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 Justice Cabinet violated the Open Records Act in denying Courier-Journal staff writer Jim Malone's request for records relating to former employee Dr. Mark LeVaughn on the basis of KRS 61.878(1)(l) incorporating the attorney-client privilege and work product doctrine into the Open Records Act, and on the basis of KRS 61.878(1)(h). For the reasons that follow, we find that the Cabinet failed to meet its statutory burden of proof in sustaining the blanket denial of Mr. Malone's request.
By letter dated January 29, 2003, Mr. Malone requested access to:
(1) Any and all documents in whatever form that concern the job performance and termination of Mark LeVaughn as a medical examiner for Western Kentucky in 2002. This would include any investigations, reports, notes of interviews or telephone conversations, emails, memos, dispositive correspondence, complaints, communications or other records that deal with Mark LeVaughn's job performance, his fitness to perform autopsies, his qualifications, his conduct.
(2) Copies of any complaints you have received about Mark LeVaughn.
On February 3, 2003, Justice Cabinet Deputy Secretary Barbara W. Jones denied Mr. Malone's request advising him as follows:
Dr. Levaughn [sic] has retained counsel who has contacted us by letter, seeking to resolve some matters. As it now appears that this case may be moving towards civil litigation, I am denying your request pursuant to attorney-client and work product privileges. See KRS 61.878(1)(l) and KRE 503. Further, I have requested that the Kentucky State Police begin an investigation of Dr. Mark Levaughn [sic], and that investigation is presently ongoing and not yet complete. Therefore, I am also denying your request pursuant to KRS 61.878(1)(h), which exempts from disclosure "records of law enforcement agencies . . . compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by . . . premature release of information to be used in a prospective law enforcement action. "
Shortly thereafter, Mr. Malone initiated this appeal asserting that "[s]tate law does not allow records to be withheld because litigation might be filed, or is being contemplated or discussed. There is/was no litigation at the time this request was filed and it should be honored to the extent that [the cabinet is] able to produce responsive records."
In supplemental correspondence directed to this office following commencement of Mr. Malone's appeal, Deputy General Counsel Karen Quinn elaborated on the Cabinet's position. With reference to the Cabinet's invocation of KRS 61.878(1)(l) and the attorney-client privilege and work product doctrine, she explained that Dr. LeVaughn:
has retained an attorney who has contacted this office in an effort to resolve an outstanding matter. As this matter is still in the preliminary stages, and Dr. LeVaughn's retention of legal counsel indicates a strong possibility he is contemplating litigation, this office denied Mr. Malone's request pursuant to attorney-client and work product doctrines.
With reference to the Cabinet's invocation of KRS 61.878(1)(h), Ms. Quinn explained that the Kentucky State Police are conducting an investigation of Dr. LeVaughn at the Cabinet's request. Continuing, she observed:
The trooper who has begun the investigation has told me that he would object to the disclosure of this matter at this time, as it would harm the investigation. Therefore, Mr. Malone's request was also denied pursuant to KRS 61.878(h) [sic] as "records of law enforcement agencies compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by . . . premature release of information to be used in a prospective law enforcement action. " This case meets all three required elements for the ongoing investigation exemption: 1) an organization must be a law enforcement agency 2) investigating statutory or regulatory violations and 3) the release would harm the agency. Both the Justice Cabinet and its agency, the Kentucky State Police, qualify as law enforcement agencies. I made my request for KSP to investigate Dr. Levaughn [sic] for fear that statutory or regulatory violations may have been committed. And the KSP trooper has stated that the release of the information would harm the investigation, and, thereby, the agency.
On these bases, she reaffirmed the Cabinet's denial of Mr. Malone's request.
To facilitate our review of the issues on appeal, and pursuant to KRS 61.880(2)(c), on February 10, 2003, this office asked that the Cabinet furnish us with copies of "all records that are responsive to Mr. Malone's request." The Cabinet did so on February 17, 2003, providing us with "all documents in Justice Cabinet files which are even remotely responsive to the open records request of Courier-Journal staff writer Jim Malone for all documents 'concern[ing] the job performance and termination of Mark LaVaughn [sic] as a medical examiner for Western Kentucky in 2002,'" and reasserting "the attorney-client and work product privileges, KRS 61.878(1)(l), as well as the open investigation exception, KRS 61.878(1)(h) . . . ." Although we cannot disclose the contents of these records, we can describe them, in general terms, as records consisting of: 1) The set of all records relating to Dr. LeVaughn maintained by the Cabinet (including what appears to be his complete personnel file, investigative files, files relating to consultations and consultation fees, an abbreviated case file containing his deposition in Minger v. Murray State and ostensibly unrelated records involving an incident at Cardinal Treatment Center, and open records requests and other correspondence relating to Dr. LeVaughn); 2) the smaller subset of records that are responsive to Mr. Malone's request (including records relating to his dismissal and records relating to his job performance and qualifications); and 3) the even smaller subset of records, within the subset of records responsive to Mr. Malone's request, that actually qualify for exclusion under KRS 61.878(1)(h) and KRS 61.878(1)(l), incorporating the attorney-client privilege and work product doctrine into the Open Records Act. Our analysis of the propriety of the Justice Cabinet's invocation of these exemptions to support nondisclosure of the records produced by the Cabinet in response to our KRS 61.880(2)(c) request follows.
Before proceeding to this analysis, we remind the Cabinet that KRS 61.880(1) establishes guidelines for agency response to an open records request. That statute provides, in relevant part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2)(c) expressly provides:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
Read together, these provisions mandate an agency response that contains "particular and detailed information" and not a "limited and perfunctory response . . . ." Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). An exemption not invoked by an agency in its response to an open records request is an exemption waived by the agency when its denial is appealed to the Attorney General. In support we note that in an early open records opinion, as well as in succeeding opinions, this office determined that KRS 61.878(1) does not mandatorily direct that all records which fall under the exemptions must be upheld. OAG 79-275. There, we observed:
In 73 Am.Jur.2d Statutes (( 19-27 there is a discussion of mandatory and directory statutes. This treatise states that a statute which uses the word "shall" or "must" is usually considered to be mandatory in its effect while the word "may" is usually understood to be permissive or directory, but this rule is not absolute. "There are cases in which words of a statute, which are generally regarded as mandatory, are nevertheless given a directory or permissive meaning, in order to give effect to the legislative intent. Thus, a legislative intention that the word 'shall' is to be construed as permissive may appear from the spirit or purpose of the act, or from the connection in which it is used or the relation into which it is put with other parts of the same statute." 73 Am.Jur.2d Statutes ( 25.
We believe that when KRS 61.878(1) says "the following public records are excluded . . . and shall be subject to inspection only upon order of a court . . .", that the legislative intent was permissive and not mandatory. The exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. An official does not have to be concerned with whether a record should be released or not, but only concerned with whether he may justifiably withhold a record from public examination.
OAG 79-275, p. 2. In sum, the exemptions "are a shield and not a shackle," and agencies may, in their discretion, waive an exemption and release otherwise exempt public records.
Further, we remind the Cabinet that because the agency is statutorily assigned the burden of proof, it must not only cite the relevant exemption or exemptions authorizing nondisclosure, but must explain the application of the exemption or exemptions to the records withheld. 95-ORD-3 (holding that the "mere invocation of an exemption, without an adequate explanation of how the exemption applies to the record withheld, does not satisfy the burden of proof, imposed on the agency under KRS 61.880(2)(c)"). Moreover, "the basis for denial must . . . be articulated in terms of the requirement of the statute." Id., citing OAG 89-20. This is particularly true when the agency relies upon KRS 61.878(1)(h), expressly providing that that exemption "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884," and KRS 61.878(1)(l), incorporating privileges which "must be strictly construed and given no greater application than is necessary to further [their] objectives." R. Lawson, Kentucky Evidence Law Handbook, ( 5.10 at 232 (1993).
Finally, we remind the Cabinet that an agency to which a request has been directed, but which cannot satisfy the request due to the nonexistence of the records requested, must advise the requester in writing that no responsive records exist. 02-ORD-163. On this issue, the Attorney General recently observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. [Citations omitted.]
02-ORD-163, p. 3, citing 02-ORD-144, p. 3. Guided by these longstanding principles, we proceed to our analysis of the Cabinet's denial of Mr. Malone's request.
As noted, pursuant to KRS 61.880(2)(c) this office asked that the Cabinet provide us with copies of "all records that are responsive to Mr. Malone's request." The Cabinet responded by providing us with "all documents in Justice Cabinet files which are even remotely responsive to the open records request of Courier-Journal staff writer Jim Malone for all documents 'concern[ing] the job performance and termination of Mark LaVaughn [sic] as a medical examiner for Western Kentucky in 2002.'" For reasons that will be explained below, it is apparent that not all of the "remotely responsive" records produced qualify for exclusion under KRS 61.878(1)(h) or KRS 61.878(1)(l), incorporating KRE 503 and CR 26.02(3)(a).
Within this broad set of all records maintained in Justice Cabinet files relating to Dr. LeVaughn, which were produced for this office's inspection pursuant to KRS 61.880(2)(c), there is a narrow subset of records that are clearly responsive to Mr. Malone's request. These include his application for employment reflecting his qualifications for the position of medical examiner, correspondence and email exchanged with the Office of General Counsel relating to Dr. LeVaughn's conduct and the performance of his duties as medical examiner, memoranda prepared by the Office of General Counsel relating to his employment and dismissal, investigative records generated in advance of, and following, his dismissal, and his letter of termination and correspondence relating thereto. No support exists for the Cabinet's refusal to afford Mr. Malone access to Dr. LeVaughn's application for employment 1 or the letter notifying him of his termination. Such records do not enjoy unique protection simply because litigation may be threatened or an investigation has been launched. See, e.g., 00-ORD-137 (holding that "inspection of an employment application or resume must be permitted regarding work experience and educational levels attained . . . that are reasonably related to qualifying for public employment") and 00-ORD-104 (declaring that "given the compelling public interest in disclosure, termination letters must be made available for public inspection" ).
Within this narrow subset of records produced by the Cabinet that are clearly responsive to Mr. Malone's request, there is an ever narrower subset of records that qualify for exclusion under KRS 61.878(1)(h) and KRS 61.878(1)(l), incorporating the attorney-client privilege and work product doctrine. We analyze first those records which may arguably be withheld under KRS 61.878(1)(h).
Both the Justice Cabinet and this office are on familiar ground in interpreting KRS 61.878(1)(h). That exemption authorizes public agencies to withhold:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In a recent decision directed to the Justice Cabinet, this office examined the requirements of KRS 61.878(1)(h), and determined that the Cabinet failed to make a sufficient showing that the record in dispute, a Computer Investigation Report prepared by the Governor's Office of Technology, was a record "compiled in the process of investigating statutory or regulatory violations" or that disclosure of the report would harm the Cabinet "by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication." A copy of that decision, 03-ORD-015, is attached hereto and its legal reasoning incorporated by reference. 2 Ultimately, this office concluded that the Cabinet failed to articulate the basis for denying access to the GOT report in terms of the requirements of KRS 61.878(1)(h).
This office has recognized, on more than one occasion, that where there is concurrent jurisdiction between two agencies, and they both have an interest in the matter being investigated, the records of one agency may be withheld under authority of KRS 61.878(1)(h), notwithstanding the fact that it has concluded its investigation, if premature disclosure of its investigative records will harm the ongoing investigation of the other agency. 97-ORD-52 (holding that the Cabinet for Public Protection properly relied on KRS 61.878(1)(h) in denying a request for lists and inventories of evidence taken from persons suspected of violating alcoholic beverage control laws, although its internal investigation was concluded, because it had turned the lists and inventories over to the Attorney General, the lists and inventory were part of the Attorney General's ongoing investigation, and the Attorney General advised that premature disclosure would harm the investigation and prospective law enforcement action "by divulging information to subjects yet to be interviewed . . ."). See also, OAG 90-116 and 02-ORD-146. In such cases, however, the requirements codified at KRS 61.878(1)(h) are not relaxed, and it is incumbent on the agency resisting disclosure of the requested records to "provide particular and detailed information" and to articulate the basis for denying access to the specific documents requested in terms of the requirements of that exemption.
This position applies with equal force to records withheld under authority of KRS 61.878(1)(l), incorporating the attorney-client privilege and work-product doctrine. Both the courts and this office have recognized these privileges in the context of an open records dispute where all of the elements of the privileges are present. See Hahn v. University of Louisville, Ky.App., 80 S.W.3d 771 (2001); 01-ORD-246. Nevertheless, at pages fourteen through eighteen of the latter decision, a copy of which is attached and its reasoning incorporated by reference, the Attorney General recognized that a public agency "cannot withhold every document that relates to a particular matter under KRS 61.878(1)[(1)] and the attorney-client/ work-product doctrine simply because it is represented by an attorney in the matter." 01-ORD-246, p. 17, citing OAG 91-109 and OAG 88-25. Similarly, in 03-ORD-015, referenced above, we reminded the Justice Cabinet that there is no "litigation" or "residual" exception that can be invoked by an agency solely because it is engaged in litigation, or in this case, threatened litigation. There, we emphasized that the attorney-client privilege and work product doctrine could not "be invoked absent a showing that each of the elements of KRE 503 or CR 26.02 are present," and noted that the Cabinet had made "no such showing relative to the disputed [GOT] report." Id. at 6.
The Justice Cabinet has produced a substantial quantity of records and asserted that all are at least "remotely responsive to the open records request of Courier-Journal staff writer Jim Malone . . . ." Having failed to provide "particular and detailed information" in response to Mr. Malone's request, or in its supplemental responses to this office, the Cabinet must now provide particularized justification for nondisclosure of the narrowest subset of records, namely those that are both responsive to Mr. Malone's request and which qualify for exclusion under KRS 61.878(1)(h) and (l), incorporating the privileges upon which it relies. In Edmondson v. Alig, above, Kentucky's Court of Appeals declared that "[t]he language of the statute directing agency action [KRS 61.880(1)] is exact." Amplifying on this view, the Attorney General has stated:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U. S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6. In the cited decision, this office suggested, by way of example, that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal,' and deny access on the basis of KRS 61.878(1)(l) and KRE 503 as privileged lawyer client communication which was not disclosed to third persons." 97-ORD-41, footnote 2, p. 7. With reference to records withheld under KRS 61.878(1)(h), the Cabinet might, for example, characterize one or more of the records withheld as the investigative report prepared by its investigator, and witness interviews conducted by that investigator, relating to allegations of misconduct by Dr. LeVaughn, the disclosure of which would adversely impact KSP's ongoing investigation and compromise enforcement action.
The Attorney General has further opined:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on unreasonably burdensome requests,] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, p. 12. We find that the Justice Cabinet did not meet its statutory burden of proof in sustaining the blanket denial of Mr. Malone's request. The Cabinet did not identify the documents, or groups of documents, withheld or adequately explain how the exemptions relied upon apply to those records. The Cabinet's reliance on these exemptions may not have been entirely misplaced, but it failed to provide sufficiently detailed information in response to Mr. Malone's request. We therefore find that although the Cabinet may withhold those records which qualify for exclusion under the cited exemptions, it is obligated to disclose any other nonexempt records produced in response to this agency's KRS 61.880(2)(c) request, and to identify in general terms, as suggested above, the records withheld and articulate the reasons for withholding those remaining responsive records in terms of the requirements of the exemptions.
In addition, and consistent with the position set forth above, the Cabinet must advise Mr. Malone, in writing, if no records exist that are responsive to his request. Our review of the records produced discloses no complaints filed against Dr. LeVaughn and no documents of an evaluative nature, such as peer review or other performance evaluation records. Because the Justice Cabinet's "inability to produce records due to their nonexistence is tantamount to a denial, . . . it is incumbent on the [Cabinet] to so state in clear and direct terms." 02-ORD-163, p. 3. If after thirty days, as provided for in KRS 61.880(5)(c), the Justice Cabinet has not resolved this records access dispute in the manner described above, or appealed this decision to the appropriate circuit court, Mr. Malone will be entitled to full access to the records produced for in camera inspection by this office under authority of KRS 61.880(2)(c), and need only petition the circuit court to enforce this decision and his rights.
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:
Jim Malone, Staff Writer The Courier-Journal Western Kentucky Bureau1912 Jefferson StreetPaducah, KY 42001
Barbara W. Jones, Deputy SecretaryKY Justice Cabinet Bush Building, Second Floor403 Wapping StreetFrankfort, KY 40601-2638
Karen QuinnKY Justice Cabinet Bush Building, Second Floor403 Wapping StreetFrankfort, KY 40601-2638
Footnotes
Footnotes
1 Although not specifically raised by the Cabinet, we urge it to review this record prior to disclosing it to Mr. Malone in order to redact sensitive personal information such as social security numbers. See Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994) and 03-ORD 034 authorizing nondisclosure of this information.
2 The Justice Cabinet has appealed 03-ORD-015 to the Franklin Circuit Court and that appeal is pending.