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 Natural Resources and Environmental Protection Cabinet violated the Open Records Act in the disposition of three open records requests, made on September 16, 2002, by Ron Pauley for various records relating to a disciplinary action taken against him by the agency. For the reasons that follow, we conclude that the agency properly withheld records protected by the attorney-client privilege, under authority of KRS 61.878(1)(l) and KRE 503, and substantially complied with the Act by affirmatively advising Mr. Pauley, in its response to the letter of appeal, that requested records not provided did not exist.
In his first request, Mr. Pauley asked for copies of the following records:
All documents, logs, memos, notes, e-mail traffic, correspondence, excel spread sheets, and all other writings generated by or for the Personnel Action Committee, from January 1999 to the date of this request, including but not limited to
In response to this request, Joy B. Morgan, Director, Division of Administrative Services, informed Mr. Pauley that five pages of records relating to his request were available for copying. In denying the remainder of his request, Ms. Morgan advised:
In response to this Open Records Request, the following records are specifically exempt from disclosure pursuant to KRS 61.878(1)(l):
In his second request, Mr. Pauley asked for copies of the following records:
I request pursuant to KRS 61.870 to 61.884 copies of all (as defined in the Kentucky Open Records Laws) records, documents, logs, memos, notes, e-mail traffic, correspondence, audio tapes, excel spread sheets, and other writings between any individuals, which in any way relates to me, including, but not limited to, any and all documents, witness statements, and/or other records which were received by or provided to or submitted to NREPC and/or the Personnel Action Committee in connection with the investigation into the July 17, 2002 incident, which in any way relate to or discuss me, and were prepared during the period June 16, 2002 to the date of this request.
In her response to this request, Ms. Morgan advised Mr. Pauley that the Cabinet had approximately 526 pages of records and seven audio tapes of witness interviews responsive to his request which would be made available to to him, including providing him with one record that was privileged, but denied access to one record, advising:
The following record is exempt from disclosure under KRS 61.878(1)(l) because it is a request for legal assistance and contains a response in which a legal opinion is expressed. It is exempt from disclosure due to the attorney-client privilege and KRE 503. However, the Cabinet specifically waives this privilege for this record only:
The following record is exempt from disclosure under KRS 61.878(1)(l):
This legal opinion is a record the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. These records are prohibited by KRE 503 from disclosure by attorney-client privilege, as well as attorney work product. The records are communication by Ms. Moorman relating to subject matter upon which her confidential, professional opinion was sought and contain the mental impressions of Ms. Moorman in anticipation of litigation.
In his third request, Mr. Pauley asked for copies of the following records:
I request pursuant to KRS 61.870 to 61.884 copies of all (as defined in the Kentucky Open Records Laws) records, documents, logs, memos, notes, e-mail traffic, correspondence, audio tapes, excel spread sheets, and other writings and or electronic material prepared, generated, received, or sent within the Office of Inspector General, which in any way relates to me, including, but not limited to, any and all documents, witness statements, and/or other records which were received by or provided to or submitted to OIG, and or between all the OIG office staff personnel, including the director, for the period of June 16, 2002 to the date of this request.
In response to Mr. Pauley's third request, Ms. Morgan advised that 11 pages of records were available for copying.
In his letter of appeal, Mr. Pauley states that he believes the Cabinet violated the Open Records Act "by claiming certain privileges and withholding documents, and by failing to tell me whether documents that I requested did or did not exist. In each of my requests, I cited KRS 61.878(3), which allows me to 'inspect and copy any record, including preliminary and other supporting documentation' , that relate to me." Specifically, Mr. Pauley argues:
Ms. Moorman has a dual role as both a member of the Cabinet's investigative body and as an attorney providing advice to the Cabinet Secretary on disciplinary matters. I question how the attorney-client privilege can be a basis for withholding documents that pertain to me, and why that privilege would be "specifically waived" for only one document (Cabinet response, page 3). Also, I question why notes taken during an investigation meeting are privileged. I did not receive any handwritten notes, but only one unsigned typed page. The Cabinet did not state whether such notes existed, except in reference to withholding Ms. Moorman's notes.
Regarding my first request, I believe the Cabinet's response is insufficient because I asked for many more documents relating to the PACT than I received (such as documents authorizing its formation and operation). The only document provided was a 5-page excerpt from a handbook entitled "Personnel Management Training for NREPC Managers." The Cabinet's response does not say whether the other PACT documents I requested exist or not.
Regarding my third request, the Cabinet's response does not state whether any documents prepared by the Executive Director, David Perkins, exist or whether they were withheld from me. Although Mr. Perkins is no longer a Cabinet employee, I assume his notes and other records pertaining to me exist somewhere in the Office of Inspector General.
After receipt of Notification of the appeal and a copy of the letter of appeal, C. Michael Haines, Deputy General Counsel, provided this office with a response to the issues raised in the appeal. In his response, Mr. Haines explained:
The first request, received at 10:51 a.m., on September 16, 2002, makes no mention of a relationship to his discipline problems. Rather, the request relates to the Personnel Assessment Coordination Team (PACT) activities in a given time period and not to him (A later request covered his problems). Therefore, he is not granted any relief by KRS 61.878(3) for the documents sought in that request. Documents covered by the attorney-client privilege are exempt from disclosure under KRE 503. See, KRS 61.878(1)(l).
The insertion of the theory of the "dual role" of the Cabinet attorney is a "red herring." The reason for her participation was to give legal advice on matters that came before the PACT. Her communications and work product are as protected for that body as for any other part of the Cabinet. Likewise, the "questioning" of the waiver of the privilege regarding one document and not others is also without merit. A client is free to waive privilege on as few, or as many, documents as it wishes.
Mr. Pauley's second request, received at 12:39 p.m., September 16, 2002, was directed to four (4) Cabinet employees and sought documents relating to the investigation conducted concerning the incident that resulted in Mr. Pauley's disciplinary action. This is the request for which a privileged document was identified and the privilege waived. There was also one document that was identified and the attorney-client privilege contained in KRE 503 was asserted. Again, Mr. Pauley relies upon KRS 61.878(3) to claim that the privilege was incorrectly asserted. As the Attorney General's Office noted in its Open Records Decision 02-ORD-168, there are four exceptions to the employee's rights to disclosure and KRS 61.878(1)(l) is one of them. KRE 503 has been recognized as a legislative enactment that attorney-client communications remain confidential. Therefore, the Cabinet's refusal to disclose the privileged document was proper and KRS 61.878(3) provides no relief for Mr. Pauley.
The second issue raised by Mr. Pauley pertains to the number of documents identified in response to his first Open Records Request. He complains that only one document, other than those covered by the privilege, was identified and that there was no statement that others did not exist. To the extent that the Cabinet's response did not make clear that these documents were the only ones responsive to his request, it is acknowledged herewith that no other documents exist that would meet the parameters of his request.
The third issue arises from his third Open Records Request, received at 12:46 p.m., September 16, 2002. It sought all documents sent, received, or created by the staff of OIG, which related to Mr. Pauley, for the time period from June 16, 2002 until the date of the request. He complains that no documents were specifically identified as having been created by the former Inspector General and whether they were withheld. If none were identified as being produced or withheld, then one can assume that none exist. There was no specific request from Mr. Pauley that would have led the Cabinet to believe that it had to specify that no documents created by the former Inspector General existed. To the extent that was necessary, it is herewith acknowledged that no such documents exist.
We are asked to determine whether the Cabinet's responses to the three requests violated the Open Records Act. For the reasons that follow, we conclude that the agency properly withheld records protected by the attorney-client privilege, under authority of KRS 61.878(1)(l) and KRE 503, and substantially complied with the Act by affirmatively advising Mr. Pauley in its response to the letter of appeal that other requested records not provided did not exist.
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 construing KRS 61.878(3), the Attorney General, in 97-ORD-87, p. 4, observed:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible[s] on a register." When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
(Emphasis added).
As a public agency employee, Mr. Pauley 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 Mr. Pauley if they relate to him.
However, in 96-ORD-40 this office affirmed the Cabinet for Human Resources' 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:
In seeking legal advice from Office of the Counsel, the Cabinet dealt with its attorneys as would any private party seeking counsel. To insure full and frank communication, the same assurance of confidentiality was necessary. Moreover, the attorney-client privilege has pervasive application, extending to legal matters of all types (civil and criminal) and not just to matters related to litigation. Kentucky Evidence Law Handbook, § 5.10 at 231. Clearly, the documents withheld were drafted and exchanged in the course of this attorney-client relationship in order to provide the Cabinet with advice on the legal considerations and ramifications of its actions, thus satisfying the first and second parts of the three part test.
It is equally clear that confidentiality was expected in the handling of these documents, and that attempt was made to insure that the information contained therein was protected from general disclosure. The Cabinet has continually maintained and asserted the attorney-client privilege with respect to these documents. It continues to do so up to the present. In our view, the Cabinet has affirmatively satisfied the third part of the test.
96-ORD-40, pp. 4, 5.
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 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:
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. 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.
In responding to Mr. Pauley's requests, the Cabinet, as noted in its responses set out above, provided him with an extensive number of records that pertained to him (526 pages of records and seven audio tapes in response to the second request and 11 pages of records in response to the third request). In partially denying the second request for all records relating to the July 17, 2002 incident that led to his suspension, the Cabinet denied access to a legal opinion, dated July 18, 2002 from staff attorney Leesa Moorman to the Deputy Secretary and the Secretary on possible disciplinary action of Mr. Pauley. The Cabinet withheld this record, under authority of KRS 61.878(1)(l) and KRE 503, explaining that it was a communication by Ms. Moorman relating to subject matter upon which her confidential professional opinion was sought and contained her mental impressions in anticipation of litigation. Under these facts, we conclude the Cabinet properly withheld access to this document. 1
Addressing Mr. Pauley's question of the Cabinet's waiver of the attorney-client privilege for one privileged document, the Cabinet correctly asserts that invocation of the privilege is up to the client and it may waive or invoke the privilege at its discretion. We find no error in the Cabinet's selective waiver of the privilege as to the one document.
We next address Mr. Pauley's argument that the Cabinet's initial responses failed to inform him as to whether the requested records did or did not exist. This office has consistently held that a public agency's response is deficient under the Open Records Act if it fails to advise the requesting party whether specific records identified in his or her request exist. OAG 86-38; 99-ORD-42. In OAG 86-38, we construed the obligation of the agency relative to a request to inspect records, commenting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
OAG 86-38, p. 3. Echoing this view, in OAG 90-26 we categorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
In its initial responses, the Cabinet failed to advise Mr. Pauley that no other records that are responsive to his requests exist. Under the line of authority cited above, the Cabinet's failure to advise the requester that requested records did not exist constituted a violation of KRS 61.880(1). However, this procedural error is mitigated by the Cabinet's response to the letter of appeal in which it affirmatively advised Mr. Pauley, particularly to records requested in his first request, and not provided, and records created by the former Inspector General, relative to his third request, did not exist.
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.
Ron Pauley4064 Palomar Blvd.Lexington, KY 40513
Joy B. MorganDivision of Administrative ServicesNatural Resources andEnvironmental Protection Cabinet4th Floor, Capital Plaza TowerFrankfort, KY 40601
Leesa MoormanOffice of Legal ServicesNatural Resources andEnvironmental Protection Cabinet5th Floor, Capital Plaza TowerFrankfort, KY 40601
Footnotes
Footnotes
1 In response to Mr. Pauley's first request, the Cabinet denied access to certain handwritten notes and e-mail transmissions of Staff Attorney Leesa Moorman, which it indicated contained legal opinions, conclusions, and advice rendered in confidence to Cabinet representatives and mental impressions of Ms. Moorman in anticipation of litigation and requests for legal assistance. The Cabinet advised Mr. Pauley these handwritten notes and e-mails did not pertain to him. Since denial of access to these records is not challenged by Mr. Pauley in his appeal, we do not address that issue in this appeal.
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