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 Lexington-Fayette Urban County Government (LFUCG) violated the Open Records Act in responding to the open record requests of John R. Rhorer, Jr. for certain records from LFUCG. For the reasons that follow, we conclude that the LFUCG's responses were consistent in part and inconsistent in part with the Open Records Act.
In this appeal, the parties have been involved in several exchanges of requests and responses, inspections, and narrowing of the records sought by Mr. Rhorer. In his letter of appeal, Mr. Rhorer identified the following two requests that are currently at issue: (1) the actual billing statements/invoices issued by outside counsel, Mr. Tony Martin and Ms. Mary Ann Delaney, relating to the efforts by the LFUCG to challenge the private sale of Kentucky American Water Company to RWE and to see condemnation of the water system in Fayette County; and (2) copies of "all correspondence between any agent, representative or employee of the LFUCG and any representative, agent, officer or employee of FLOW and relating specifically to the Kentucky Public Service Commission proceedings regarding the sale of the American Water Company to Thames Water and/or relating to any litigation pertaining to said sale." 1
We address first the LFUCG's partial denial of the request for copies of the actual billing statements or invoices issued by outside counsel Tony Martin and Mary Ann Delaney. In response to this request, Michael Sanner, Corporate Counsel, LFUCG, advised Mr. Rhorer that "the billing statements are open for public inspection and will be available to you: however, the portion of the billing statements which reflect a description of the work performed will be redacted from the documents pursuant to the attorney-client privilege (SCR 3.130(1.6)) and the attorney work product doctrine (CR 26.02(3) and KRS 422A.0503.)" Mr. Sanner further explained that the cited sections were incorporated into the Open Records Act by KRS 61.878(1)(l) which exempts from public inspection "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
In a subsequent letter to Mr. Rhorer, Mr. Sanner advised in relevant part:
. . . In compliance with the Open Records Act, the Government provided copies of attorney billing records setting forth (1) the name of the timekeeper; (2) the hourly rates and amounts billed; and the amount of time spent on each task performed . . . .
Mr. Sanner reiterated that the information redacted from the billing statements were exempt from disclosure under the authorities set forth in his original response. He further explained:
The documents previously provided to you contain the general nature of the services rendered regarding Tony Martin's scope of work for the Urban County Government of matters before the PSC regarding the acquisition of Kentucky-American Water by RWE. To a much lesser extent other PSC issues are Kentucky-American's request for increased security costs and the long term water supply deficiency in central Kentucky. Mr. Martin initially advised the Government on the PSC aspect of purchasing the water company.
Documents provided for your inspection indicate the general nature of Mary Ann Delaney's engagement for the proposed acquisition of Kentucky-American Water Company by the Urban County Government.
We affirm the LFUCG's partial denial of the requests for the actual billing statements. The agency complied with the Open Records Act and prior decisions of this office by providing redacted copies of the statements that provided (1) the name of the timekeeper; (2) the hourly rates and amounts billed; and (3) the amount of time spent on each task performed, along with a description of the general nature of the legal services rendered.
In 01-ORD-56, in discussing redaction of portions of attorney billing records, this office stated:
In OAG 92-14, the Attorney General held that records of payments made to attorneys by a public agency, and bills and statements submitted to the agency by its attorneys, should be made available for inspection. Relying on OAG 82-169 and OAG 85-91, we also held that records which reflect the general nature of legal services rendered are not exempt. Only those records, or portions of records, which disclose substantive matters protected by the attorney-client privilege, and are exempt under KRS 61.878(1)(l), can properly be withheld. [The agency] was therefore obligated, pursuant to KRS 61.878(4), to separate the exempt material from the nonexempt material, and release the latter for inspection.
In an attempt to provide additional guidance to public agencies relative to a determination of what may properly be withheld under KRS 61.878(1)(l) and the attorney-client privilege found at KRE 503, this office subsequently observed:
OAG 92-92, p. 6.
In his response to this office, Mr. Sanner stated that the description of legal services in the billing statements contained privileged attorney-client communications and the mental impressions of legal counsel and argued that "[p]ublic release of legal descriptions of attorney statements such as these in pending litigation would severely compromise any government agency by giving its adversary insight into its attorneys' thought process and legal strategy."
Thus, LFUCG exercised its prerogative to redact information from its attorney billing records that would disclose substantive matters protected by the attorney-client privilege (SCR 3.130(1.6)) and the attorney work product doctrine (CR 26.02(3) and KRS 422A.0503), in tandem with KRS 61.878(1)(l). Both the courts and this office have recognized these privileges in the context of an open records dispute where all the elements of the privileges are present. 03-ORD-042. See Hahn v. University of Louisville, 80 S.W.3d 771 (2001); 01-ORD-246. Moreover, the LFUCG described, in general terms, the general nature of the legal services rendered. Accordingly we affirm the agency's actions in this regard.
We do not agree with the LFUCG's position that an agency can withhold release of attorney billing statements until the pending litigation is ended. This position was rejected in 95-ORD-81. In that appeal, the agency maintained that records of payments to attorneys could be withheld while litigation was pending. Addressing this issue, at pp. 2 and 3, we stated:
. . . This position was soundly rejected in OAG 92-14 and OAG 92-92, copies of which are attached hereto and incorporated by reference. In OAG 92-14, p. 6, we observed:
Thus, attorney billing records are privileged only if their disclosure would reveal confidential communications between the attorney and client and should be available for inspection, subject to possible redactions discussed above, even during the existence of pending litigation. OAG 92-92; OAG 92-14; 95-ORD-18. See also, 99-ORD-212.
Next we address the LFUCG's denial of access to correspondence between representatives of FLOW and employees or representatives of LFUCG that it was able to locate, under authority of KRS 61.878(1)(i). In its response to this office on this issue, Mr. Sanner advised:
The LFUCG did identify one individual who represents FLOW who corresponds with the LFUCG. The attorney representing FLOW corresponds with the LFUCG by e-mail. This correspondence includes drafts of pleadings, suggestions and formulation of opinions on issues, all in preliminary form. The Attorney General has stated that predecisional documents are exempt from inspection (including correspondence) except when they are incorporated into final agency action. 96-ORD-72. Any correspondence with FLOW that has given notice of final agency action has been made available to Mr. Rhorer.
KRS 61.878(1)(i), authorizing nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
In 00-ORD-168, this office held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence with private individuals," is generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168, p. 2. 02-ORD-86.
We believe the correspondence in question here, i.e., "drafts of pleadings, suggestions and formulation of opinions on issues, all in preliminary form" from the attorney representing FLOW falls within this narrow category of records in which there would be expressions of opinion and candor and an expectation of confidentiality and are exempt from disclosure under KRS 61.878(1)(i) . Accordingly, we conclude that the LFUCG properly denied this portion of Mr. Rhorer's request. However, if any of these predecisional records are incorporated into final agency action, they would lose their preliminary character and would be subject to disclosure. 96-ORD-42.
In his response to this office, Mr. Sanner stated that LFUCG "did make available for inspection all correspondence which did give notice of final action of a public agency. " In his reply to this office, Mr. Rhorer disputes this, stating that LFUCG had not provided him with any correspondence pursuant to his request.
In OAG 89-81, the Attorney General stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records Mr. Smith asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
The parties should continue to cooperate to resolve any differences or misunderstandings related to records sought by Mr. Rhorer.
Finally, Mr. Rhorer in his reply to this office indicated that the only documents that the LFUCG was willing to share with him were pleadings filed with the Public Service Commission and rather than providing him copies of those pleadings he was referred to the files of the Public Service Commission.
In this regard, LFUCG, in its June 2, 2003 response to Mr. Rhorer, advised:
Documents which are not exempted by the above-referenced section are pleadings electronically filed with the Public Service Commission. These are public records and may be accessed at http://psc.ky.gov/pschome.htm, cases # 2002-0018 and # 2002-00317.
KRS 61.872(3)(a) and (b) states:
(3) A person may inspect the public records:
In construing KRS 61.872(3)(a) and (b), the Attorney General has observed:
The statute . . . contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail . . . . [w]e believe that the legislature, in using this language, intended to facilitate the broadest possible access to public records . . . . Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. [But] a requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency.
96-ORD-186, p. 3.
Thus, a requester is entitled to access to public records either by on-site inspection or may receive copies through the mail if he precisely describes the records. Although LFUCG provided Mr. Rhorer with the option to access the records by getting them on the Public Service Commissions website, he is entitled to access to the records by on-site inspection or copies of the records of precisely described records, if he so chooses. However, the agency may require advance payment of copying fees, including postage where appropriate, prior to mailing the copies. KRS 61.874(1).
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.
John R. Rhorer, Jr.1112 Chinoe RoadLexington, KY 40502
Michael SannerCorporate CounselLFUCG200 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 This quoted language was Mr. Rhorer's original request. LFUCG, pursuant to KRS 61.872(6), denied this request on the basis that it was not a properly framed open records request and that to search emails, letters, memoranda, telephone message logs, notes, meeting calendars and schedules of between 2,500 and 3,000 LFUCG employees would create an unreasonable burden on the Government. Subsequently, Mr. Rhorer further narrowed his request to documents covering a period of time from November 1, 2001 to the present and stated he believed most correspondence would come from the Office of the Mayor, the Law Department, and the Department of Public Works. In response to this narrowed request, LFUCG, quoting KRS 61.878(1)(i), which exempts from inspection "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final agency action of a public agency, " denied the request stating that "most of the documents located are exempted by this section and will not be provided to you." As a result, Mr. Rhorer initiated the instant appeal. In a response to this issue on appeal, LFUCG reiterated its argument that the request was an "impermissible blanket request," was "unduly burdensome," and sought to "inspect materials that are clearly exempt under KRS 61.878(1)(i)." LFUCG argued that for Mr. Rhorer "to properly proceed with this request," he would need to "identify specific persons within FLOW whose correspondence with LFUCG he seeks to inspect. " In a reply to LFUCG's response, and in an effort to further refine his request, Mr. Rhorer limited his request to "communications between the mayor's office, the legal department and the public works department" and "with FLOW or its representatives/agents, Foster Ockerman, Jr., Governor Edward T. Breathitt, Brad Cowgill and/or Latoi Mayo." Because the LFUCG has not yet responded to this last narrowed request, the issues relating to unreasonable burden and improperly framed requests are not ripe for adjudication and will not be addressed in this appeal.
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