Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky Retirement Systems violated the Open Records Act in partially denying James Dodrill's May 25, 2004, request for a copy of "all employee investigations, charges, and records of discipline imposed for the following employees or former employees of Kentucky Retirement Systems: Lauren Stewart[;] Glenn Valley[;] Cheri Curtsinger[; and] Robert Sircy." For the reasons that follow, we affirm KRS's partial denial of Mr. Dodrill's request.
By letter dated May 28, 2004, KRS General Counsel J. Eric Wampler responded to Mr. Dodrill's request. Although Mr. Wampler provided Mr. Dodrill with copies of records reflecting disciplinary measures imposed on Cheri Curtsinger and Robert Sircy, he denied Mr. Dodrill's request for "employee investigations, charges, and records of discipline imposed on" Lauren Stewart and Glenn Valley. In so doing, Mr. Wampler relied on the attorney-client privilege, asserting that "[a]ny documentation which may exist regarding this subject matter involves protected communications between the Board of Trustee of the Kentucky Retirement Systems and their legal representatives." Shortly thereafter, Mr. Dodrill initiated this appeal challenging KRS's denial of his request for "records of reprimands to employees regarding job-related misconduct," and arguing that "[t]he requested records do not appear to meet the exemptions described in KRS 61.878."
In supplemental correspondence directed to this office following commencement of Mr. Dodrill's appeal, Mr. Wampler amplified on KRS's position.
Kentucky Retirement Systems did decline to provide records of employee investigations pertaining to Lauren Stewart and Glenn Valley on the grounds of attorney-client privilege. The only documents that pertain to "investigations" are confidential written communications prepared by the Board of Trustee's counsel for the purpose of rendering legal advice to the Board. These documents were discussed during closed session of the Board. 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, 80 S.W.3d 771, 774 (Ky. App., 2001). This was acknowledged by the Attorney General's Office in Attorney General Opinion 03-ORD-243. Assertion of the attorney-client privilege is a valid exemption to KRS 61.878, contrary to Mr. Dodrill's assertions.
Kentucky Retirement Systems further asserts, without waiver of the attorney-client privilege, that no "charges and records of discipline" (which description would include any 'records of reprimand' ), exist for Lauren Stewart and Glenn Valley.
In sum, Mr. Wampler maintained that KRS's partial denial of Mr. Dodrill's request "was supported by all relevant statutory and case law."
In response, Mr. Dodrill advised this office, by letter dated July 2, 2004:
Lauren Stewart and Glenn Valley were former employees of Kentucky Retirement Systems. Mr. Stewart was Chief Operations Officer and Mr. Valley was Director of Accounting. Mr. Stewart and Mr. Valley engaged in questionable cash management practices while employed at Kentucky Retirement Systems.
As former staff attorney of Kentucky Retirement Systems, I was asked to proof read letters of reprimand prepared for Mr. Stewart and Mr. Valley. Mr. Wampler may be playing some game of semantics with your office; however, I assure you these records do exist.
It was his position that these records are subject to public examination "even thought such examination may cause inconvenience or embarrassment to public officials or others."
On July 7, 2004, Mr. Wampler reaffirmed KRS's position that "no 'letters of reprimand' were issued to Mr. Stewart or Mr. Valley." In response to this office's KRS 61.880(2)(c) request for additional documentation, including a copy of any responsive records in dispute, he stated:
Glenn Valley and Lauren Stewart retired from their positions with the Kentucky Retirement Systems. No disciplinary action was taken against Mr. Valley or Mr. Stewart prior to their retirement.
I examined the personnel files of Mr. Valley and Mr. Stewart and did not locate any disciplinary letter or draft disciplinary letter for either person. I also interviewed William P. Hanes, Executive Director, Kentucky Retirement Systems, and he advised me that no disciplinary letter was ever issued to Mr. Valley or Mr. Stewart. He also advised me that no draft disciplinary letter was ever prepared for Mr. Valley or Mr. Stewart.
Mr. Wampler identified the single, arguably responsive record as a report prepared by Ice Miller, Legal and Business Advisors, "concerning a review of administrative issues regarding cash flow, " and characterized its contents as privileged and confidential. It was this document that he referenced in his June 30 supplemental response for which he invoked the attorney-client privilege. Having reviewed that document, along with KRS's supplemental responses, we affirm KRS's reliance on the privilege as the basis for denying Mr. Dodrill access to the report and its ultimate disposition of his request.
This appeal raises two issues:
1. Whether KRS has conducted an adequate search for, and made full disclosure of, all nonexempt records that are responsive to Mr. Dodrill's request; and
2. Whether KRS properly relied on the attorney-client privilege in withholding the report prepared by Ice Miller analyzing issues regarding cash flow.
With regard to the first issue, we find that under the standard for an adequate search previously articulated by this office and consistently applied in open records appeals, KRS's action were proper. In general, we have observed:
[A] public agency cannot afford a requester access to records which do no exist or have been destroyed. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. . . . However, since July 15, 1994, when [KRS 61.8715] 1 took effect, we have applied a higher standard of review relative to denials based on the nonexistence, loss, or . . . destruction, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the records. . . .
95-ORD-96, p. 5.
In 95-ORD-96, this office established the standard by which to measure the adequacy of an agency's search for public records. At page 7, we stated:
In our view, the Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outmost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
(Emphasis added.)
The record on appeal demonstrates that KRS conducted a search using methods which could reasonably be expected to produce the records requested, to wit, letters of reprimand prepared for Mr. Stewart and Mr. Valley. Mr. Wampler, who apparently has no personal knowledge of any such letters, indicates that he examined Messrs. Stewart and Valley's personnel files and located no disciplinary letter or draft disciplinary letter for either employee. Additionally, Mr. Wampler spoke with KRS Executive Director William P. Hanes who confirmed that no disciplinary letters were issued to Messrs. Stewart and Valley. The record on appeal does not indicate who asked Mr. Dodrill to review the letters or how he ultimately disposed of them. Conversely, the record on appeal indicates that the circumstances of Messrs. Valley and Stewart's departure were not consistent with any disciplinary action, but that they instead elected to retire. The record on appeal therefore does not support Mr. Dodrill's veiled assertion that KRS has concealed these records. If evidence of willful concealment exists, Mr. Dodrill may wish to consider his options under KRS 61.991(2)(a).
Turning to the question of the propriety of KRS's denial of the single arguably responsive record, the report prepared by Ice Miller in which administrative issues relating to cash flow are analyzed, we find that KRS properly relied on the attorney-client privilege. As Mr. Wampler correctly notes, Kentucky's courts have recognized that this privilege can be invoked, under the proper circumstances, to resist disclosure of otherwise public records. See, e.g.
Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771 (2001). At page 775 of that opinion, the court observed:
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).
KRE 503(b) provides that:
KRE 503(a)(5) states that a communication is deemed "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
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 530(a)(2); Underwood and Weissenberger, Kentucky Evidence 2001 Courtroom Manual, § 503 (2000).
Note 2 of that opinion "recognizes that [pursuant to KRE 503(a)(1)] organizations or entities may be clients and are entitled to assert attorney-client privilege."
KRS's proof demonstrates that Ice Miller has been retained by the Board of Trustees to provide legal and business advice, and that the disputed report was generated "within the course and scope of that employment," relating directly to the subject matter upon which professional advice was sought. KRS's proof further demonstrates that the confidentiality of the report has been maintained from its creation to the present, and that its contents have only been shared with the Board during a closed session of that body. 2 Accordingly, we find that KRS properly withheld the report under authority of KRS 61.878(1)(l) and KRE 503. 3 Accord, 02-ORD-207; compare 01-ORD-246.
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.
Footnotes
Footnotes
1 KRS 61.8715 provides, in part:
The General Assembly finds an essential relationship between the intent of chapter [61] and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems in state government; and to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.
2 KRE 509 relates to waiver of a privilege by voluntary disclosure, but specifically excludes voluntary disclosure "if the disclosure itself is privilege." Anticipating Mr. Dodrill's argument that KRS waived the attorney-client privilege by producing a copy of the record for which the privilege is claimed for this office pursuant to our KRS 61.880(2)(c) request, we remind him that KRS 61.880(2)(c) expressly provides that the records produced "shall not be disclosed." KRS therefore did not waive the privilege by voluntary disclosure since that disclosure was itself privileged.
3 It is incumbent on this office to point out that KRS failed to cite the relevant statutory exception as required by KRS 61.880(1). We urge KRS to review that provision to insure that future responses strictly conform to the procedural requirements of the Open Records Act.