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 Louisville-Jefferson County Metro Government violated the Open Records Act in partially denying David Leightty's August 18, 2003 request for records relating to the renovation of the Louisville Galleria and other construction projects. For the reasons that follow, we affirm the Metro Government's denial of Mr. Leightty's request.
In his August 18 records application, which was directed to the "Louisville-Jefferson County Metro Government and its predecessor entities, " including "the former City of Louisville, the former Jefferson County, and all agencies associated with those governmental entities, " Mr. Leightty requested copies of seven categories of broadly described records relating generally to "any construction project for Marriott Hotels (or any company or entity of similar name) in the Louisville Jefferson County Area, in the past two years" and the renovation of the Louisville Galleria. At issue in this appeal is the Metro Government's disposition of his request for:
All legal opinions regarding the renovation of the Louisville Galleria and the financing of same, including but not limited to the legal opinion (s) given by any and all bond counsel who provided legal opinions to the City of Louisville regarding the renovation of the Louisville Galleria or issuance of bonds in connection with that project.
All documents indicating a determination regarding whether state or local prevailing wage legislation applies or applied to the renovation of the Louisville Galleria by, or under the auspices of, the Cordish Company or the Louisville Galleria LLC.
In a response dated September 5, 2003, 1 Assistant Jefferson County Attorney Kris M. Carlton denied Mr. Leightty access to the single record that was responsive to his request for "legal opinions regarding the renovation of the Louisville Galleria," consisting of an email communication from Louisville Metro Special Counsel Tina Heavrin to the Downtown Development Corporation, dated April 15, 2003, and in the custody of DDC, on the basis of "KRS 61.878(1)(j), which relates to preliminary memoranda in which opinions are expressed, or policies formulated or recommended, as well as attorney-client privilege." 2 Ms. Carlton denied Mr. Leightty's request for records relating to a determination regarding the applicability of state or local prevailing wage legislation on the basis that "[n]o records [were] found."
On appeal, Mr. Leightty asserts that because the attorney-client privilege "does not apply to action which is not 'legal services' even if the action is by an attorney," its application to Ms. Heavrin's email "is doubtful." It is his position that "the agency charged with representation of the Metro Government is . . . the Jefferson County Attorney" and that if Ms. Heavrin's email does not consist of a legal opinion but is instead "a directive or communicated a policy decision, the privilege will not apply." 3 In addition, Mr. Leightty requests that this office "clarify whether the responding agency has provided all [responsive records in the possession of other agencies of Metro Government . . . containing a determination whether prevailing wage statutes applied to the Galleria renovation project]." Because KRS 61.880(2)(a) does not authorize the Attorney General to "clarify" whether all responsive records have been produced, we focus instead on the adequacy of the agency's response to that portion of his request in terms of the requirements of KRS 61.880(1).
In supplemental correspondence directed to this office following commencement of Mr. Leightty's appeal, Ms. Carlton elaborated on the Metro Government's position. She explained:
Mr. Leightty himself has characterized the requested record as a "legal opinion, " which is one of the reasons that was given for the denial -- the record was denied because it consisted of a legal opinion given by Special Counsel to the Mayor to an agency client, which is protected by attorney-client privilege. Additionally, the record also expressed an opinion or recommendation that is preliminary in nature and unrelated to a final agency action, and thus was also claimed as exempt from disclosure in accordance with KRS 61.878(j)[sic], which provides that "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended" shall not be subject to inspection by means of an open records request.
With regard to Mr. Leightty's request for clarification as to whether additional agencies of Metro Government may be in possession of any records that are responsive to his original request, Metro Government has sent Mr. Leightty a letter that identifies one additional document that was located since his original request, but also has stipulated no agency has any additional records meeting the description provided by Mr. Leightty.
In response to this office's request for "additional documentation from the agency for substantiation," 4 including "a copy of the record[] involved," Ms. Carlton advised:
[T]he email was shared with the following people:
According to Ms. Heavrin, because her email was sent to clients (members of Louisville Metro Government) and she is the Administration's Counsel, she did not believe that any extra precautions were needed to insure confidentiality . . . it is standard practice not to share such communications.
The record may be characterized as preliminary, because there were no actions taken that were based upon the advice issued.
Moreover, even though the exemption granted by KRS 61.878(1)(j) was claimed with regard to this record, the primary reason for non-disclosure was based upon attorney-client privilege, which is not waived, even after an issue is resolved.
On behalf of the Louisville-Jefferson County Metro Government, Ms. Carlton again "assert[ed] this privilege with regard to the record in question." Having reviewed the disputed record pursuant to KRS 61.880(2)(c), we affirm the Metro Government's position.
2.
In 97-ORD-127, this office analyzed the propriety of the Natural Resources and Environmental Protection Cabinet's denial of a request for a copy of an opinion prepared by the Cabinet's Office of Legal Services on the basis of KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). At page 1 and 2 of that decision, we observed:
KRS 61.878(1)(l) authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRE 503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege:
Thus, the privilege consists of three elements: The relationship of attorney and client, communication by or to 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. Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3d ed 1993), citing United States v 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. The term "client" is defined to include "a person, including a public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer. . . ." KRE 503(a)(1). The privilege extends to communications from attorney to client "if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence." Kentucky Evidence Law Handbook at § 5.10 citing United States v Defazio, 899 F.2d 626, 635 (7th Cir 1990). Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objective." Kentucky Evidence Law Handbook § 5.10.
There we concluded that a public agency can be a "client" and agency lawyers can function as "attorneys" with the relationship contemplated by the privilege, and that a memorandum containing analysis and advice, produced by agency counsel in response to a request for a legal opinion, qualified for exclusion under KRE 503 because the agency "dealt with its attorneys as would any private party seeking counsel to protect its interests, necessitating the same assurances of confidentiality. " 97-ORD-127, p. 2. See also, 01-ORD-92; 02-ORD-14; 02-ORD-42. We expressly rejected the complainant's argument that the disputed record forfeited its preliminary status if and when it was incorporated into the agency's final decision in the matter, reasoning:
This office has previously recognized that although a number of the exceptions to the Open Records Act are forfeited "upon the occurrence of a specific event, this has never been the rule with respect to attorney work product [and documents shielded by the attorney-client privilege]." OAG 91-214. It is our opinion that reliance on legal advice is not synonymous with "incorporation" as that term is defined in the long line of cases interpreting KRS 61.878(1)(j). Simply stated, reliance on legal advice does not negate the attorney-client privilege.
97-ORD-127, p. 3.
In 2001, the Kentucky Court of Appeals opined that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] . . . ."
Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771,774 (2001). Affirming the University's reliance on the privilege, the court concluded:
Article V of the Kentucky Rules of Evidence (KRE) describes the nature and application of various privileges for confidential communications. The attorney-client privilege, the oldest of the privileges known at the common law, is governed by the provisions of KRE 503. It recognizes that sound legal advice and advocacy serve vital public purposes and that such advice and advocacy depend upon a guarantee of confidentiality between attorney and client. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981).
. . .
The privilege attaches to confidential communications made for the purpose of facilitating the process of rendering professional legal services to a client; counsel must be acting in the course and scope of employment for the client, and the communication must pertain to a matter within the course and scope of that employment. KRE 503(a)(2); Underwood and Weissenberger, Kentucky Evidence 2001 Courtroom Manual, § 503 (2000).
The University's proof indicated that the contested communications were sent by University counsel to the Chairman and Business Manager of the Psychiatry Department where Hahn was employed. Both of these individuals qualify as "representative[s] of the client." KRE 503(a)(2)(B). Our review of the documents demonstrated that the communications were made for the purpose of providing legal services to the University.
Hahn at 775, 776. On this basis, the court held that the disputed email communications were protected by the attorney-client privilege.
Our review of the email communication at issue in this appeal confirms that it was generated by the Mayor's special counsel for the purpose of providing legal services to "representatives of the client," consisting of the executive director of DDC, director of project development for DDC, and members of the Mayor's staff, and that it contained advice on the legal ramification of the inquiry which prompted it. The communication thus satisfied the first and second parts of the three part test found in KRE 503. Although no extraordinary measures were apparently taken to maintain the confidentiality of the communication, the Metro Government has given its assurances that "it is standard practice not to share such communications." There is nothing in the record before us to support a contrary finding. 5 Accordingly, we conclude that because KRS 61.878(1)(l), operating in tandem with KRE 503, justified nondisclosure of the disputed record, the Metro Government properly denied this portion of Mr. Leightty's request.
Turning to the second issue presented on appeal, we find that the Louisville-Jefferson County Metro Government complied with KRS 61.880(1) in denying Mr. Leightty's request for all documents maintained by the Metro Government or its predecessor entities, as well as the former City of Louisville, the former Jefferson County, and all agencies associated with those governmental entities, regarding whether state or local prevailing wage legislation applies or applied to the renovation of the Louisville Galleria on the basis that no responsive documents were found. In 96-ORD-101, we were asked to determine if a request for "such records as will provide the basis for . . . [the] statement, as referenced in the . . . Courier-Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $ 316,250 over the past five years" was sufficiently specific to require an unequivocal response. Noting that the requester had not requested a specific record, but had instead made an "open-ended any-and-all-records-that relate-type of request," we held that the city's general denial was appropriate. We observed:
Because [the requester] did not identify a specific record or records which he wished to inspect, or describe such records with reasonable particularity, the city could not advise him whether they exist. To paraphrase an earlier open records decision, [the requester's] request was so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass.
96-ORD-101, p. 3, citing OAG 91-58, p. 4. "To require an unequivocal denial of a nonspecific request for records," we concluded, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." 96-ORD-101, p. 3. Assuming that the Metro Government made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," 6 we conclude that the agency discharged its statutory duty, though that search yielded no results, when it notified Mr. Leightty that no responsive records were found. 7 OAG 86-38; OAG 90-26; OAG 91-101; 97-ORD-161; 01-ORD-38; 02-ORD-144. The agency has since "stipulated no agency has any additional records meeting the description provided by Mr. Leightty." The Open Records Act requires it to do no more. With the exception of the procedural errors noted in footnotes 1 and 2, above, we find no error in the Louisville-Jefferson County Metro Government's disposition of Mr. Leightty's requests and affirm its partial denial of same for the reasons set forth above.
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:
David Leightty973 Barret Avenue, Suite 2Louisville, KY 40204
Kris M. CarltonAssistant County Attorney531 Court Place, Suite 1001Louisville, KY 40202
Bill O'Brien, DirectorCivil DivisionJefferson County Attorney's Office531 Court Place, Suite 1001Louisville, KY 40202
Footnotes
Footnotes
1 Although Mr. Leightty did not object to the length of time that elapsed between the date of his request and the date on which the Metro Government formally responded, we note that the agency's response was not issued within three business days, as required by KRS 61.880(1), and that the agency offered no explanation for the delay, as required by KRS 61.872(5).
2 Again, we note that although Mr. Leightty did not object to the adequacy of the Metro Government's response, that agency did not comply with KRS 61.880(1), relative to the invocation of the attorney-client privilege, by "includ[ing] a statement of the specific exception authorizing the withholding of the record," namely KRS 61.878(1)(l) incorporating KRE 503, "and a brief explanation of how the exception applies to the record withheld."
3 Mr. Leightty also challenges the Metro Government's position that the disputed email qualifies for exclusion as a preliminary document. Because we conclude that resolution of this portion of his appeal turns on the propriety of the agency's reliance on the attorney-client privilege, we do not address these arguments.
4 Pursuant to KRS 61.880(2)(c), the Attorney General asked that the Metro Government respond to the following questions:
1. With whom was the disputed email shared and what measures were taken to insure that its confidentiality was maintained?
2. 2. To what is the disputed email preliminary? Has the issue addressed in the email not been resolved? Has it been resolved in a manner that conflicts with the position Ms. Heavrin took? Please elaborate on why you deemed the email preliminary.
5 In Hahn, the court rejected the argument "that the University was lax and unprofessional in taking proper precautions to secure or maintain the confidentiality of the communications - thus amounting to a waiver or a failure to establish confidentiality. " Id. at 776.
6 95-ORD-96.
7 We note that Mr. Leightty elected to exercise his right of access by receipt of copies of responsive records through the mail per KRS 61.872(3)(b). That statute required the requester to "precisely describe[]" records which "are readily available within the public agency. " As construed in 97-ORD-46, such a description must be "definite, specific, and unequivocal. " 97-ORD-46, p. 5. Clearly, Mr. Leightty did not precisely describe the record(s) he wished to access by receipt of copies through the mail and those records could, under no construction of the facts presented, be deemed "readily available within the public agency. "