet, and attachments to a number of the letters drafted by Mr. Carroll for Mr. Workman but authored by employees of the Labor Cabinet, do not qualify for exclusion and must be disclosed to Ms. Cash. These nonexempt records will be specifically identified below.
Adequacy of Fair Board's search for responsive records
In support of the position that a search for records responsive to Ms. Cash's March 16 request for her personnel file and "any and all other files or documents relating to [her] or [her] employment at the Kentucky Fair and Exposition Center" would impose an unreasonable burden on the Fair Board, the Board relies on 99-ORD-14. A copy of that decision is attached hereto and incorporated by reference. There an employee of the Kentucky Revenue Cabinet requested access to, inter alia, any and all documents, in whatever form, that contain[ed her] name or relate[d] to [her], including preliminary and other supporting documents, from January 1, 1993, to the present." The Cabinet denied this portion of her request, asserting that such records "may number in the thousands," and observing:
The statute recognizes that Open Records Requests may impose an impermissible burden on the agency. KRS 61.872(6). Included among those documents which mention your name are home address lists, birthday lists, E-mail messages, case filings, routine correspondence and a myriad of other documents. Unless you are able to narrow your request, it is virtually impossible for the agency to make a bona fide response to this request as it presently stands.
As in the appeal before us, the Cabinet produced for inspection and copying all reasonably identifiable records that were responsive to the employee's request, and identified, indexed, and withheld thirteen documents relating to a complaint the employee filed with the Equal Employment Opportunity Commission on the basis of KRS 61.878(1)(l) and KRE 503, the attorney-client privilege.
This office affirmed, concluding that the records to which the employee requested access were not identified with "reasonable particularity," nor were they of an identified, limited class. The Cabinet correctly noted that "such records may number in the thousands." Given the lack of specificity of this request, the Cabinet could not estimate the number of records it encompassed or the amount of time its employees would expend in locating, retrieving, and producing the records. Noting that in order to comply with the request, "the Cabinet would be required to review every record, regardless of physical form or characteristics, which was prepared, owned, used, in the possession of or retained by in [the specified four year period], to determine if [the employee's] name appears in or on the record or it relates to her," we concluded that, "[a]s framed, [the employee's] request imposes an unreasonable burden on the Cabinet." 99-ORD-14, p. 5.
Although Ms. Cash is employed at the Fair Board on a limited basis, as opposed to the Revenue Cabinet employee in 99-ORD-14, we believe that the appeal before is virtually indistinguishable from that decision. The Fair Board correctly maintains that her request for any and all files or documents that relate to her is as overbroad as the request for records in 99-ORD-14, and that as in that decision, a search for all responsive records would impose an unreasonable burden on the agency. 3 We agree. The fact that Ms. Cash specifically identified a series of records in her June 20 letter of appeal, such as time sheets, break sheets, payroll records, accountability sheets and monthly work schedules, provides clear proof that her original request could have been drawn with greater precision. We therefore affirm the Fair Board's disposition of this portion of her request. We do not believe that the Fair Board should be required "to conduct an exhaustive exhumation of records [citation omitted]" 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 [citation omitted]." 95-ORD-26, p. 5. The Fair Board has indicated that it will entertain a renewed request for the records identified in her letter of appeal. With respect to this issue, we do not believe that the Open Records Act requires more.
Attorney-client and work product privileges
Whether the Fair Board properly withheld all of the eleven documents identified in the privilege log, with their attachments, is a closer question. Clearly, the Fair Board is correct in asserting that denial of access to public records has been affirmed on the basis of the attorney-client and work product privileges in non-final caselaw and final open records decisions of this office. See, e.g., Theresa Hahn v. University of Louisville, 4 Ky. App., 2000 CA1296 (2001) Pet. for Disc. Review pending; Jerry Meriwether v. Lexington Fayette Urban County Government, 5 Ky. App., 2000 CA2050 (2002), Pet. for Disc. Review pending; 98-ORD-124; 99-ORD-14; 00-ORD-111; 01-ORD-246. These authorities also support the view that although a public employee is generally vested with a greater right of access to records relating to that employee, pursuant to KRS 61.878(3),6 that right is overridden by KRS 61.878(1)(l), incorporating the attorney-client and work product privileges into the Open Records Act.
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. Thus, "an agency can be a 'client' and agency lawyers can function as 'attorneys' within the relationship contemplated by the privilege." Id.
The work product doctrine is traced to the United States Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), and its rationale has been codified in state and federal rules of civil procedure. Kentucky Rule of Civil Procedure 26.02(3)(a) states:
Subject to the provisions of paragraph (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative (including attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. [Footnote omitted.]
See also FRCP 26(b)(c).
The question before us is whether all of the records identified in the privilege log qualify for exemption under the attorney-client or work product privileges. In our view, only those records that were generated by Mr. Carroll for the Fair Board in the course of defending the complaint Ms. Cash filed against the Board with the Kentucky Labor Cabinet, including records generated by Mr. Carroll relative to her open records requests, and for which adequate measures were taken to insure confidentiality, qualify for exclusion under the privileges. We do not believe that the protection afforded by these privileges extends to records prepared by the Labor Cabinet but attached to privileged attorney-client communications, or records prepared by Mr. Carroll but directed to the Labor Cabinet, rather than the Fair Board. See Jack Winter, Inc. v. Koratron Company, Inc., 54 FRD 44 (D.C. Cal. 1971) (patent case holding that documents written by or obtained from third parties, even though attached to communications seeking or giving legal advice, are not privileged) . It is the opinion of this office that the latter records do not constitute confidential communications from or to the Board's attorney made for the purpose of facilitating the rendition of professional legal services, or the mental impressions, conclusions, opinions, or legal theories of the Board's attorney.
We examine each of the entries in Mr. Carroll's privilege log below:
1. A letter dated December 19, 2000, from me to Mr. Workman which discusses an accompanying draft of a settlement agreement that is being proposed to resolve the unlawful termination complaint Ms. Cash had pending against the Fair Board at that time. The two-page letter goes into detail on my impressions of the proposal as well as my recommendations to Mr. Workman as to whether the Fair Board should enter into such an agreement and how to proceed if the agreement is rejected.
While we agree that the two page letter from Mr. Carroll to Mr. Workman qualifies as a protected communication, consistent with the reasoning set forth above we do not agree that the two page settlement agreement that was prepared by the Labor Cabinet, and that is attached to Mr. Carroll's letter, is similarly protected. 7
2. A one page letter from me to Mr. Workman dated December 22, 2000 that references an accompanying draft of a proposed settlement agreement with the Labor Cabinet that I prepared for his consideration regarding Ms. Cash's unlawful termination complaint.
Both Mr. Carroll's letter and the proposed settlement agreement he prepared, and that is attached, qualify for exclusion under the attorney-client and work product privilege.
3. A one page letter from me to the attorney for the Labor Cabinet dated December 27, 2000 which is accompanied by a draft of a proposed settlement that I prepared regarding the unlawful termination complaint filed by Ms. Cash with the Labor Cabinet.
Neither the one page letter nor the attachment qualify for exclusion inasmuch as they do not represent a communication with Mr. Carroll's client, the Fair Board, and dissemination to an outside agency, namely the Labor Cabinet, is inconsistent with the requirement of confidentiality.
4. A one page letter dated April 5, 2001, from me to Mr. Workman in which I refer to copies of a letter and a proposed settlement agreement from the Labor Cabinet regarding Ms. Cash's unlawful termination complaint. The letter contains my impressions of the proposed settlement offer and recommendations to Mr. Workman as to whether to accept or reject the agreement.
While we again agree that the one page letter from Mr. Carroll to Mr. Workman was properly withheld as a privileged communication, we do not agree that the Labor Cabinet's letter to Mr. Carroll and the Cabinet's proposed settlement agreement, both of which were attached to Mr. Carroll's letter, are privileged.
5. A one-page draft of a letter dated April 12, 2001 that I prepared on behalf of Mr. Workman at his request and for his consideration as a possible response to an open records request made by Ms. Cash.
6. A three page handwritten draft of a letter I prepared at Mr. Workman's request and for his consideration as a possible response to an open records request from Ms. Cash.
Both draft responses prepared by Mr. Carroll on behalf of his client, the Fair Board, represent protected attorney-client communications/work product and were properly withheld.
7. A two-page letter from me to Mr. Workman dated June 1, 2001. The letter contains my impressions of the then current proposed settlement agreement made by the Labor Cabinet to resolve the complaint filed by Ms. Cash. The settlement agreement and cover letter from the Labor Cabinet accompanied my letter. I also included in the letter my recommendations to Mr. Workman on how to respond to the proposed settlement.
Again, we agree that Mr. Carroll's letter to Mr. Workman qualifies for exclusion from inspection under the attorney-client privilege, we do not agree that the privilege extends to either of the attachments to Mr. Carroll's letter which were authored by Labor Cabinet employees.
8. A two-page letter from me to Mr. Workman dated June 4, 2001. The letter contains additional impressions of mine regarding the pending settlement agreement. I also included recommendations as to how to proceed if Mr. Workman decides to reject the proposed settlement.
This letter was properly withheld under the attorney-client privilege.
9. A one page letter dated November 29, 2001 from me to Mr. Workman in which I referenced enclosed copies of the settlement agreement and notice and motion to withdraw a notice to contest a citation that had been filed against the Fair Board by the Labor Cabinet regarding the lead paint allegation. The letter also contains information as to how to pay for the fine being assessed against the Fair Board. Ms. Cash was named as a party to that action so the pleadings include her name.
Only the letter directed to Mr. Workman qualifies for exclusion under the attorney-client privilege. The remaining records consist of a letter from Mr. Carroll to the Governor's Office for Policy and Management, and pleadings submitted to the Occupational Safety and Health Review Commission, and do not qualify as protected communications since they were, again, disseminated to outside agencies.
10. A two page letter dated January 7, 2002, from me to Mr. Workman again referencing enclosed copies of the settlement of the lead paint allegation against the Fair Board by the Labor Cabinet. The letter also contains my impressions to Mr. Workman as to the possible legal procedures remaining in the settlement process.
Again, only Mr. Carroll's two page letter to Mr. Workman was properly withheld. Because the attached Stipulation and Settlement Agreement, Notice and Motion to Withdraw Notice, and cover letter were prepared by the Labor Cabinet, they are not protected from disclosure.
11. A one page e-mail and a two page attachment of a draft of letter I prepared at the request of Mr. Workman for his consideration as a possible response to the complaint filed by Ms. Cash with the Labor Cabinet.
Mr. Carroll's email communication qualifies for exclusion as privileged attorney-client communication, and the draft letter as privileged work product.
We acknowledge the possibility that some of the referenced attachments were disclosed to Ms. Cash when she was afforded access to the "file regarding [the] complaint [she] filed with the Kentucky Labor Cabinet regarding her employment at the Fair Board." If they were not, however, we do not believe that the Fair Board's liberal construction of the privileges is legally supportable. We recognize that examinations of attorney-client and work product privileges depend on the facts and circumstances of each particular case. Richards v. Lennox Industries, Inc., 574 So.2d 736 (Ala. 1991); People v. Deutsch, 624 N.Y.S. 533 (N.Y. 1994) (determination as to whether communication is protected under attorney-client privilege depends on the particular facts and circumstances of each case). However, as noted above, the records deemed nonprivileged do not represent confidential communications between the Fair Board and Fair Board counsel, and do not acquire this status by having been affixed to otherwise privileged communications. To hold otherwise would create the potential for abuse of the privileges by public agency counsel intent on shielding non-privileged communications from disclosure. We have no reason to believe that this was the Fair Board's intent in the instant appeal. Nevertheless, in the interest of promoting the clearly articulated goal of public access, and having considered the facts and circumstances of this particular case, we conclude that the elements of the privileges are not present in those records deemed non-privileged.
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.
Joan F. Cash10328 Keystone TraceLouisville, KY 40223
Barbara Burkhead WhitleyKentucky Fair and Exposition CenterP.O. Box 37130Louisville, KY 40233-7130
Harold WorkmanKentucky Fair and Exposition CenterP.O. Box 37130Louisville, KY 40233-7130
Richard Carroll700 Capitol AvenueCapitol Building, Ste. 118Frankfort, KY 40601
Footnotes
Footnotes
1 Ms. Whitley noted that because Ms. Cash was not a full or part time state employee under the provisions of Chapter 18A of the Kentucky Revised Statutes, her file was "not as detailed as a personnel file maintained for a full or part time employee."
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2 KRS 61.872(6) provides as follows:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
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3 Resolution of this issue in favor of the Fair Board does not turn solely on the use of the language "any and all" in Ms. Cash's request. A request for any and all records may be a sufficiently clear and direct request if the requester narrows its scope by identifying a specific subject and, if possible, a specific time frame. See, 98-ORD-167 (holding that request for all policies relating to revocation of supervised placement hearings authorized by KRS 635.100 satisfied the standard of specificity required for on-site inspections) . Simply stated, the appearance of this language in an open records request does not automatically relieve the agency of its duty to conduct a search. As in all matters not directly addressed by the Open Records Act, we apply a reasonableness standard. We do not think it reasonable to expect the Fair Board to scrutinize every document generated in a five to six year period to locate records containing Ms. Cash's name or arguably relating to her.
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4 In Hahn, the court was persuaded that the contested communications, exchanged by University counsel and University employees for the purpose of providing legal services to the University, qualified for exclusion under KRE 503(b)(1) as communications between a representative of the client and the client's lawyer, and that there was adequate proof that sufficient measures were taken to insure confidentiality. Further, the court found that the privilege overrides KRS 61.878(3) as it relates to a public employee's right of access to any record relating to him.
5 In Meriwether, the court held that records created by an attorney for the Lexington Fayette Urban County Government, in the course of his investigation of an urban county program on behalf of the urban county government, were shielded from disclosure by the attorney-client and work product privileges, and that these privileges overrode an urban county government employee's right, under KRS 61.878(3), to any such records that related to him.
7 With respect to all other open records requester, this draft settlement would qualify for exclusion under KRS 61.878(1)(i). Because KRS 61.878(3) specifically states that as a public agency employee Ms. Cash is entitled to "any record including preliminary and other supporting documentation, that relates to [her]," the draft settlement must be disclosed.
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