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 the Mason County Board of Education violated the Open Records Act in partially denying Attorney Jeffrey L. Schumacher's October 21, 2004, request for records relating to an investigation initiated at the Board's request. Mr. Schumacher represents an individual upon whom a subpoena was served in the course of the investigation and who is seeking to have the subpoena quashed in the Mason Circuit Court. For the reasons that follow, we find that as to the records which remain in dispute, the Board failed to make an adequate showing of exemption under the cited provisions, and that unless it can do so, the disputed records must be disclosed.
In October 2004, Mr. Schumacher requested copies of a broad range of records relating to the Board's investigation, including the Board's KRS 61.876 rules and regulations governing access to public records, bills from legal counsel arising from the investigation, checks evidencing expenditures of school district funds for expenses relating to the investigation, checks received by the Board from employees or board members as reimbursement for expenses incurred by the Board in the investigation, depositions taken, and affidavits and written statements obtained, by the Board during the investigation, and all other records "containing any information whatsoever concerning the Mason County Board of Education's investigation . . . ." With the exception of its KRS 61.876 rules and regulations and checks received from employees or Board members as reimbursement for expenses incurred in the investigation, which were released, the Board denied Mr. Schumacher's request by letter dated October 26, 2004. 1 On behalf of the Mason County Board of Education, Board Attorney Timothy Crawford advised:
These records are exempt under the Open Records Act because they were prepared either by me, at my direction or within my investigative process and are documents which are either preliminary recommendations, preliminary memoranda, privileged attorney-client communications created for the purposes of rendering legal services to my client, are attorney work product or are public records and/or information the disclosure of which are [sic] prohibited or restricted or otherwise made confidential by the Kentucky Rules of Civil Procedure, the Kentucky Rules of Evidence or by enactments of the General Assembly.
In support, Mr. Crawford cited OAG 81-291, 96-ORD-38, CR 26.02(3), KRE 503, and KRS 61.878(1)(j) and (l). Upon receipt of the Board's partial denial of his request, Mr. Schumacher initiated this appeal asserting that the disputed records "could not possibly be shielded by the attorney-client privilege as such documents involve third parties who have been subpoenaed by the School Board."
In response to this office's notification of receipt of Mr. Schumacher's appeal, the Board agreed to release the statement for professional services submitted by Mr. Crawford relative to the investigation, the check evidencing expenditure of school district funds for expenses incurred in the investigation, and "documents which are on file at the Mason County Board of Education" that were responsive to his request for records "containing any information whatsoever concerning . . ." the investigation. The Board disclosed these records to Mr. Schumacher "without waiving [the] exemptions asserted in [its] initial response." The Board continued to withhold documents generated by, and maintained in the litigation files of, its attorney, Mr. Crawford, reaffirming its position that those records "are privileged attorney-client communications created for the purpose of rendering legal services . . ., are attorney work product, . . ." or otherwise protected from disclosure by the Rules of Civil Procedure, the Rules of Evidence, or enactments of the General Assembly.
Prompted by Mr. Schumacher's continuing objection to nondisclosure of affidavits and statements of third parties obtained by the Board in the course of the investigation, the Board made a final gesture of conciliation, in a letter dated November 10, 2004, by releasing "other documents . . . that are contained in the files of the Mason County Board of Education that may reference the 'investigation . . .,'" along with "bills for professional services from [Mr. Crawford] and payments made to [Mr. Crawford]." In the November 10 letter, Mr. Crawford advised:
Since the Open Records request was mailed to the Mason County Board of Education under the Open Records Act and was not served to me under the discovery rules 2 under the Kentucky Rules of Civil Procedure, I am assuming that the documents requested by Mr. Schumacher were documents that were on file in the files of the Mason County Board of Education which we had supplied either in our response on October 26th or which are attached hereto or are attached to our supplemental response.
As you can imagine, I have prepared on my own documents for my own use which are not in the files of the Mason County Board of Education but are contained in my professional files in my office as attorney work products and which are privileged attorney-client correspondence documents which are not being produced and which have not been produced because they are not subject to the Open Records Act because they have not been and are not on file with the Mason County Board of Education and are prohibited or restricted from disclosure and are otherwise confidential . . . [based on the authorities previously cited].
Continuing, Mr. Crawford observed:
I am unaware of any authority under the Open Record Act whereby the Attorney General can command the disclosure of documents which are not on file or deposited with a public agency but were created by an attorney and are stored by an attorney in the files of an attorney and which are privileged attorney work products or privileged attorney-client communications and which are not maintained as files of the public agency.
[T]he billings submitted by me to the Mason County Board of Education are general in nature and are not itemized by project. I have represented the Mason County Board of Education over a period of time on a number of activities and this is not the only piece of litigation nor the only legal matter for which I have been and am currently advising the Mason County Board of Education. If I had to itemize all of the services provided to the Mason County Board of Education, I would have to divulge confidential attorney-client information as to what legal matters I am advising and representing the school district on including, this investigation and the litigation filed by Mr. Schumacher. I possibly could isolate the total amount of legal fees attributable to the investigation portion of this rumor referenced by Mr. Schumacher, but under the privileged attorney-client communication doctrine, I cannot disclose to the Attorney General nor Mr. Schumacher what other legal matters and services I have provided advice to the Mason County Board of Education on in those billings.
It is the decision of this office that the Board's partial denial of Mr. Schumacher's request can be sustained only upon a showing that particular documents, or portions of documents, withheld fall within the parameters of one or more of the cited exemptions. In so holding, we attempt to strike a reasonable balance between the sacrosanct privilege that exists between the public agency, as client, and its attorney, and the public's right to hold the agency accountable through records access.
To begin, we reject the Board's attempt to classify records relating to the investigation and maintained in Board files as public records within the meaning of KRS 61.870(2), and records relating to the investigation and maintained in the "professional files" of the Board's attorney as nonpublic records which are inaccessible under the Open Records Act. Prior decisions of the courts and this office support the view that an agency's attorney holds such records at the instance of and as custodian on the agency's behalf. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record." City of Louisville v. Brian Cullinan, No. 1998-CA-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App. 1999) (enclosed) . 3
In City of Louisville v. Brian Cullinan, above, the Kentucky Court of Appeals rejected the City's argument that documentation of legal expenses billed to the City by its contract attorneys were not public records because the City was not in possession of the items requested, and therefore not the custodian of the records. The court reasoned:
There is no doubt that the records requested were prepared, owned, and used at the instance of the City. The records are nothing more than the routine billing documents generated by a law firm in representation of a client. Here, they are essentially the City's documents . . . .
City of Louisville at 4. On this basis, the court concluded that "the law firm was holding the documents at the instance of and as custodian on the City's behalf, thus conforming to KRS 61.870(6)," Id., and affirmed the circuit court's judgment ordering production of the records. Accord, 04-ORD-123 (enclosed) and authorities cited on pages 3 and 4. Here, as in City of Louisville, above, the disputed records in the custody of the Board's attorney "were prepared, owned, and used at the instance of the" Board, and are "essentially the [Board's] documents . . . ." They are clearly public records, for purposes of KRS 61.870(2) analysis, but open records only if they do not qualify for exclusion under one or more of the cited exemptions.
Unfortunately, the record on appeal does not contain sufficient proof to establish that the documents withheld qualify for exclusion under KRS 61.878(1)(j) and/or KRS 61.878(1)(l), 4 incorporating CR 26.02(3) and KRE 503 into the Open Records Act. The Mason County Board of Education chiefly relies on KRS 61.878(1)(l) and the attorney-client privilege and work product doctrine to withhold documents generated by, and maintained in the files of, its attorney, Mr. Crawford, relating to the investigation and including affidavits and written statements obtained in the course of the investigation. However, there is insufficient evidence before us that the particular records withheld were prepared in the course of the attorney-client relationship, represent a communication by or to the client on the subject matter for which professional advice was sought, or have been handled in a confidential manner. Nor is there sufficient evidence in the record to support the claim that the records withheld were "prepared in anticipation of litigation" and represent "the mental impressions, conclusions, opinions, or legal theories of an attorney . . . ." CR 26.02(3).
In 00-ORD-10, this office held that the City of Louisville did not meet its statutory burden of proof in denying a request for records relating to ongoing litigation on the basis of KRS 61.878(1)(i) and (l), inter alia, and the attorney-client privilege and work product doctrine, because the City "did not adequately explain how the cited exceptions apply to the records withheld. " 00-ORD-10, p. 11 (enclosed) . There we noted that "[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." 00-ORD-10, p. 11 citing 97-ORD-41, p. 4. A copy of that decision is attached hereto and incorporated by reference.
Here, as in 00-ORD-10, we emphasize that KRS 61.880(1), as construed by the Kentucky Court of Appeals, requires the agency "to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), and that pursuant to KRS 61.880(2)(c), the agency carries the burden of proof. Further, we emphasize, by way of example, that an agency might meet this requirement, when it receives a request for records shielded by the attorney-client privilege or work product doctrine, by characterizing a document, or group of documents, as, e.g., "'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal,' and deny[ing] 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. " 00-ORD-10, p. 10, citing 97-ORD-41, footnote 2, p. 7. Finally, we emphasize that the decision we reach should not be construed to abrogate the privileges invoked or to mean that the Board's "reliance on the cited exceptions was entirely misplaced, only that it failed to provide sufficiently detailed information in response to [Mr. Schumacher's] request." 00-ORD-10, p. 11. Here, as in 00-ORD-10, the Mason County Board of Education "may properly withhold those records which are privileged, or which fall squarely within the parameters of KRS 61.878(l) [and/or] (j)," but the Board must articulate, in writing, the reasons for withholding a record, or group of records, with sufficient particularity and detail to enable the public to assess the propriety of its actions. Accord, 98-ORD-124; 98-ORD-179; 00-ORD-111.
With respect to records documenting the rendition of legal services by public agency counsel or private counsel under agency contract, the following principles have been established:
[R]ecords which reflect the general nature of services rendered are not protected by the attorney client privilege. . . . Only those records which disclose communications by the client or attorney in relation to the specific matter for which the attorney was retained can be withheld from public inspection [, e.g., substantive legal matters].
OAG 92-92, p. 6. "This resolution of the issue of the applicability of the attorney client privilege to [billing] records," we concluded, "subserves both the [agency's] interest in protecting privileged information and the public's interest in monitoring the [agency's] activities to insure that it is properly executing its statutory function and pursuing the public good," Id. at 6. Thus, public agencies must disclose records which describe, in general terms, the nature of the services rendered such as, for example, "research," "witness interviews," "discussions with client," but may exercise their discretion in withholding records, or redacting portions of records, which disclose substantive matters and litigation strategy. See also, OAG 92-14, 95-ORD-18; 99-ORD-14. The Board should be guided by these principles in resolving any remaining issues relating to attorney billing records.
With respect to affidavits and witness statements obtained in the course of the investigation, it is unclear whether any set of facts would justify invocation of the attorney-client privilege or work product doctrine as the basis for denying access. These records, representing the views expressed by third persons, do not appear to qualify as confidential communications between the Board and its attorney or as "the mental impressions, conclusions, opinions, or legal theories of [its] attorney" concerning this matter. Nevertheless, the Board also relied upon KRS 61.878(1)(j) in denying Mr. Schumacher's request, and may withhold records compiled in the course of its investigation pursuant to this exception until the investigation is concluded and final action is taken, including the decision to take no action.
KRS 61.878(1)(j) authorizes public agencies to withhold:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In construing this provision, the Kentucky Court of Appeals held, in an early open records opinion, that "investigative files . . . are exempt from public inspection as preliminary under KRS 61.878(1) [(i)] and [(j)]" unless and until adopted as part of the agency's final action.
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 660 (1982). Similarly, in
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953, 956, 957 (1983), the Court held that "documents defined in subsections [(i)] and [(j)]" remain excluded from public inspection under these provisions "unless . . . adopted and made a part of the Board's final action. "
Finally, in University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373, 378 (1992), the Kentucky Supreme Court held 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." This office has not been apprised of any developments that would signal conclusion of the investigation and final action in this matter. Accordingly, we find that regardless of the status of these records under KRE 503 and CR 26.02(3), the disputed affidavits and witness statements were properly withheld under authority of KRS 61.878(1)(j).
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.
Jeffrey L. SchumacherSchumacher Law Office217 Wall StreetP. O. Box 607Maysville, KY 41056
Timothy Moore, SuperintendentMason County Schools2nd & Limestone StreetP.O. Box 130Maysville, KY 41056
Timothy CrawfordCrawford Law Offices317 North Main StreetMain at Center StreetsCorbin, KY 40701
Footnotes
Footnotes
1 In its denial, the Board explained that no depositions had been taken.
2 We note that this office has long held that the presence of a dispute in the courts does not suspend a public agency's duties under the Open Records Act when it receives a request for public records from a litigant. See discussion at pages 7 and 8 in 00-ORD-10 (enclosed) .
3 Although City of Louisville v. Brian Cullinan is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion that a public agency cannot frustrate access to public records by allowing them to indefinitely reside in the custody of a private agent.
4 KRS 61.878(1)(l) authorizes nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.