Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Bullitt County Child Support Services (BCCSS) relative to the request of James D. Winchell for certain BCCSS records violated the Open Records Act. For the reasons that follow, we find that BCCSS must provide Mr. Winchell with copies of any existing records in its custody which are responsive to his request unless it can meet its burden of proof by articulating a basis for denying access in terms of the exceptions set forth at KRS 61.878(1)(a) through (n) and BCCSS failed to meet its burden of proof that the requested record are exempt from disclosure under the attorney-client privilege.
By letter dated June 29, 2006, Mr. Winchell submitted the following request to BCCSS:
1. A copy of your office's current contract with the Commonwealth of Kentucky or any of its agencies; and
2. Any other documents that set forth the duties of your office, including those tasks which your office is required to do on behalf of those seeking the government's assistance in collecting child support and those things which your office is prohibited from doing.
I specifically request copies of the requested records pursuant to KRS 61.874 and I will pay a reasonable fee for copying said records and I will pay in advance upon notice of the fee.
By letter dated July 5, 2006, Mark A. Shouse, responding on behalf of BCCSS, advised:
I am in receipt of your open records request dated June 29, 2006. Please refer your request to Cabinet for Health and Families, Child Support, P. O. Box 2150, Frankfort, KY 40602. Upon receipt, the Cabinet will advise you of the expense of copying requested documents.
In a follow-up letter to Mr. Shouse, dated July 10, 2006, Mr. Winchell stated, that as a result of their conversation that morning, he believed that Mr. Shouse's response of July 5, 2006, did not comply with the Open Records Act and that he should not have to go to Frankfort to inspect documents which are kept in BCCSS office in Shepherdsville. He reiterated that Mr. Shouse had advised him that the office might have records requested in his request # 2, but had indicated this information might be contained in manuals that could be as large as 400 pages. Mr. Winchell then requested that the documents be produced for his inspection at a reasonable time during his regular business hours and if he needed to make a copy of all or part of the records, he would identify what records he wanted copies of at that time.
By letter dated July 21, 2006, Mr. Winchell initiated the instant appeal. He argued in part that the requested records were public records and the July 5, 2006 response of BCCSS refusing to produce the records and its failure to respond to his subsequent request of July 10, 2006, violated the Open Records Act.
After receipt of notification of the appeal, Mr. Shouse provided this office with a response to the issues raised in the appeal. In his response, he stated, in relevant part:
KRS 61.872[4] states:
"If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. "
Bullitt County Child Support Services is under contract to provide legal services to the Cabinet for Families and Children, and so does not have custody and control of the public records requested. These records are in the custody and control of the Cabinet's Division of Child Support. Therefore, the response sent to Mr. Winchell on July 5, 2006, directing him to contact the Cabinet for Families and Children and providing contact information for the Cabinet, satisfies the provisions of the statute.
KRS § 61.878 exempts certain public records from inspection. OAG 88-32 states that documents may be withheld from public inspection if the documents come within the attorney-client relationship. Bullitt County Child Support Services is contracted to provide legal services to the Cabinet for Health and Family Services and represents the Cabinet. Accordingly, our office referred the Complaining Party to the custodian of record. Therefore, the denial of public inspection of the requested documents, outlining the attorney-client relationship, satisfies the provisions of KRS § 61.878.
It is unclear from the record before us whether the BCCSS does have copies of the requested records, but claims that the Cabinet for Families and Children is the "official custodian" of the requested records and the request must be made to the Cabinet or BCCSS does not have copies of the requested records in its possession.
If the BCCSS has copies of the requested records in its possession, but takes the position that the request must be made to the Cabinet as the "official custodian" of those records, its position is misplaced. In 98-ORD-100, this office rejected the argument that a public agency which prepares, owns, uses, possesses, or retains a public record is relieved of its clearly established duties under the Open Records Act simply because the record is in the custody of another agency from which it can more appropriately be obtained. There, the Lexington-Fayette Urban County Government asserted that it was the "casual possessor" of records in another agency's custody, and not the "official custodian, " and that it therefore could not honor a request for those records. On the basis of KRS 61.870(2) and a series of open records decisions, we held that:
there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card) ; and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet). The weight of recent authority indicates that the concept of casual possession, which has no statutory basis, has been all but discarded.
The BCCSS does not maintain that it does not have custody of the records requested. If this were the case, KRS 61.872(4) plainly states that it would discharge its statutory duty by so notifying the requester and furnishing him with the name and location of the official custodian of the record. The facts before us are more closely akin to the facts presented in OAG 90-71, OAG 91-21, 96-O RD-7, 98-ORD-17, and 98-ORD-100. These decisions firmly establish that an agency cannot avoid its duties under the Open Records Law by deferring to another agency, but must instead determine, within three working days of receipt of the request for records in its custody and control, whether to honor the request, and notify the person making the request of its decision. KRS 61.880(1). If BCCSS does not have all or some of the requested records, it has an obligation to affirmatively so advise Mr. Winchell. 99-ORD-98; 99-ORD-150. Accordingly, BCCSS must provide Mr. Winchell with copies of any existing records in its custody which are responsive to his request unless it can meet its burden of proof by articulating a basis for denying access in terms of the exceptions set forth at KRS 61.878(1)(a) through (n). Until the BCCSS so responds, it stands in violation of the Open Records Act.
The BCCSS, in its supplemental response, argues that the requested records are exempt from inspection because the attorney-client relationship due to the BCCSS's contract to provide legal services to the Cabinet. We reject this argument. In fact we rejected a similar argument in 06-ORD-096, where we upheld the public's right of access to a requested contract between the Bullitt County Attorney and the Cabinet for Health and Family Services for civil collection of child support.
Moreover, BCCSS has failed to meet its burden of establishing how other documents that set forth the duties of BCCSS, including those tasks which it is required to do on behalf of those seeking the government's assistance in collecting child support and those things which it is prohibited from doing, would be qualify for exemption from disclosure under the attorney-client privilege. In 05-ORD-007, this office found that the record on appeal contained insufficient evidence to establish that the documents withheld qualified for exclusion under the attorney-client privilege, citing KRS 61.878(1)(l) and CR 26.02(3) and KRE 503. Here, we find that BCCSS fails to present proof that the particular records withheld were prepared in the course of the attorney-client relationship, represent a communication by or to the client agency 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 requested 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). BCCSS may properly withhold those records that are privileged, or that fall squarely within the parameters of KRS 61.878(1)(l), only if it can 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. 05-ORD-136. Under these facts, if the requested records are in BCCSS possession, it must make them available for Mr. Winchell's inspection.
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.
James D. WinchellAttorney at Law176 Highway 44 WestP. O. Box 6566Shepherdsville, KY 40165-6566
Mark A. ShouseBullitt County Child Support ServicesP. O. Box 1097Shepherdsville, KY 40165-1097
Walter A. SholarBullitt County AttorneyCourthouse, 300 Buckman StreetP. O. Box 1446Shepherdsville, KY 40165-1446