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 City of Frankfort violated the Kentucky Open Records Act in partially denying the request of Martha C. Gray to inspect and copy "any and all records that the City of Frankfort or the City Solicitor may have gathered regarding the March 4, 2007, arrest of Natalie Wilkerson, including but not limited to any and all recorded and transcribed witness statements." More specifically, the question presented, since Ms. Gray is now in possession of the only existing statements, recorded or transcribed, has become whether the City violated the Act in withholding the handwritten "rough notes used to prepare the signed statements" of witnesses on the basis of KRS 61.878(1)(h) since the related enforcement action "is not complete," pursuant to 61.878(1) as "attorney work product that would not be subject to discovery under the [Kentucky Rules of Civil Procedure (CR)]" and "because they are documents within the meaning of KRS 61.878(1)(i)." Because the City has failed to show any harm that would result from premature release of the information, this office cannot affirm the denial on the basis of KRS 61.878(1)(h) ; likewise, the notes in dispute cannot be withheld, in their entirety, under the work-product doctrine, codified at CR 26.02, but any portions which are properly characterized as "the mental impressions, conclusions, opinions, or legal theory of an attorney or other representative" of the City may be redacted per KRS 61.878(4). Although the documents are "notes" or "drafts" within the meaning of KRS 61.878(1)(i), this argument is equally unsuccessful insofar as the notes formed the basis of the final witness statements to which Ms. Gray has been provided access; however, those portions of the notes which are not mirrored by the statements do not forfeit their preliminary status.
By letter dated April 30, 2007, Ms. Gray initiated this appeal challenging the failure of the City to respond in a timely manner, 1 noting that Records Custodian/City Clerk Ramona Newman had advised her that as of that morning, "the request had been forwarded to City Solicitor [Robert C.] Moore but that she had received no response." On the same day, Mr. Moore responded on behalf of the City to Ms. Gray's request, advising that "a copy of the Uniform Offense Report and Uniform Citation issued to Ms. Wilkerson is available for review and copying." Citing KRS 61.878(1)(h), Mr. Moore denied Ms. Gray's request as to any recorded and transcribed witness statements obtained by the City Solicitor "since the enforcement action with respect to Ms. Wilkerson is not complete." In addition, Mr. Moore denied the request "as attorney work product. "
Upon receiving Mr. Moore's response, Ms. Gray supplemented her appeal by letter dated May 1, 2007. In her view, KRS 61.878(1)(h) does not apply because the City "is not a law enforcement agency nor is it an agency that is engaged in an enforcement action or administrative adjudication that relates to this particular incident. Simply stated, there is no 'enforcement action' pending against Ms. Wilkerson to which the City of Frankfort is a party" so there is no action or adjudication to complete. Similarly, Ms. Gray believes that prior decisions of this office confirm that KRS 61.878(1)(l) "does not justify the City Solicitor's refusal to turn over the requested records under a claim of privilege for attorney work product since, among other things, the requested witness statements are just that -- statements that represent the views and impressions of third persons." In other words, they "do not qualify as confidential communications between the City of Frankfort and its attorney. Nor do the requested statements qualify as 'the mental impressions, conclusions, opinions, or legal theories' of City Solicitor Moore concerning this matter," for the same reasons.
There is a criminal case pending against Ms. Wilkerson in the Franklin County District Court and County Attorney Rick Sparks is responsible for prosecuting that case. However, Mr. Sparks apparently indicated to Ms. Gray "and others on more than one occasion that he maintains an 'open file' policy when it comes to criminal prosecutions and that any and all records he obtains that relate to the pending case against Ms. Wilkerson will promptly be disclosed." Ms. Gray asserts that the City, "through its Solicitor [Mr. Moore], has been conducting an ill-defined 'investigation' into the circumstances surrounding Ms. Wilkerson's arrest on March 4, 2007 during a building fire, and that this investigation is being conducted independently of any criminal proceeding, administrative enforcement action, or pending civil suit." To clarify, "there is no pending civil suit."
Upon receiving Ms. Gray's supplemental response, Mr. Moore replied on behalf of the City. As explained by Mr. Moore, City of Frankfort Police Officer Sutton cited Ms. Wilkerson for several offenses, "including resisting arrest, disorderly conduct and assault third, police officer"; the Frankfort Police Department is investigating this matter, "and any statements taken by the City Solicitor were taken as a part of the investigation of the Police Department. Ms. Wilkerson's case is currently pending in the Franklin District Court and has not been resolved." Since any witness statements "were obtained for use by the City of Frankfort Police Department with respect to the enforcement of the citations issued to Ms. [Wilkerson], they are exempt" from inspection until the case involving Ms. Wilkerson is concluded according to Mr. Moore. In the alternative, Ms. Gray's request was denied "pursuant to KRS 61.878(1)[(l)]" because the witness statements obtained by the City Solicitor "are exempt from discovery in any civil action as attorney work product. While there is no civil litigation pending at this time, statements have been made indicating that there is the potential for civil litigation arising out of Ms. Wilkerson's arrest. " Accordingly, Mr. Moore argues that any statements taken "are attorney work product that would not be subject to discovery under the civil rules."
In a letter directed to Mr. Moore on May 14, 2007, Ms. Gray advised that Rick Sparks had given her "a file folder containing all of the information that he has in his possession regarding this case. According to Rick, you have assured him that his case file now includes everything obtained during your own investigation." That being said, Ms. Gray asked Mr. Moore to "provide written verification that your entire file - including any written or electronically recorded interviews -- has been given to County Attorney Sparks," in which case she would not pursue the matter any further. However, in the event Mr. Moore still possessed items for which he was claiming an exemption from disclosure under the Open Records Act, Ms. Gray asked that Mr. Moore "please provide a list of those items and your justification for non-disclosure as soon as possible." 2 As a courtesy, Ms. Gray requested a reply on or before May 18, 2007, because she was planning to submit a written reply to his most recent letter if the issue was not resolved.
On May 18, 2007, Mr. Moore responded to Ms. Gray, confirming that the "signed statements obtained by me as the City of Frankfort, City Solicitor have previously been provided to Rick Sparks, the Franklin County Attorney." In addition, "the transcript of the statement given by Scott Walters at the offices of Roy Gray" was also provided to Mr. Sparks. However, the "rough notes used to prepare the signed statements were not provided to Mr. Sparks, as they are illegible" 3 and were not provided to Ms. Gray as "they are exempt from release under the Open Records Act for the reasons set forth in my letter to you of April 30, 2007 and also because they are documents within the meaning of KRS 61.878(1)(i). Furthermore, these notes are not transcribed witness statements, as requested by you." 4
In a letter dated May 21, 2007, Ms. Gray advised the undersigned that she had spoken with Mr. Moore by telephone and he assured her "that there are no recordings of any of the interviews that he conducted with the exception of the interview of Scott Walters, a copy of which is already" in her possession. Accordingly, Ms. Gray believes the request "as it relates to any electronic recordings is moot." 5 However, Ms. Gray disagrees with Mr. Moore's position relative to KRS 61.878(1)(h), (i) and (l). Quoting the "conditional" language of KRS 61.878(1)(h), Ms. Gray reiterates that Mr. Sparks, who is responsible for prosecuting any case against Ms. Wilkerson, "has already turned over his entire case file." In sum, the notes are not protected by this exception "because (1) the names of all witnesses (including "informants") have been disclosed; (2) all information to be used in the criminal prosecution has already been released by County Attorney Sparks; and (3) there is no pending administrative adjudication. " According to Ms. Gray, "criminal investigations are not normally part of Solicitor Moore's duties. A separate criminal investigation was conducted by Sgt. Crawford of the Frankfort Police Department who interviewed some of the same witnesses as Mr. Moore." Records documenting those interviews, "which include electronic recordings, have also been" provided to Ms. Gray by Mr. Sparks. Also, Mr. Moore gave a different reason for his investigation - "a reason unrelated to any pending criminal case or administrative adjudication" -- in his letter to Mr. Sparks dated April 17, 1007, a copy of which Ms. Gray attached for this office to review. 6
With regard to Mr. Moore's claim that any notes are protected under the work-product doctrine, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), Ms. Gray reiterates that prior decisions of this office, in particular 05-ORD-007, require disclosure of witness statements, the underlying rationale being that "witness statements are not attorney work product since, among other things, the statements represent the views and impressions of third persons." Because these statements do not qualify as confidential communications between the City and its attorney nor do the statements qualify as "'the mental impressions, conclusions, opinions, or legal theories'" 7 of Mr. Moore concerning this matter, Ms. Gray does not believe the statements fall within the privilege. 8
Ms. Gray asserts that "the notes requested here are simply handwritten notes of witness interviews that were then turned into typewritten statements. They are not preliminary to any agency action or to formulation of agency policy." 9 To the contrary, the notes "are (or should be) nothing more than documentation of what each witness said when interviewed by Mr. Moore and/or his subordinate, Ms. Mello." To the extent the Attorney General has upheld agency denials of requests for "notes of witness statements, it has consistently been because the requested information was protected under a separate statutory provision." Since none are cited here and none of the records at issue are "preliminary," Ms. Gray argues that KRS 61.878(1)(i) does not apply so the records must be disclosed. In closing, Ms. Gray asserts that the notes "should simply recite what the witnesses told Mr. Moore or his associate during the interview and the typewritten statements should closely resemble those notes. If they do not, then there are legitimate questions about the reliability of the sworn statements and" how the interviews were conducted.
On July 5, 2007, the undersigned contacted Mr. Moore via telephone to ask that he provide this office with a copy of the notes in dispute as well as the statements of the witnesses for in camera inspection per KRS 61.880(2)(c) 10 and 40 KAR 1:030, Section 3, to facilitate resolution of this matter; a representative of his office delivered the records later that day. 11 Insofar as the City has failed to make the requisite showing of harm, the City failed to satisfy its burden of proof relative to KRS 61.878(1)(h); likewise, the notes cannot be withheld, in their entirety, on the basis of either CR 26.02, commonly referred to as the work-product rule or doctrine, or KRS 61.878(1)(i), the applicable "preliminary exception." To the extent portions of the notes do not mirror the statements of the witnesses but instead constitute the mental impressions, conclusions, opinions or legal theory of Mr. Moore or his associate or were not adopted as the basis of the statements, the City may withhold those portions per CR 26.02 and KRS 61.878(1)(i) , respectively; each of the arguments raised by the City will be analyzed in turn.
When, as in this case, a public agency relies upon KRS 61.878(1)(h) in denying access to public records, the need for specificity is "particularly compelling." 00-ORD-196, p. 3. For purposes of the instant appeal, this office assumes that Mr. Moore was acting on behalf of the City within his capacity as the City Solicitor in conducting the subject investigation or, specifically, on behalf of the Frankfort Police Department, and, therefore, is a law enforcement agency as required for application of KRS 61.878(1)(h). Because the records at issue were indisputably compiled in the process of detecting and investigation statutory violations, the City has also satisfied the second part of the statutory test; accordingly, the question becomes whether the City has made the requisite showing of harm; the record is entirely silent on this point.
Applying the analysis employed by the Kentucky Supreme Court in University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W. 373 (1992), the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. Given the legislative mandate of KRS 61.871 - that all of the exceptions codified at KRS 61.878 be "strictly construed" - and the express prohibition against use of KRS 61.878(1)(h) in particular "to delay or impede the exercise of rights granted" by the Open Records Act found in that exception, this office has consistently recognized that a public agency can properly deny access on the basis of KRS 61.878(1)(h) only if the agency satisfies each part of the aforementioned test. While the "enforcement action" is not complete nor has the case been "resolved," that is not enough, standing alone, to justify a denial. In our view, the analysis contained in 03-ORD-015, a copy of which is attached hereto and incorporated by reference, applies with equal force on the facts presented. Here, demonstrating the harm that would result from disclosure of the notes taken during the interviews would be particularly difficult since all of the statements of the witnesses have been disclosed. As in 03-ORD-015 and the authorities upon which that decision is premised, the public agency has not attempted to justify its denial with specificity but has failed to satisfy its burden of proof under KRS 61.880(2)(c) relative to KRS 61.878(1)(h). See 04-ORD-104; 04-ORD-188. In light of this determination, the question becomes whether the City properly relied upon the work-product doctrine as a basis for denial.
As a threshold matter, this office recognizes that records which are the work product of an attorney prepared or collected in anticipation of litigation or when advising a client are not discoverable under CR 26.02 and, therefore, may be withheld under the Open Records Act. 12 This doctrine, authority for which is derived from KRS 447.154, is codified at CR 26.02(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which, in turn, 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." 13 At KRS 447.154, the General Assembly recognizes "the power of the Court of Justice to make rules governing practice and procedure in the courts," declaring that no statute shall "be construed to limit in any manner, that power."
In CR 26.02(3), the Court affirmatively provides that:
(a) ? a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case, and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
The rationale underlying the work-product doctrine has been described as follows:
The work product doctrine is a court made rule, created in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947), and subsequently formalized in Federal Rules of Civil Procedure 26(b)(c), and CR 26.02(3)(a). The rule recognizes that 'it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing party and their counsel.' The work product immunity is the embodiment of a policy that a lawyer doing a lawyer's work in preparation of a case for trial should not be hampered by the knowledge that he might be called upon at any time to hand over the result of his work to an opponent.
1 William S. Haynes, Kentucky Jurisprudence; Kentucky Civil Procedure § 26.02. As evidenced by the foregoing, mandatory disclosure provisions of the Open Records Act cannot be construed to limit the power of the Court to protect "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party" concerning anticipated litigation. 98-ORD-156; 00-ORD-99.
Although the City (like the agencies involved in 05-ORD-007 and 00-ORD-10, cited in the former decision), also initially failed to provide sufficiently detailed information to satisfy its burden of proof, Mr. Moore ultimately asserted that "statements have been made indicating that there is the potential for civil litigation arising out of Ms. Wilkerson's arrest. " In addition, the letter directed to Mr. Sparks by Mr. Moore on April 17, 2007, confirms that statements of the witnesses "were prepared in anticipation of litigation. " To the extent this conditional privilege applies, the instant appeal is distinguishable from 05-ORD-007 in this respect; however, the notes cannot be withheld in their entirety since those notes, by the City's admission, "were used to prepare the signed statements" of the witnesses. Because those statements have not only been disclosed but largely mirror the "rough notes" withheld, only those portions which can accurately be described as "the mental impressions, conclusions, opinions, or legal theory" of Mr. Moore or his associate may be redacted per KRS 61.878(4); a broader holding is not required to serve the purpose for which this rule was promulgated. As consistently recognized by this office, a public agency "cannot withhold every document that relates to a particular matter under KRS 61.878(1)[(l)] and the attorney-client/ work-product doctrine simply because it is represented by an attorney in the matter." 01-ORD-246, p. 17, citing OAG 91-109. Similarly, "there is no 'litigation' or 'residual' exception that can be invoked by an agency solely because it is engaged in litigation, or in this case, threatened litigation." 03-ORD-042, p. 10, citing 03-ORD-015. Given this determination regarding application of CR 26.02(3), the remaining question is whether the City is permitted to withhold the notes on the basis of KRS 61.878(1)(i).
Our analysis is guided by the legislative statement of policy codified at KRS 61.871 and the 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' ." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 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" ).
A "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002); 97-ORD-183, p. 4; 04-ORD-125. A "note," on the other hand, is a "brief record, esp. one written down to aid the memory." Id. at 951; 97-ORD-183, p. 4; 04-ORD-125. In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to private individuals," is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." Id., p. 2. Clearly, this exception does not apply to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6; 04-ORD-125. Here, the "rough" notes (some of which are typewritten) in dispute cannot properly be characterized as correspondence nor does the City make that contention; however, the notes were unquestionably "created as an aid to memory or as the basis for a fuller statement," as, for example, are conventional notations taken at a meeting. 97-ORD-183, p. 4; 93-ORD-67, p. 9 (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"); 04-ORD-125. Although the City does not specifically argue that notes like those withheld also qualify as drafts in the relevant sense, the notes are, by definition, "a tentative version, sketch, or outline of a formal and final written product such as the drafts dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38" in this context with notarized statements of witnesses being the "formal and final written product." 97-ORD-183, p. 4. However, the analysis does not end there.
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. 07-ORD-090, p. 6; 05-ORD-048. Although this office is not at liberty to reveal the content of the notes in dispute, the final statements of the witnesses largely mirror the notes. Only to the limited extent discrepancies exist between the notes and the statements may the preliminary notes properly be withheld on the basis of KRS 61.878(1)(i). Like the "notes of the individual committee members which formed the basis of the Cabinet's final action" at issue in 04-ORD-087, a copy of which is attached hereto and incorporated by reference, these notes are subject to inspection "even though the content of those notes has [largely] been revealed indirectly with the disclosure of the [witness statements]." Id., p. 25. In our view, the reasoning found at pp. 19-25 of that decision is controlling on the facts presented. Disclosure of the statements "does not dispense with the obligation to disclose the actual notes. It is because those notes still in dispute were incorporated into the [statements] that disclosure is required." Id., p. 21. However, the City may properly withhold any existing notes which did not form the basis of the final statements.
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 To the extent the City failed to issue a written response within three business days (the record on appeal does not reflect whether the request was actually received on April 23, 2007), the City violated KRS 61.880(1); the City does not challenge this assertion or explain the apparent delay which, however minimal, violated the express and mandatory language of this provision.
2 A public agency such as the City must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. Neither the initial response nor the supplemental response of the City contains the specificity envisioned by KRS 61.880(1).
3 Whether the notes are legible is not relevant in determining their status.
4 Because Ms. Gray initially requested "any and all records" concerning the arrest of Ms. Wilkerson and subsequently asked Mr. Moore to confirm that his "entire file" including any written or electronically recorded statements, this office finds the secondary argument raised by the City unpersuasive. On both occasions, Ms. Gray employed language which is broad enough to encompass the notes at issue under any reasonable interpretation.
5 In accordance with 40 KAR 1:030, Section 6: "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. When applying this mandate, the Attorney General has consistently held 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. To clarify, the fact Ms. Gray has already been provided with copies of the file and/or the specified records would not relieve the City of its duty to provide Ms. Gray with copies of any existing nonexempt records also in its possession which are responsive. 04-ORD-059, p. 6, citing 00-ORD-16, p. 4. On several occasions, the Attorney General has expressly rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10.
6 In the referenced letter, Mr. Moore advises Mr. Sparks that statements he obtained from witnesses "concerning the incident involving Natalie Wilkerson" are enclosed and indicates that same "were prepared in anticipation of litigation. " Therefore, Mr. Moore has "not released these statements to third parties." In closing, Mr. Moore clarified that his understanding was that Mr. Sparks would be "releasing these statements pursuant to the discovery requests submitted on behalf of Ms. Wilkerson."
7 In asserting that statements of witnesses are not "confidential communications, " Ms. Gray implicitly argues that the attorney-client privilege, codified at Kentucky Rules of Evidence (KRE) 503, does not apply on the facts presented. While Ms. Gray may be correct, Mr. Moore does not invoke the attorney-client privilege; accordingly, this office does not make a determination regarding that issue but refers the parties to pp. 12-18 of 04-ORD-187 for the relevant analysis.
8 Based upon Mr. Moore's letter specifically identifying the "rough notes" in response to Ms. Gray's inquiry, our analysis proceeds on the assumption that only the "rough notes" taken by Mr. Moore and his associate during the interviews of the witnesses are still in dispute.
9 Discussion of whether policies are formulated or recommended is only relevant in determining whether recommendations or memoranda have been properly withheld under KRS 61.878(1)(j); Mr. Moore relies upon (1)(i), albeit belatedly, in addition to (1)(h) and (l).
10 In relevant part, KRS 61.880(2)(c) provides that 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. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
11 Although Mr. Moore also included a copy of an e-mail forwarded to Chief Mark Wilhoite, the content of which this office cannot disclose, the e-mail qualifies for protection under the work-product doctrine.
12 In Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 863 (2001), the Court of Appeals held that KRS 61.878(1) "does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order." To clarify, the "gist of this wording is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records, to those records that could be authorized through a court order on a request for discovery" under the Rules of Civil Procedure.
13 Both the courts and this office have recognized the attorney-client privilege and work-product doctrine in the context of an open records dispute if all of the elements of the privileges are met. See Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771 (2001).