Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Cabinet for Health and Family Services relative to the series of requests submitted by Mark W. Leach on behalf of Laboratory Corporation of America Holdings, for copies of "all documents related to Solicitation S-04183412," a Request for Proposals for the provision of statewide genetic paternity testing services, violated the Kentucky Open Records Act. With respect to the notes of the individual bid evaluation committee members, the Cabinet properly relied upon KRS 61.878(1)(i) and 61.878(1)(j) in denying LabCorp access to those notes which the Cabinet did not adopt as a basis for its final action relative to the RFP. To the extent any notes exist which were incorporated into the group score sheets/ evaluations which, in turn, were adopted as the basis for the Cabinet's final action, those notes are subject to inspection. Although the Cabinet is also authorized to withhold those records which contain privileged attorney-client communications, the Cabinet has failed to identify the specific records which are being withheld and articulate the basis for its denial in terms of the privilege codified at KRE 503(b), incorporated into the Act by virtue of KRS 61.878(1)(l), as required to satisfy its burden of proof relative to those records. 1 Until the Cabinet identifies and generally describes any responsive records being withheld on this basis in terms of the privilege, it is in violation of the Open Records Act. Because any issues relative to those records which the Cabinet has agreed to disclose or has already disclosed are now moot, this office must decline to issue a decision relative to those records. With the exception of the noted deficiency, the actions of the Cabinet were consistent with the Open Records Act.
Factual History
In a letter directed to Sean Combs, CHFS, Contracts Management Branch, Division of Procurement Services, on June 28, 2004, Bruce M. Clark requested copies of all records related to "the Genetic Testing Contract, including but not limited to:"
. Bid tabulation of the vendors and prices submitted
. Evaluation score sheets and additional comments for all vendors
. Any additional award justification
. Copies of proposals submitted by each of the other vendors
More specifically, Mr. Clark's request on behalf of LabCorp included "all documents, electronic files, notes, reports, interviews, photographs, other recordings, and drafts relating in any way" to the RFP.
On June 29, 2004, Jon R. Klein, Assistant Counsel, CHFS, Office of Legal Services, responded on behalf of the Cabinet. As explained by Mr. Klein, "Solicitation S-04183412 is a Request for Proposals (RFP) for the provision of genetic testing services to the Commonwealth of Kentucky for the purpose of establishing child support obligations. The RFP for this solicitation was done as a competitive negotiation procedure. See KRS 45A.075 and 45A.085 ." 2 In closing, Mr. Klein advised Mr. Clark that the Finance and Administration Cabinet was expected to award the contract on or about July 15, 2004, at which point the Cabinet would make the requested records available to LabCorp. By letter directed to Mr. Combs and J. Gary Bale, General Counsel, FAC, on July 14, 2004, Mr. Clark resubmitted LabCorp's original request. In a timely response, Mr. Klein advised Mr. Clark that the Cabinet was "currently in the process of copying the requested documents" and anticipated that the records would "copied and available for disclosure on Tuesday, July 20, 2004." On July 21, 2004, Mr. Combs notified Mr. Clark that his request on behalf of LabCorp had "been completed" via facsimile. Upon receiving payment of the copying fee (1,058 pages at $ .10 per copy = $ 105.80), Mr. Combs released copies of the responsive records to Mr. Clark later that day as evidenced by the receipt and related documentation of record.
Upon reviewing the records provided, LabCorp discovered that "some records may not have been produced[.]" Acting on behalf of LabCorp, Mark W. Leach asked the Cabinet to supplement its initial response to LabCorp's requests dated June 28, 2004, and July 16, 2004. According to Mr. Leach, LabCorp "did not receive several statutorily required written findings." Specifically, Mr. Leach alleged that documentation required by KRS 45A.085 was not included among the materials produced. 3 Citing 200 KAR 5:307(4), Mr. Leach further indicated that other documents required to be in the file, "including any preliminary notes sheets from the evaluators, " and a summary of the negotiations, were not initially produced. 4 Also, "under the Finance Cabinet's Manual of Policies and Procedures, several documents and records did not appear in the initial production." 5 Accordingly, LabCorp requested production of the records or, in the alternative, confirmation that no such records were created "pursuant to [its] original request."
In a letter directed to Mr. Leach on July 30, 2004, Nora K. McCormick, Assistant General Counsel, CHFS, Office of Legal Services, responded on behalf of the Cabinet. Having provided a "thorough and accurate recitation of all the correspondence" exchanged by the parties, Ms. McCormick advised Mr. Leach, in relevant part, as follows:
As you saw in the records already disclosed, the Cabinet materially changed its contract evaluation process and scoring sheets from last year. The RFP put potential vendors on notice that "(e)ach proposal will be evaluated using a consensus evaluation methodology by a review committee. . . ." (Emphasis added). See Criteria and Points section of the RPF; see also Information and Data Required, Section II. The records disclosed reflect the RFP proposals evaluators' group consensus, as well as the groups' comments, concerning all the responses to the RFP. Any other documents that may be in the possession of the Cabinet or its employees fall within the exemptions to the Open Records Act contained in KRS 61.878(1)(i) and (j). Thus, copies of all of the records relating to the "evaluation score sheets and additional comments for vendors, and any additional award justification" that are required to be disclosed in response to an open records request have been provided to you.
In your second paragraph, you accuse the Cabinet of failing to provide statutorily required written findings and cite KRS 45A.085(1) as support for your accusation. A closer reading of that statute, as well as a fuller comprehension of the Kentucky Model Procurement Code and the administrative regulations promulgated thereunder, is required for you to understand that the subject contract is a personal service contract, which is defined in KRS 45A.690, et. seq., and not a price contract. 6
A personal service contract is one which requires ". . . professional skill or professional judgment for a specified period of time at a price agreed upon." KRS 45A.690(1)(f). A personal services contract can be awarded by "competitive negotiation. " KRS 45A.075(2); see also FAP 111-43-00, the manual provision applicable to personal service contracts. This was the process employed in the subject solicitation, i.e., a request for proposals was published and the process set out in KRS 45A.085 was followed. Thus, the writing requirement[s] set out in KRS 45A.085(1) and (6) are inapplicable to the subject solicitation.
In response to your third paragraph, please be advised that the documents produced by the Cabinet included the RFP proposals evaluators' group consensus as well as the group's comments. See discussion above. Again, the Cabinet has fully disclosed all documents required to be disclosed under the Open Records Act.
In your fourth paragraph, you ask for documents referenced in FAP 111-57-00, paragraph 3.a. As previously discussed, this manual provision relates to price contracts; thus, it is inapplicable to the subject solicitation. See statutory and regulatory citations at the end of FAP 111-57-00 to see applicability of the manual provision. For the third time, please be advised that the RFP proposals evaluators' group consensus, as well as the group documents, have been disclosed to you. This letter will once again confirm to you that all public records that are required to be disclosed under the Open Records Act were disclosed in the documents delivered to Bruce Clark on July 21.
In response, Mr. Leach expressed "some confusion based on conflicting representations in the correspondence [,]" reiterating LabCorp's request for "those statutory and regulatory required written findings and documents" and "any and all documents" related to the solicitation, in a letter directed to Ms. McCormick on August 4, 2004. 7 More specifically, LabCorp requested the "proof of necessity form" required by KRS 45A.695(2), "all documents, including electronic, related to the bid evaluation of the state's procurement system as required by FAP 111-43-00 § 1(f)," the mandatory "purchase request," a copy of the "award justification as required by the bid evaluation," and "any and all correspondence with Orchid GeneScreen" documenting its "start time" for performance under the contract. Citing KRS 61.880(1), 8 Mr. Leach also indicated that the Cabinet's response was deficient insofar as it refers to KRS 61.878(1)(i) and (j) but "fails to list the documents that are being withheld and does not contain a brief explanation [of] how those exemptions are applicable to those documents" as required by prior decisions of this office.
On August 9, 2004, Ms. McCormick again responded on behalf of the Cabinet. According to Ms. McCormick, "the comments and questions" contained in the third paragraph" on page one of Mr. Leach's letter demonstrate a fundamental misunderstanding of the framework of the Model Procurement Code. "Suffice it to say, the contract for genetic testing is a personal services contract entered into by competitive negotiation. " That being said, Ms. McCormick also reiterated that a consensus evaluation methodology was employed in scoring the responses to the RFP, the "documents related to the consensus evaluation methodology were provided" to LabCorp, and any records withheld are exempt by virtue of KRS 61.878(1)(i) and (j). In addition, Ms. McCormick apologized "for the oversight in not addressing this" in her previous letter, but emphasized that the "only other documents that were not produced in response" to LabCorp's original request are documents "containing attorney-client privileged communication."
In response to LabCorp's "new requests," Ms. McCormick explained:
That request did not include those items that you list in the second paragraph of page 2 of your August 4 letter and that is why the newly requested information was not disclosed previously. Now that the contract is awarded and you have asked for additional documents relating to the contract, a copy of the contract, including the proof of necessity and award justification, is available along with copies of emails relating to the contract award that have been generated since the Cabinet responded to your earlier requests for disclosure of documents under the Open Records Act. 9 A purchase request was not generated on this contract as purchase requests are applicable to price contracts, not personal service contracts. 10 Again, any emails that are protected by the attorney-client privilege have not been produced. To more fully identify those documents may abrogate the privilege and we decline to do so.
Reiterating its earlier arguments, LabCorp filed this appeal by letter dated September 16, 2004. According to LabCorp, the "group consensus" scoring method employed by the Cabinet "is not recognized by any agency, particularly the [agency responsible] for this procurement, the Department for Material and Procurement Services." Acknowledging that the Cabinet produced "new documents that were distinguished as related to the contract and not the solicitation, " LabCorp takes issue with the Cabinet's belated invocation of the attorney-client privilege and failure to describe the documents being withheld on that basis. With regard to the "individual evaluators' notes" that have allegedly been withheld, LabCorp further argues: "To the extent the notes of the evaluators that have been excepted as preliminary or internal documents were adopted as part of CHFS's final evaluation," those notes should be produced. In support of this position, LabCorp cites
Kentucky State Board of Medical Licensure v. Courier-Journal & Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983). 11
Upon receiving notification of LabCorp's appeal from this office, Ms. McCormick supplemented the Cabinet's response by letter dated September 24, 2004. 12 In response to the allegation that any notes taken by the individual bid evaluation committee members were improperly withheld, the Cabinet explains:
The Cabinet did not ask the bid evaluation team members to individually complete the evaluation score sheets. If the bid evaluation team members made notes, they were solely for the use of the individual [team members] during their discussion at the consensus evaluation scoring conference. Thus, any such notes were not adopted by the agency as part of its action, except as discussed below; thus, they are not properly disclosed. [Kentucky Bd. Of Medical Licensure, supra.] To the extent that these individuals' notes became a topic of discussion, they were incorporated into the group scoring sheets that were produced in response to LabCorp's Open Records request. See Score Sheets, attached to Exhibit D.
With respect to LabCorp's claim that the Cabinet redesigned its entire methodology to avoid disclosing the notes at issue, the Cabinet further explains:
For the present state fiscal year, a new Cabinet-wide, across-the-board approach to RFP scoring was designed in an effort to incorporate as much objectivity as possible in all bid evaluation processes. All bid scoring for virtually all contracts issued by the Cabinet for the state fiscal year 2005 forward was done by "consensus evaluation methodology. " See discussion pages 2-3 of Exhibit B. Thus, any notes made by the individual evaluation team members were not what was requested by LabCorp, namely bid tabulations and evaluation score sheets. The bid tabulation and the evaluation score sheets were the "consensus evaluation" documents which the Cabinet provided to LabCorp. Any notes of the individual evaluation team members were prepared on their own and merely for the purpose of refreshing their own memory. Again, any such notes were not part of the bid evaluation process. Because these notes were not part of the bid evaluation process, it was clearly rational to not provide them in response to LabCorp's open records requests.
When LabCorp complained, the Cabinet went to further lengths to explain that these notes would be exempted from inspection pursuant to KRS 61.878(1)(i) and (j). See Attachment 8 to LabCorp's Open Records Appeal. As stated therein, any confusion concerning the individual team members' notes, which were not part of the bid evaluation process, were not records subject to disclosure and LabCorp was so informed. Thus, there is no violation of the Open Records Act despite LabCorp's insistence, without foundation, to the contrary. In the alternative, if there was any violation, it was cured by the Cabinet's August 9 correspondence.
As to LabCorp's final argument regarding the Cabinet's admittedly belated invocation of the attorney-client privilege, the Cabinet asserts:
The law is well-settled by the Kentucky Supreme Court that attorney-client communications are protected from disclosure under an Open Records Request. See Kentucky Lottery Corp. v. Stewart, Ky. App., 41 S.W.3d 860, 863 (2001), citing Lexington-Fayette Urban County Gov't v. Lexington-Herald Leader Co., Ky., 941 S.W.2d 469 (1997).
In the Cabinet's view, any violation of the Open Records Act was cured by subsequent correspondence "which clarified that the Cabinet possesses some documents that are subject to the attorney-client privilege and which were not disclosed nor would they be described. To disclose or describe such documents would only violate [the privilege]." In the absence of a waiver by the Cabinet, Ms. McCormick declines to "violate the attorney-client privilege by even characterizing the nature of the documents" which are protected. To this extent, the Cabinet has failed to meet its burden of proof as evidenced by the following authorities. 13
Attorney-client privilege
In 97-ORD-127, this office was asked to determine whether the Natural Resources and Environmental Protection Cabinet properly denied 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 virtue of KRS 61.878(1)(l). Of particular significance here, the Attorney General 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, 3rd ed. 1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2nd Cir. 1989). Its purpose is to [e]nsure 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. . . ." KRS 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 Law Evidence Law Handbook § 5.10.
Id., p. 1.
In holding that the Cabinet had properly withheld the legal opinion at issue, this office emphasized that a public agency can be a "client" and agency lawyers can function as "attorneys" within the relationship contemplated by the privilege with the corollary being that a memorandum containing legal analysis and advice authored by agency counsel in response to a request for a legal opinion qualified for exclusion under KRE 503. Id., p. 2. That result hinged on the fact that the agency had "dealt with its attorneys as would any private party seeking counsel to protect its interests," thereby necessitating the "same assurances of confidentiality. " Id. See also 04-ORD-149; 03-ORD-243; 02-ORD-42. Expressly rejecting the appellant's argument that the record in dispute forfeited its exempt status if and when it was incorporated into the agency's final decision on the matter, the Attorney General reasoned:
This office has previously recognized that although a number of 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. 2.
More recently, the Kentucky Court of Appeals recognized that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] by the Kentucky General Assembly."
Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771, 774 (2001). In upholding 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 KRS 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 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
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 the 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. Accordingly, the Court held that the communications in dispute were protected by the attorney-client privilege.
In responding to both LabCorp's request for supplementation and this appeal, the Cabinet has merely referenced the privilege without identifying the records to which the privilege purportedly applies or attempting to establish that the records satisfy the requirements of the privilege. 14 In short, the Cabinet has not offered any proof that all of the records withheld were generated during the course of the attorney-client relationship, represent a communication by or to the client relating to the subject matter upon which professional advice was sought, or were maintained in a manner designed to ensure confidentiality, as required to successfully invoke the attorney-client privilege. 15 To the contrary, the Cabinet expressly declines to "more fully identify those documents," or violate the privilege "by even characterizing the nature" of the records withheld. Simply put, the Cabinet "paints with broad brush strokes and entirely omits the details" in violation of the Open Records Act. 98-ORD-124, p. 8.
Based on the foregoing, it is the decision of this office that the Cabinet erred in adopting a policy of blanket exclusion relative to the responsive e-mails and any unidentified responsive records on the basis of the attorney-client privilege. In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents . . . . [W]e cannot agree [that a] . . . limited and perfunctory response to . . . [a] request even remotely complie[s] with the requirements of the Act--much less that it amount[s] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 00-ORD-10, p. 10. Expanding upon this view, the Attorney General has consistently held:
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 [or privilege] and are therefore not excludable.
97-ORD-41, p. 6; 00-ORD-10, p. 10. In that decision, the Attorney General suggested 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." Id., p. 7; 00-ORD-10, p. 10. More generally, the Attorney General has said:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6) which requires clear and convincing evidence to support denials resulting from 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, pp. 10, 11, citing 95-ORD-61, p. 2.
To date, the Cabinet has provided only a "bare assertion" in support of its claim that unidentified responsive records, including e-mails, constitute privileged attorney-client communications. "A generic determination that entire categories of records are excluded from the mandatory disclosure provisions of the Open Records Act does not satisfy the requirements of the Act." 97-ORD-41, p. 4. As in 00-ORD-10 and 00-ORD-111, the agency has not identified the records or groups of records withheld or adequately explained how the privilege applies to those records as required by KRS 61.880(1) and KRE 503. 16 See also 01-ORD-246. In so holding, this office is not implying that the Cabinet's reliance on the attorney-client privilege was misplaced, only that it failed to provide sufficiently detailed information to substantiate its position. 17 Although the Cabinet is certainly permitted to withhold those records which qualify for exclusion as confidential communications between attorney and client, the Cabinet must identify the records being withheld and articulate its denial in terms of the privilege in order to meet its statutory burden of proof as to those records. In light of this determination, the question becomes whether the Cabinet properly relied upon KRS 61.878(1)(i) and (1)(j) in denying LabCorp access to the notes taken by the individual evaluation committee members.
KRS 61.878(1)(i) and (1)(j) as applied to the "preliminary notes" of the committee members
When called upon to render a decision involving statutory interpretation, the limited function of this office is "to ascertain and give effect to the intent of the General Assembly" as reflected by the language employed.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In determining legislative intent, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.2d 831, 835 (2000). "We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Beckham, supra, at 577. 18 Our analysis is necessarily guided by these fundamental principles as well as the legislative statement of policy codified at KRS 61.871,, that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). Nevertheless, this office is also cognizant that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)[(i) and (j)]. From these exclusions, we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for government confidentiality.
Beckham, supra, at 577-578; See also
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995)(recognizing that the "concept of governmental confidentiality has not been totally diluted by the Open Records Act" ).
Although our research has revealed no authority which is directly on point, both this office and the courts have construed the language of KRS 61.878(1)(i), upon which the Cabinet primarily relies, in various contexts. See 02-ORD-86; 01-ORD-104; 00-ORD-98; 99-ORD-220; 97-ORD-183. KRS 61.878(1): Among those records excluded from the application of the Open Records Act are those listed at KRS 61.878(1):
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In an early open records decision, the Attorney General observed:
Not every paper in the office a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2; 04-ORD-030. Guided by an evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status upon being adopted by the agency as a basis for its final action. With respect to those notes which the Cabinet concedes were "incorporated into the group scoring sheets" which, in turn, were adopted as the basis for its final action, such is the case here. Contrary to the Cabinet's assertion, the fact that the Cabinet has disclosed the group score sheets into which certain notes were incorporated does not dispense with the obligation to disclose the actual notes. It is because those notes still in dispute were incorporated into the group score sheets that disclosure is required.
Applying the cited exceptions to reports generated during the course of an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Court of Appeals held:
It is the opinion of this Court that subsections [(i) and (j)] quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
. . . We do not find that the complaints are per se exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. . . .
City of Louisville, supra, at 659-660. (Emphasis supplied). While the Cabinet may be correct in arguing that the notes requested by LabCorp are more closely akin to the "internal investigation reports" at issue in City of Louisville, the critical distinction here is that the Cabinet did adopt some of those notes as a basis for its final action thereby forfeiting the preliminary status of those notes. In short, the determinative inquiry on the facts presented is whether the notes were adopted as a basis for the Cabinet's action. It is beyond dispute that the notes would otherwise be preliminary and therefore exempt, as are any notes which were not "included on the group's score sheets. "
One year after City of Louisville, the Court reaffirmed its position in a case involving public access to complaints filed against licensed physicians with the Kentucky State Board of Medical Licensure, holding that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once the Board has taken final action relative to the complaint. Kentucky State Bd. of Medical Licensure, supra. Of particular relevance here, the Court again observed:
If these documents [letters, correspondence, and reports compiled by the Board] were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status. Id. at 659.
Kentucky Bd. of Medical Licensure at 956. (Emphasis added). 19
Nine years passed before the courts revisited this issue in a published opinion. In
University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373, 378 (1992), the Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." (Emphasis added). 97-ORD-168, p. 5. In the intervening years, the Attorney General applied this principle in various contexts with this principle being the common thread among the decisions. See OAG 89-69; OAG 88-25; OAG 84-98; OAG 83-405. Said another way, each of the cited decisions was premised on the following notion:
Predecisional and investigative documents which are incorporated by the agency into its final action [as is the case here relative to those notes "which became part of the group consensus"] forfeit their preliminary status and are therefore subject to inspection. . . . Records which are of a purely internal preliminary investigatory nature are exempt. . . . Records which are preliminary in character but are subsequently adopted by the agency as a basis of its final action become releasable as public records.
97-ORD-168, pp. 5-6, citing 93-ORD-103, p. 11 (Emphasis added); See 04-ORD-162. Acknowledging that the Kentucky State Police had correctly summarized the rule of law set forth City of Louisville and its progeny, the Attorney General nevertheless concluded that the agency had interpreted "the rule too broadly," as the Cabinet does here, in 97-ORD-168. Id., p. 6. In so doing, this office observed:
The cases and opinions cited above establish that an internal affairs report can not be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports [or, in this case, "preliminary note sheets" ]. The purpose for which KRS 61.878(1)(i) and (j) were enacted, namely to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken.
Id., pp. 6-7. In our view, this reasoning is equally applicable on the facts presented. See 01-ORD-83 and 01-ORD-47 (both of which reaffirm the validity of 97-ORD-168); Compare 01-ORD-83 (which provided this office with the opportunity to clarify when a preliminary document becomes subject to public inspection). In rejecting the agency's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, the Attorney General engaged in the following analysis:
We do not believe that the case law supports this position. In City of Louisville, Board of Medical Licensure, and University of Kentucky, above, the courts employed the term "adopt" rather than "incorporate" when referencing preliminary records that forfeit their preliminary characterization. The term "incorporate" appears in City of Louisville only with reference to the complaints that spawn an investigation, and that are "deemed incorporated as a part of . . . final determinations" inasmuch as "whatever final actions are taken necessarily stem from them . . . ." City of Louisville at 660 (emphasis added).
These terms are not synonymous or interchangeable. The concept of incorporation by reference has a narrow legal meaning, and is defined in Black's Law Dictionary as "[t]he method of making one document of any kind become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as part of the latter the same as if it were fully set out therein." Black's Law Dictionary, 690 (5th ed. 1979). To adopt, on the other hand, means "to accept, appropriate, choose, or select . . . ," Id. at 45, or "[t]o take and follow (a course of action) by choice or assent . . . [t]o take up and make one's own." American Heritage Dictionary 12 (3rd ed. 1994). In our view, the courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation. To the extent that prior open records decisions of this office are inconsistent with this view, they are hereby modified. Where the preliminary investigative report or records are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) and (j) exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed.
04-ORD-162, pp. 11-12, citing 01-ORD-83, pp. 13-14.
Here, the Cabinet asserts that the "individuals' notes were not incorporated as the final agency action unless the group discussed it and incorporated them into the group's evaluation process, " simultaneously acknowledging that the notes in question "were incorporated into the group scoring sheets" which were adopted as the basis for its final action to the extent that the notes "became a topic of discussion[.]" (Emphasis added). Under either definition, the notes of the individual committee members which formed the basis of the Cabinet's final action are subject to inspection. In withholding any notes which were "incorporated" into the "groups' bid evaluation score sheet" and were "adopted by the agency," the Cabinet misconceives its duty under the Open Records Act. To summarize, the Cabinet must provide LabCorp with copies of any existing notes which are responsive to LabCorp's request, even though the content of those notes has been revealed indirectly with the disclosure of the group score sheets. However, the Cabinet properly withheld any existing notes which were not adopted as a basis for the Cabinet's final action. To hold otherwise would be contrary to both precedent and the legislative policy behind the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an 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.
Mark W. LeachStites & Harbison PLLC400 West Market Street, Ste. 1800Louisville, KY 40202-3352
Nora K. McCormickAssistant General CounselOffice of Legal Services Cabinet for Health and Family Services275 East Main Street, 4W-CFrankfort, KY 40621
Jon R. KleinAssistant General CounselOffice of Legal Services Cabinet for Health and Family Services275 East Main Street, 4W-CFrankfort, KY 40621
David FleenorGeneral CounselCabinet for Health and Family Services275 East Main Street, 5W-AFrankfort, KY 40621
Footnotes
Footnotes
1 In relevant part, KRS 61.880(2)(c) 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."
2 KRS 45A.075., Methods of awarding state contracts, provides:
Except as otherwise authorized by law, all state contracts shall be awarded by:
(1) Competitive sealed bidding, pursuant to KRS 45A.080; or
(2) Competitive negotiation, pursuant to KRS 45A.085 and 45A.090; or
(3) Noncompetitive negotiation, pursuant to KRS 45A.095; or
(4) Small purchase procedures, pursuant to KRS 45A.100.
KRS 45A.085 governs competitive negotiations. Citing OAG 98-11, Mr. Klein correctly observes that the Attorney General has previously held: "When the Commonwealth engages in procurement through competitive negotiation, proposals and related documents do not become public records until a contract is awarded."
3 KRS 45A.085.(1) provides:
When, under administrative regulations promulgated by the secretary, the purchasing officer determines in writing that the use of competitive sealed bidding is not practicable, and except as provided in KRS 45A.095 and 45A.100, a contract may be awarded by competitive negotiation.
KRS 45A.085.(5) provides:
Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the Commonwealth, taking into consideration price and the evaluation factors set forth in the request for proposals.
In relevant part, KRS 45A.085.(6) provides:
Written or oral discussions shall be conducted with all reasonable offerors who submit proposals determined in writing to be reasonably susceptible of being selected for award. Discussions shall not disclose any information derived from proposals submitted by competing offerors.
4 Pursuant to 200 KAR 5:307(4), "all evaluation documentation, scoring and summary conclusions shall be in writing and made a part of the file records for the procurement." Under (6) of that regulation, "the purchasing officer shall prepare a written summary of all oral discussions and competitive negotiations setting forth both the dates and the general substance of the discussions."
5 According to LabCorp, the FAC was required to "forward a purchase request and a copy of the supporting documentation electronically to the Division of Material and Procurement Services[,]" at which point the Division "would have reviewed the draft document and returned it to the Cabinet with any comments." Also, members of the Evaluation Committee "were to forward their signed evaluations and comments to the Division" and "copies of any correspondence related to any procurement transaction" were supposed to be maintained. Although LabCorp "did receive some facsimiles, letters, and e-mails," LabCorp again requested that the Cabinet supplement its responses or confirm that no other correspondence exists.
6 KRS 45A.690(1)(f) provides:
"Personal service contract" means an agreement whereby an individual, firm, partnership, or corporation is to perform certain services requiring professional skill or professional judgment for a specified period of time at a price agreed upon. It includes all price contracts for personal services between a governmental body or political subdivision of the commonwealth and any other entity in any amount. This definition does not apply to: [not applicable here]
7 As observed by Mr. Leach:
In Mr. Klein's letter that initially postponed the production of the records, he advised that, "the RFP for this solicitation was done as a competitive negotiation procedure. See KRS 45A.075 and 45A.085." You now state that KRS 45A.690 controls. If Mr. Klein's position was correct and this matter was processed according to KRS 45A.085, . . . .
8 In relevant part, KRS 61.880(1) provides:
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.
9 Any issues relative to these records as well as those records which the Cabinet has already provided to LabCorp are now moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Consistent with this mandate, the Attorney General has long recognized that if access to public records which are the subject of a request is initially denied but subsequently granted, "the propriety of the initial denial becomes moot." 04-ORD-046, p. 5, citing OAG 91-140. Absent evidence to the contrary, this office assumes that LabCorp has received copies of any existing records which are responsive to LabCorp's request for records relating to the contract as agreed in its response. Accordingly, this office must decline to issue a decision as to those records.
10 To clarify, the right to inspect attaches only after the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 2, citing 97-ORD-18. On this issue, the Attorney General has long recognized:
[A]n agency's inability to produce records due to the[ir] 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; 01-ORD-59, p. 5; 01-ORD-220, p. 6. 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.
04-ORD-109, p. 2, citing 02-ORD-144, p. 3. Conversely, an agency discharges its statutory duty by affirmatively indicating that the requested records do not exist as the Cabinet did here relative to the purchase request and statutorily required findings, providing a credible explanation as to why no such records were generated. 03-ORD-205, p. 3, citing 99-ORD-98. It is the function of this office to review the course of action taken by a public agency, not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 04-ORD-059, p. 4. (Citations omitted). Although there may be occasions when the Attorney General requests that a public agency substantiate its denial based on the nonexistence of records by demonstrating any efforts undertaken to locate the records or explaining why no records were generated consistent with the mandate of KRS 61.8715, when, as is the case here, the agency denies that the records were ever created and the record supports that contention, additional inquiry is not warranted. Id., p. 5.
11 In LabCorp's view, the consensus evaluation methodology "is a pretext in order to deny access to the individual evaluators' notes" as evidenced by the fact this "is the first year CHFS has used such an evaluation methodology and it is not" recommended by the DMPS. According to LabCorp, this suggests that the "consensus method" was "purposefully designed" so that individual evaluator notes "could be characterized as preliminary and therefore excepted under the Open Records Act. " To begin, such an allegation does not fall within the narrow scope of our review in the context of an open records appeal. Noticeably absent from the record on appeal is any evidence to support this particular allegation. Accordingly, further elaboration is unnecessary except in relation to the Cabinet's position as to why no individual notes were provided.
Contrary to LabCorp's implicit assertion, the Cabinet's failure to notify LabCorp "that it had a right to a review by this office" does not constitute a violation of the Open Records Act. In support of its position that the Cabinet was required to notify LabCorp of this right, LabCorp cites "directives of CHFS's predecessor agency, the Cabinet for Health Services[,]" copies of which are attached to its letter of appeal. As long recognized by this office:
Under the Open Records Act [,] the Attorney General has a precise and limited function which, as set forth in KRS 61.880(2)(a), is to review a properly filed appeal and issue a written decision stating whether the agency violated the provisions of the Open Records Act. Thus, in the matter before us at this time we can only address the issue of whether the response to the request for documents was proper under the provisions of the Open Records Act. (Emphasis added).
96-ORD-118, p. 1. Because the Open Records Act contains no such requirement, it stands to reason that the Cabinet's response was not lacking in this respect.
12 Citing 40 KAR 1:030, Section 1, the Cabinet argues that LabCorp's appeal should be summarily denied because it failed to include a copy of the Cabinet's initial response and certain attachments to the Cabinet's response to LabCorp's fourth request. Upon receiving the Cabinet's response on appeal, LabCorp supplemented its response by letter hand delivered to this office on October 4, 2004. "Contrary to CHFS's claim, Labcorp has not submitted five requests, but rather an initial request with additional requests for supplementation . . ." Although not immediately apparent, a close inspection of the record reveals that the responses of the Cabinet to LabCorp's "requests for supplementation" prompted this appeal meaning that its otherwise fatal omissions do not dictate such an outcome on the facts presented.
13 In its letter of October 4th, LabCorp elaborates upon its earlier position regarding the notes at issue and the Cabinet's refusal to identify which records are protected by the attorney-client privilege. In LabCorp's view, the Cabinet's contradictory reasons for withholding the notes are readily apparent upon reviewing its response. Attached to LabCorp's response is a copy of the "Evaluation Procedure & Confidentiality Statement" derived from the "preliminary instructions for evaluators, " which each member of the evaluation committee was required to read and sign. Subsection (2) of the statement provides: "Each committee member shall independently evaluate and score each proposal using the preliminary sheet. " According to LabCorp, "the evaluators were required to take notes" as evidenced by this language. "Secondly, by CHFS's own admission, these notes 'were incorporated into the group's scoring sheets, '" which LabCorp interprets to mean that the Cabinet adopted these notes as a basis for its action despite the Cabinet's assertion to the contrary. "With the exempt status lost," LabCorp argues that the Cabinet must disclose these documents.
Characterizing the Cabinet's claim of attorney-client privilege as "an improper blanket exclusion," LabCorp further asserts that "characterizing the nature of the documents withheld" on this basis "is exactly what" this office has required, citing 00-ORD-10 as authority for its position. "Despite being advised by LabCorp in its request for supplementation that a description was required," the Cabinet only provided a "bare assertion."
In closing, LabCorp belatedly requests that "this Office conduct an in camera review of any documents" being withheld and further requests a meeting with this office to be attended by the Cabinet. Although the Attorney General is authorized to "request additional documentation from the agency for substantiation[,]" and "may also request a copy of the records involved" by virtue of KRS 61.880(2)(c), the language of this provision is permissive rather than mandatory. In our view, the existing record contains sufficient information upon which to base a determination in this matter. With respect to LabCorp's latter request, suffice it to say that the Open Records Act provides no such mechanism.
Upon becoming aware of LabCorp's supplemental correspondence, the Cabinet responded in a letter received by this office via special messenger on October 7, 2004. According to the Cabinet, the instructions to the individual bid evaluation committee members "clearly and unequivocally describe any notes taken by the individual members of the bid evaluation team as "preliminary" and, thus, subject to the exemptions" codified at KRS 61.878(1)(i) and (1)(j). To the extent that the notes "were discussed in the group consensus process and made a part of the basis for the Cabinet's group's selection process, those comments were incorporated into the group's bid evaluation process. " In other words, "where the individuals' notes or comments became part of the bid evaluation and were adopted by the agency, the notes or comments were included on the groups' bid evaluation score sheet. " (Emphasis added). In the Cabinet's view, only the "group's consensus bid evaluation score sheets" are subject to disclosure. Distinguishing Kentucky State Board of Medical Licensure, upon which LabCorp relies, the Cabinet further argues that the subject notes are more analogous to the internal investigative reports at issue in City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982).
Likewise, LabCorp's second argument "is equally without merit." Citing KRE 503(b) and SCR 3.130(1.6)(a), the Cabinet contends that the "rules of professional responsibility prohibit further characterization of an attorney-client communication." On both counts, the Cabinet cites the applicable law but its interpretation is not supported by governing precedent.
14 In its response dated August 9, 2004, the Cabinet indicates that "any emails that are protected by the attorney-client privilege have not been produced." Absent further explanation, it is unclear whether e-mails are the only records being withheld on this basis. Even if responsive e-mails are the only category of records to which the privilege purportedly applies, a more detailed description is required to successfully invoke the privilege.
15 Likewise, the Cabinet has not established that the records withheld consist of "the mental impressions, conclusions, opinions, or legal theory of an attorney or other representative" of the Cabinet concerning related litigation as required to qualify for exclusion under the attorney work product doctrine. 98-ORD-124, p. 8.
16 In 00-ORD-111, the record reflected the existence of proposed and pending litigation related to the matter and the Attorney General only affirmed the agency's denial of access to records " directly relate[d] to the anticipated litigation involving [the client's injuries] and the termination of his workers' compensation benefits, and which satisf[ied] each of the requirements of KRE 503, or [could] be characterized as "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the [agency] concerning the anticipated litigation." Id., p. 1(original emphasis). All other records were subject to disclosure pursuant to KRS 61.878(3). Id.
17 Notwithstanding LabCorp's unfounded allegations, the evidence of record reveals that the Cabinet has acted in good faith throughout these proceedings. Accordingly, this office attributes any error committed by the Cabinet to an honest misconception of its obligations under the Open Records Act.
18 In the absence of a statutory definition, a dictionary may be consulted to ascertain the "common and approved" meaning of a term. See Young v. Commonwealth, Ky., 968 S.W.2d 670, 672 (1998). A "note" is defined as a "brief record, esp. one written down to aid the memory." The American Heritage College Dictionary 951 (4th ed. 2002).
19 Quoting the trial court, the Court of Appeals concluded:
It would appear to this court and it is so held, that those documents defined in Subsections [(i)] and [(j)] which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records under Subsection [(h)], unless exempted by other provisions of KRS 61.870 through KRS 61.884. Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under Subsections [(i)] and [(j)] of the Act.
Id. at 956-957. (Emphasis added).