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 Franklin County Board of Education violated the Kentucky Open Records Act in partially denying a series of requests submitted by Staff Reporter Molly Williamson on behalf of The State Journal between January 5, 2005, and June 30, 2005, for copies of "all reports, papers, memos, notes, faxes, e-mails, photographs, discs, diskettes, recordings and any correspondence" reviewed by the Board during the course of three separate but related investigations into the alleged misconduct of Superintendent Monte E. Chance. Because the third investigation is ongoing and no final action has been taken, the Board properly denied Ms. Williamson's request for related records pursuant to KRS 61.878(1)(i) and (1)(j). Likewise, the Board is authorized to withhold those records which are confidential communications between attorney and client, and has met its burden of proof in this case by identifying and generally describing the records withheld on this basis. With the exception of not identifying the female school district employee whose personal relationship with Mr. Chance prompted the initial investigation, the Board properly relied upon KRS 61.878(1)(a), as construed in prior decisions by this office, in redacting the identifying information of the complainants, potential witnesses, and uninvolved individuals from the records provided to Ms. Williamson.
By letter directed to Board attorney Robert L. Chenoweth on January 5, 2005, Ms. Williamson requested "all documents pertaining to Franklin County Public Schools Superintendent Monte E. Chance and the Franklin County [B]oard of [E]ducation investigation of Mr. Chance." More specifically, Ms. Williamson asked "to see all reports, papers, memos, notes, faxes, e-mails, photographs, discs, diskettes, recordings and any correspondence relating to Mr. Chance and the investigation, which recently ended with the school board's Jan. 3 public reprimand of Mr. Chance." On January 12, 2005, Mr. Chenoweth advised Ms. Williamson that he is not the official custodian of records for the Franklin County Schools or the Board, but has been authorized to respond on behalf of the Board. Citing KRS 61.878(1)(a), (i), (j) and (l), "as well as the doctrines of attorney-client privilege and attorney work product," Mr. Chenoweth denied Ms. Williamson's request for documentation related to the investigation of Mr. Chance. In addition, Mr. Chenoweth asserted that any documents created by his office do not constitute public records as that term is defined at KRS 61.870(2). 1
"In the main," Mr. Chenoweth contended that the records relative to the referenced investigation concerning Superintendent Chance "were created internally by [his] staff to apprise [him] of their activities relative to the investigation. There were no sworn written statements nor was anyone met with put under oath." No complaint was received that "in any way can be said to have precipitated the activities of" Mr. Chenoweth's office. Consequently, the final action taken by the Board on January 3, 2005, following the investigation by Mr. Chenoweth's office "cannot be said to [have] incorporated that document. See [Kentucky State Board of Medical Licensure v. The Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1983).]" A copy of the Board's final action nevertheless accompanied Mr. Chenoweth's response "even though earlier access has been provided."
As an additional basis for denying access at that time, the Board relied upon "the preliminary correspondence, preliminary recommendations exceptions to the Open Records Act, " citing 99-ORD-164 as authority for this position. Although there were not "in fact documents of the nature customarily created in a KRS 161.790 proceeding as relates to Mr. Chance, in view of the fact" that the time during which Mr. Chance could request a hearing on the public reprimand issued by the Board had not expired, the Board denied Ms. Williamson's request "consonant with the legal underpinnings of 99-ORD-164." In the Board's view, the records created during the course of the subject investigation were not subject to inspection "based upon KRS 61.878[(1)](l) in that a local board of education is required as a matter of law to promulgate personnel policies, including such relating harassment. See, e.g., KRS 160.290 and 160.340." According to Mr. Chenoweth, Board policy 03.162, a copy of which he enclosed, "takes on the force and effect of law and has a confidentiality provision believed pertinent to this matter. These same considerations are at work as to the exception set out in KRS 61.878[(1)](a)." 2 As further support, Mr. Chenoweth cites Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994).
Lastly, "and without waiving any of the above-referenced provisions of KRS 61.870 et seq.," Mr. Chenoweth further addressed the "attorney-client and attorney work product privileges" as follows:
As indicated hereinabove, many of the documents in the file of my office were created internally only for conveying progress on the investigation to me from my staff. Some of this information took the form of handwritten notes, while other information was printed in a "memo to file/RLC" manner. Although a photocopy of one or more pieces of such information was shared with my client, i.e., the members of [the Board], the very purpose of the attorney-client privilege existed as such confidential disclosures were made for the purpose of providing legal advice. The case law is believed clear the attorney-client privilege applies to communications between attorneys and their clients when the attorney acts in a counseling and planning role, as well as when an attorney represents a client in litigation. Moreover, the memos created by one or more of my staff, specifically an attorney and paralegal, are the work product of my office and contain mental impressions or legal conclusions and are absolutely privileged. See Hickman v. Taylor, 329 U. S. 495 (1947); Haney v. Yates, Ky., 40 S.W.3d 352, 356 (2000).
Based upon the evidence of record, there was no further communication between the parties until May 23, 2005, at which time Ms. Williamson requested the "complete investigation file of [Mr. Chance]," beginning with the grievance filed on January 31, 2005, and "ending with the May 16, 2005, exoneration of Mr. Chance." In addition, Ms. Williamson requested the "complete investigation file" concerning Mr. Chance "beginning last June with the grievance that Chance had an inappropriate relationship with a woman over whom he had supervisory responsibilities, which ended with the Jan. 3, 2005, public reprimand. " To clarify, Ms. Williamson asked for copies of "any and all documents the school board reviewed when considering whether to reprimand Mr. Chance both times." Included in her request were "any and all notes, memorandums, [etc.]" between "or among Mr. Chance and the board members, staff, teachers, school and/or district employees." Also, Ms. Williamson specifically requested any documentation or correspondence between Mr. Chance and Mr. Chenoweth from January 1, 2005, through May 20, 2005. In her view, all of the records requested "should be public record" and should no longer be covered under attorney-client privilege since the investigation is no longer active.
In a timely written response, Mr. Chenoweth partially denied Ms. Williamson's revised request on behalf of the Board. Having outlined Ms. Williamson's request, Mr. Chenoweth first clarified that the initial investigation commenced in November 2004 rather than June 2004. Citing the definition of "Custodian" codified at KRS 61.870(6), Mr. Chenoweth then acknowledged that his office is the custodian of those records determined to be "public records" pursuant to KRS 61.870(2) by virtue of having custody and control of the records generated during the investigation(s) conducted by his office at the request of the Board. Enclosed with Mr. Chenoweth's response were copies of "the documents that comprised the two investigations of Mr. Chance, with personal identifying information redacted pursuant to KRS 61.878(1)(a)." However, Mr. Chenoweth withheld or redacted "all notes, drafts, memoranda, and correspondence with the Board generated from [his] office as the Board's legal counsel" pursuant to KRS 61.878(1)(a), (j), and (l), a well as the attorney-client privilege and the attorney work product doctrine.
Reiterating the Board's previous argument relative to the records "created internally by his staff," and the first investigation of Mr. Chance, Mr. Chenoweth indicated that the complaint which prompted the second investigation was being included with identifying information redacted per KRS 61.878(1)(a) and Kentucky State Bd. of Medical Licensure, supra, 663 S.W.2d at 956 (holding that "once final action is taken by the Board, the initial complaints must be subject to public scrutiny"). Echoing his previous contentions as to the application of Board policy 03.162 as well as the attorney-client privilege and work product doctrine, Mr. Chenoweth correctly observed that the fact there is no longer an active investigation does not remove the records withheld "from the coverage and protection of the attorney-client privilege and attorney work product doctrine. "
In a letter dated June 1, 2005, Ms. Williamson renewed her request on behalf of The State Journal "for any and all documents the [Board] reviewed in relation to Mr. Chance." To be clear, Ms. Williamson wants "anything the [B]oard looked at, considered in the last seven months about Mr. Chance's performance as superintendent, Mr. Chance's [alleged] relationships with district employees or any other correspondence regarding Mr. Chance to him, to other employees, to [Mr. Chenoweth's] office or to the [B]oard." In response, Mr. Chenoweth provided Ms. Williamson with copies of the responsive records minus the notes, drafts, memoranda, and correspondence with the Board generated by his office as the Board's legal counsel, as well as any other documentation received from the school district in conjunction with their investigations of the Superintendent that are still under consideration by the Board. Quoting the language of KRS 61.878(1)(i) and (j), Mr. Chenoweth explained that the "documents relative to the referenced investigations concerning Superintendent Chance which are being withheld consist of information upon which the Board has yet to take any final action" and, as such, those documents are preliminary in nature and excluded from application of the Act. To summarize, the remainder of the Board's response is an almost verbatim account of the Board's previous responses.
On June 14, 2005, Ms. Williamson advised Mr. Chenoweth by letter that the "two letters concerning Chance's offer to retire were half of the documents" that she had requested, but there was "still a missing piece," namely, the "documents that prompted Chance to offer to retire." According to Ms. Williamson, there are allegedly e-mails that portray Mr. Chance as having a relationship with another district employee "or at least behaving in an inappropriate or unprofessional manner." Ms. Williamson believes that the Board read those e-mails and then Mr. Chance offered to retire. To avoid further confusion, Ms. Williamson clarified those are the records being sought. "To recap," Ms. Williamson wants "correspondence between Chance and other female employees -- besides his relationship with Karen Schneider -- that the [B]oard either reviewed or is reviewing" to determine whether he acted inappropriately or unprofessionally "with or to women he supervised."
By letter dated June 17, 2005, Mr. Chenoweth conceded that his office "has been engaged in what amounts to multiple, successive investigations of various alleged misconduct on the part of Monte Chance, Superintendent. " Two investigations have been concluded with final action being taken by the Board and, consistent with Kentucky State Bd. of Medical Licensure, the Board has provided The State Journal with copies of records associated with those investigations "save and except the documents protected by the attorney-client privilege and/or attorney work product doctrine. " As observed by Mr. Chenoweth, an investigation is still being conducted by his office into "certain conduct by Superintendent Chance that is still under consideration by the [Board]." Although the Board admittedly met with Mr. Chance concerning the subject matter of the investigation, and provided him with access to documentation collected during the investigation, Mr. Chenoweth is "unable to speculate as to what 'prompted' Superintendent Chance to submit a retirement notice which was subsequently withdrawn."
On June 30, 2005, Ms. Williamson once again submitted a request for copies of "all documents reviewed by the [Board] in relation to Superintendent Monte Chance." To be clear, Ms. Williamson sought "anything the [B]oard looked at or considered in the last seven months about Mr. Chance's alleged relationships with district employees" that "have been or would be subject to review by the [Board]." As an aside, Ms. Williamson clarified that she had "never asked" for the "internal memos or notes" exchanged by Mr. Chenoweth and his associates or the "draft documents or interviews" related to the investigation to which Mr. Chenoweth had denied access; Ms. Williamson "simply wants the documents the [B]oard reviewed." In her view, any records reviewed by the Board are open. Also, "the names of the e-mail senders and receivers and names within documents should not be redacted. " To conclude, Ms. Williamson asked for "the complete set of documents and the documents complete, meaning no redactions of names or information that should not be kept confidential."
By letter dated July 6, 2005, S. Shea Luna, Chenoweth Law Office, responded on behalf of the Board, reiterating the Board's arguments as framed in Mr. Chenoweth's letter of June 17, 2005, and incorporating by reference the Board's position as to the attorney-client privilege and/or attorney work product doctrine, both of which are incorporated into the Open Records Act by operation of KRS 61.878(1)(l). "Any documentation seen, reviewed, or considered by the Board" with respect to the current investigation is being withheld pursuant to KRS 61.878(1)(i) and (j) as previously indicated by Mr. Chenoweth. "With all due respect," simply because the Board may have reviewed the document(s) in connection with the ongoing investigation "does not automatically render the document an open record" as suggested by Ms. Williamson; the exceptions to the Act codified at KRS 61.878 still apply. In this assertion, the Board is correct.
Arguing that the requested records are "public records about public employees on which public action has been taken," and there is "no longer any semblance of privacy" since the investigations are not still ongoing, Ms. Williamson initiated this appeal by letter dated July 15, 2005. As to those records reviewed by the Board during the first two investigations, The State Journal emphasizes that the records received are responsive, but requests that the names be included. To reiterate, The State Journal would like "copies of all of the documents reviewed by the Board, including the e-mail which shows Chance was involved with another woman and which [The State Journal believes] prompted his retirement [offer]." According to The State Journal, these records are being withheld "under the guise of attorney-client privilege." With respect to those records related to the third/ongoing investigation, Ms. Williamson argues that if the information withheld "led to Chance's retirement offer and is linked with the first two investigations, it should be [open]" as Mr. Chance "was warned not to act inappropriately with women he supervised" and acted in violation of that reprimand if he had another relationship. Attached to Ms. Williamson's letter of appeal are copies of those records already provided to The State Journal as redacted by the Board.
Upon receiving notification of The State Journal's appeal from this office, Mr. Chenoweth elaborated upon the Board's position. By way of background, Mr. Chenoweth first observes:
As a preliminary matter, all five requests have appeared to relate to the Board's three investigations of alleged misconduct on the part of Superintendent Monte Chance conducted by this office at the Board's request. The first investigation began in November 2004 and ended on January 3, 2005, when the Board issued Superintendent Chance a public reprimand for failing to be honest and forthcoming regarding his personal relationship with a school district employee during this office's initial investigation. The second investigation began in February 2005 when a school district employee filed a grievance alleging sexual harassment and retaliation on the part of Superintendent Chance. The second investigation was concluded when the Board announced on May 16, 2005, there was no substantial evidence to support the grievant's claims and allegations. The third and last investigation began in March 2005 when information was retrieved during our office's second investigation of the Superintendent that was unrelated to the grievant's allegations. The Board considered this information as separate and ancillary to the second investigation and as such, this information was categorized as a third investigation of potential misconduct on the part of the Superintendent. The Board has yet to take any action on the third investigation. The third investigation is still under the Board's review; therefore, any information being considered in connection with the third investigation is clearly preliminary.
Addressing first the Board's redaction of identifying information from the set of responsive records provided to Ms. Williamson in June 2005 per KRS 61.878(1)(a), Mr. Chenoweth summarizes the applicable case law, including Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109, 110-111 (1981), Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992), and Zink v. Commonwealth, Ky. App., 902 S.W.2d 825-828 (1994). In Mr. Chenoweth's view, the Board properly applied the balancing test refined by the Kentucky Supreme Court in Kentucky Bd. of Examiners in redacting the names appearing on the records provided "because these individuals, which included the grievant, potential witnesses, and [total] strangers to the activities being investigated, had a personal privacy interest in protecting their identity from disclosure that outweighed the public's 'right to know' under the Open Records Act. " With respect to the grievant and potential witnesses, confidentiality is "paramount because such confidentiality not only encourages individuals to file harassment complaints by helping them to be free of public scrutiny and embarrassment but also encourages witnesses to come forward with any information pertaining to such harassment." Disclosing the identity of complainants and witnesses "would have an obvious chilling effect on prohibiting, targeting, and correcting harassment in the workplace."
Citing 99-ORD-39, the Board correctly argues the Attorney General has also recognized that redacting the names of complainants and witnesses does not violate the Act in the context of a sexual harassment investigation. "Similarly, Ms. Williamson has requested information pertaining to alleged misconduct by and disciplinary action taken against a Board employee, Superintendent Chance, including information related to alleged sexual harassment on the part of the Superintendent. " Unlike the University involved in 99-ORD-39, the Board "recognized the public had a right to be informed of the Superintendent's alleged misconduct and that since the Board had already taken final action with respect to the first two investigations, [] any preliminary status these documents may have assumed had been lost." As such, the Board properly disclosed all requested records not otherwise exempt "and in compliance with [99-ORD-39], simply redacted the identity of the grievant and all potential witnesses pursuant to KRS 61.878(4)." With respect to the identities of those named on the records "who potentially had no involvement with or relation to the activities being investigated, the Supreme Court of Kentucky has noted that "'no public interest would be served by a complete disclosure' " of the identities of such individuals. See Board of Education of Fayette County, 625 S.W.2d at 111. In this case, protecting the privacy of those individuals who had no involvement with the activities under investigation "outweighed the public's right to know because disclosure of their [identities] would have served no legitimate public purpose." Citing Beckham, Mr. Chenoweth further contends that the Board was arguably prohibited from disclosing the identities of those individuals without consent.
On appeal, the Board reiterates that the records withheld were not related to the first two investigations as Ms. Williamson suggests, but are related to the third and "ongoing investigation still under the Board's consideration." As the Board has yet to take final action with regard to this matter, the records remain preliminary and are therefore exempt pursuant to KRS 61.878(1)(i) and (j). Echoing the Board's previous argument as to those records protected by the attorney-client privilege and the attorney work product doctrine, Mr. Chenoweth emphasizes that the Board has provided to Ms. Williamson copies of all other records in its possession related to the first two investigations with identifying information redacted. In sum, the Board's position is that it has complied with the Act in responding to the series of requests submitted by Ms. Williamson.
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:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:
(1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer.
. . .
(4) Between representatives of the client or between the client and a representative of the client[.]
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 the requests at issue, the Board has cited the applicable law, but arguably failed to describe the records with sufficient specificity to enable the public to assess the propriety of the Board's reliance upon the privilege without defeating the purpose for which the privilege exists. Although the Board has established that the records withheld were generated during the course of the attorney-client relationship, and represent communications by or to the client relating to the subject matter upon which professional advice was sought, the record is devoid of evidence that the records were maintained in a manner designed to ensure confidentiality, as required to successfully invoke the attorney-client privilege. 3 In 04-ORD-187, the Attorney General held that the Cabinet for Health and Family Services 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" as the Cabinet had offered no proof that all of the records withheld met this criteria. Id., pp. 16-17. To the contrary, the Cabinet declined to "more fully identify these documents," or violate the privilege "by even characterizing the nature" of the records withheld. Such is not the case here, although the Board's response presents a close question in our view.
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 Board has provided more than a "bare assertion" in support of its claim that unidentified responsive records, including records generally described as handwritten notes and memos, constitute privileged attorney-client communications thereby satisfying its burden or proof, albeit minimally. "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. See also 01-ORD-246. 4 Because the Board's response falls somewhere between the prohibited generic determination or blanket denial, and the federal standard of an "itemized index" never required by this office, the Attorney General concludes that the Board did not err in withholding those records generally described on the basis of the attorney-client privilege and/or work product doctrine. Although the Board is certainly permitted to withhold those records which qualify for exclusion as confidential communications between attorney and client, and this office does not dispute that the records at issue fall within this category, this office reminds the Board to identify any public records to which the Board denies access in response to future requests with greater specificity, to the extent possible, and articulate its denial in terms of the privilege consistent with the foregoing authorities.
In light of this determination, the question becomes whether the Cabinet properly relied upon KRS 61.878(1)(a) in redacting the identifying information of the complainant, potential witnesses, and uninvolved individuals from those records provided to The State Journal relative to the two concluded investigations of Mr. Chance. With one exception, the Board's position is supported by governing precedent.
Redaction of identifying information from the records provided per KRS 61.878(1)(a)
"The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'" Beckham, supra, at 577, citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records are not subject to public inspection. Among those records excluded from application of the Open Records Act absent a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). Based upon this exclusionary language:
[W]e must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality . . . suggest[ing] an absence of legislative intent to create unrestricted access to records.
Beckham, supra, at 578; 03-ORD-084, p. 4. When denying access to public records pursuant to this exception, the burden of proof rests with the agency. KRS 61.880(2)(c).
In Kentucky Bd. of Examiners, supra, the Kentucky Supreme Court established the standard by which this office must judge the propriety of a public agency's reliance upon KRS 61.878(1)(a) as a basis for denying access to public records. Recognizing that the Act "exhibits a general bias favoring disclosure, " the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. Logic dictates that the circumstances of a particular case will affect the balance. Id. at 328. As observed by the Court, KRS 61.878(1)(a) contemplates a "case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof." Id. Resolving the question of whether a public agency properly relied upon KRS 61.878(1)(a) in denying access to public records necessarily turns on whether the offense to personal privacy that would result from disclosure of the requested information outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id. As noted, the "clearly unwarranted" standard "tips the scales in favor of disclosure. " 03-ORD-084, p. 4.
To reiterate, the public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Bd. of Examiners, supra, at 328. Generally speaking, inspection of public records may reveal whether the public servants are indeed serving the public, "and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Id. Echoing this view, the Court of Appeals refined the standard articulated by the Supreme Court in Kentucky Bd. of Examiners in Zink. In discussing its "mode of decision," the Court of Appeals observed:
[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Kentucky Bd. of Examiners] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
Having recognized a cognizable privacy interest in the requested forms since much of the information contained therein touched upon "the personal features of private lives," the Court turned to the issue of whether an invasion of privacy was warranted by weighing the public interest in disclosure against the privacy interests involved. Id. Of particular relevance here, the Court observed:
[O]ur analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 774-775, 109 S. Ct. 1468, 1482-83, 103 L. Ed. 2d 774, 796-97 (1989). . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink at 828-829 (emphasis added).
Because the information at issue is definitely of a personal nature, the question becomes whether disclosure of the information redacted would further a purpose related to the Open Records Act. If not, the privacy interests of those individuals whose identifying information was redacted necessarily outweighs the public interest in disclosure. In making this determination, the Attorney General is guided by the general principle that the Open Records Act "exhibits a general bias favoring disclosure, " Kentucky Bd. of Examiners, supra, at 327, and the legislative mandate that the "exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," codified at KRS 61.871.
In 98-ORD-45, the Attorney General was asked to determine whether the Cabinet for Families and Children had properly relied upon KRS 61.878(1)(a), KRS 61.878(1)(l) and KRS 18A.138 in denying a request for records "pertaining to any sexual harassment complaints, charges or legal actions, in any forum involving Cabinet employees within the last five years, . . ." Given the parallels between 98-ORD-45 and this appeal, the following analysis applies with equal force here:
The Attorney General has considered the question of access to records relating to public employee misconduct, and unfounded accusations of misconduct, in various factual contexts. Although we are mindful of the principle that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context," Board of Examiners at 328, we have generally held that the privacy interest of public employees who have been disciplined for, or exonerated of charges of, misconduct in the course of their employment is outweighed by the public interest in monitoring agency action. At pages 2 and 3 of 96-ORD-86, we observed:
Disclosure of such records is not, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:
OAG 91-41, p. 5.
With specific reference to records relating to allegations of sexual harassment, we have stated:
96-ORD-86, pp. 3, 4. Recognizing that sexual harassment complaints "are of a uniquely sensitive nature," we nevertheless concluded that "conduct giving rise to such complaints can only be characterized as misconduct of the most egregious character, and a matter in which the public has at least as great, if not a greater, interest than other forms of misconduct. " 96-ORD-86, p. 4.
We affirm that position today as to both substantiated and unsubstantiated complaints of sexual harassment against employees of the Cabinet. On this subject, the Attorney General has reasoned:
97-ORD-121, p. 8.
As the Board has conceded this point with respect to those responsive records which are not preliminary or otherwise protected, further elaboration as to the accessibility of such records in general is unnecessary. However, the Attorney General has consistently recognized that portions of the responsive records containing personally identifiable information implicating significant privacy interests that are unrelated to the specific allegations at hand may be withheld on the basis of KRS 61.878(1)(a). 02-ORD-231, pp. 6-7; 98-ORD-45, p. 6 ("This is not to say that individual notations appearing on those records may not be withheld on the basis of KRS 61.878(1)(a)"). Pursuant to KRS 61.878(4):
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination.
In redacting names and identifying information from the records provided, the Board has merely complied with this provision.
As in 99-ORD-39, this office believes that "the [Board] may take reasonable steps to protect the identity of the complainant by masking her name, and any personally identifiable information, which appears in the complaint, investigative report, and reprimand [as well as related documentation] along with the names of other complainants and witnesses." Id., p. 13. In our view, the unique considerations that weigh against disclosing the identity of an individual alleging sexual harassment do not apply to the female employee with whom Mr. Chance apparently engaged in a consensual but inappropriate relationship with thereby prompting the initial investigation, especially as to those records generated on public computers and/or during business hours such as the e-mails of record. To the contrary, the employee in question violated the public trust by engaging in improper conduct relative to her official duties just as Mr. Chance did. While the content of records documenting that relationship is definitely personal in nature, and revealing her identity will undoubtedly result in embarrassment for all concerned, her privacy interests are significantly reduced due to the voluntary nature of her conduct. As a school district employee in whom the public trust is also reposed, the public has a heightened interest in monitoring her conduct; whatever privacy interest the employee may have in protecting her identity is therefore clearly inferior to the public's interest in disclosure under the circumstances. A review of 05-ORD-046, pp. 4-6, and 05-ORD-005, pp. 8-9, adopting the reasoning of Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001), further validates this conclusion. With the possible exception of those in law enforcement, such as Officers Palmer and Driggers, close scrutiny is never more justified than with respect to those entrusted with educating our youth.
Application of KRS 61.878(1)(i) and (j) to those records relating to the third investigation
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. 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 at 6-8 (1995)(recognizing that the "concept of governmental confidentiality has not been totally diluted by the Open Records Act" ).
Both this office and the courts have construed the language of KRS 61.878(1)(i) and (j), upon which the Board relies in denying access to those records relating to the ongoing investigation, 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.
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).
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 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). 5
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," 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 line of decisions is equally applicable on the facts presented, though a contrary outcome is dictated. See 99-ORD-164. Since the Board has not taken any final action relative to the third investigation into the conduct of Mr. Chance it logically follows that the records have not been adopted as the basis for such action. See 01-ORD-83 and 01-ORD-47 (both of which reaffirm the validity of 97-ORD-168); 01-ORD-83 (which provided this office with the opportunity to clarify when a preliminary document becomes subject to public inspection). 6 Accordingly, the requested records remain preliminary in nature; therefore, the Board properly relied upon KRS 61.878(1)(i) and (j) in denying The State Journal's request as to those records.
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 In 05-ORD-007, this office rejected a similar attempt by the Mason County Board of Education to classify records relating to the subject investigation that were maintained in the "professional files" of the Board's attorney as private records which are inaccessible under the Open Records Act, rather than public records within the scope of KRS 61.870(2) like those maintained by the Board. Citing City of Louisville v. Cullinan, No. 1998-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App. 1999), the Attorney General observed that prior decisions of this office and opinions by the courts support the view that an agency's attorney holds such records "at the instance of and as custodian on the agency's behalf." Id., p. 5. "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." Cullinan, supra; 05-ORD-007, p. 5. As in 05-ORD-007, this office concludes that any records "prepared, owned, and used at the instance of the" Board are "essentially the [Board's] documents . . . ." Id. (citation omitted). Accordingly, the records "created by" Mr. Chenoweth's office on behalf of the Board are clearly public records for purposes of the Open Records Act, but are properly characterized as open records only if one or more of the cited exceptions does not apply.
Although Cullinan is an unpublished opinion that cannot be cited or used as authority in any other case or any court of this state under Kentucky Rules of Civil Procedure (CR) 76.28(4)(c), Cullinan is indicative of the view the courts would presumably adopt unless and until a contrary opinion is published.
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2 In our view, this argument is unpersuasive as the cited policy, a copy of which is of record, contains no reference to the Open Records Act, nor is the confidentiality provision, which simply mandates that district employees involved in the investigation of complaints "shall respect, as much as possible, the privacy and anonymity of all parties involved," necessarily determinative in this context. See 98-ORD-45, pp. 7-10, in which this office rejected a similar argument by the Cabinet for Health and Family Services (then Families and Children), as to the effect of the Executive Order at issue.
3 Likewise, it is not entirely clear based upon the limited description provided that the records withheld contain the "the mental impressions, conclusions, opinions, or legal theory of an attorney or other representative" of the Board concerning related litigation as required to qualify for exclusion under the attorney work product doctrine. 98-ORD-124, p. 8. To clarify, this office merely finds that the requisite specificity is lacking-nothing more, nothing less.
4 In 00-ORD-111, for example, 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.
5 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).
6 In rejecting the agency's position that aninternal 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.