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 Murray-Calloway County Public Hospital Corporation violated the Kentucky Open Records Act in partially denying the request of Murray Women's Clinic, PLLC for "[a]ll documentation on how MCCH determined there was a need for more OB/GYN physicians in our community[,]" as referenced in Dr. Price's "recruitment agreement," which the Hospital has now apparently provided thereby rendering any related issues moot per 40 KAR 1:030, Section 6. In addition, the Clinic requested "[a]ll supporting documentation on how the hospital determined the monthly base of $ 21, 083.33 for Dr. Price." 1 Although the Hospital violated the mandatory terms of KRS 61.880(1) in failing to provide a brief explanation of how the cited exceptions, KRS 61.878(1)(i) and (j), apply to the records withheld, the Hospital has mitigated this error somewhat on appeal; however, the Hospital is only entitled to withhold those records which fall within the parameters of those exceptions and which the Hospital did not adopt as a basis of the contract between Dr. Price and the Hospital (as opposed to constituting the final action themselves or being "incorporated" into same). When belatedly invoking KRS 61.878(1)(l), the Hospital failed to identify the specific records being withheld and to articulate the basis for denial in terms of the attorney-client privilege codified at KRE 503(b), incorporated into the Open Records Act by operation of (1)(l), as required to satisfy its burden of proof under KRS 61.880(2)(c). In so holding, this office does not imply that reliance on the privilege is entirely misplaced here but does find, in accordance with governing authorities, that sufficiently detailed information to satisfy the Hospital's burden of proof is lacking.
By letter directed to Hazel Morton, Administrative Assistant, on April 4, 2007, Gary P. Houck, Practice Administrator, requested the aforementioned categories of records in addition to "exhibit A referred to in the second paragraph of the recruiting agreement addendum" which had been inadvertently omitted from the Hospital's response to his previous request. 2 In a timely written response, William C. (Chip) Adams, III responded on behalf of his client, the Hospital, enclosing a "copy of the estimated incremental practice expenses for Dr. Matt Price, Exhibit A, to the Physician Recruitment Addendum provided" in his previous response. "Relative to the first bullet point," relating to "community need," Mr. Adams denied access because "any such information is exempt from disclosure under KRS 61.878(1)(i and j);" Mr. Adams' response "to the second bullet point" was identical.
On behalf of the Clinic, Attorney Jacqueline C. Kingsolver initiated this appeal by letter dated May 8, 2007, noting that counsel for the Hospital "denied access to documentation regarding the need for the recruited physician in the community and to documentation evidencing how the Hospital determined the monthly rate to be paid to the recruited physician." According to Ms. Kingsolver, that denial violated KRS 61.880(1) "because it did not include 'a brief explanation of how the exception applies to the record withheld. '" As a result, Ms. Kingsolver and her client have "no inkling as to which of the exceptions listed in subsection (i) of the statute the Hospital believes applies to the requested documents for purposes of its denial nor can [they] determine what is 'preliminary' about the requested documents" within the meaning of (j).
Upon receiving notification of Ms. Kingsolver's appeal from this office, Mr. Adams supplemented his response, recognizing at "the outset and upon review" of his initial response that "such response may have been procedurally deficient, taking into consideration KRS 61.880(1) ." Relative to records documenting community need, Mr. Adams reiterates that "any such information is exempt from disclosure under KRS 61.878(1)(i, j and l[cited for the first time])," 3 insofar as "the information sought is preliminary documentation and correspondence with private individuals, neither of which are intended to give notice of final agency action. " Any such documents "constitute preliminary memoranda in which opinions are expressed. Other documentation is protected by the attorney-client privilege." With regard to supporting documentation concerning Dr. Price's base salary, Mr. Adams' argument is nearly identical. 4
In further support of the denial, Mr. Adams contends that records which are responsive to the Clinic's request fall into the following categories (which do not correspond with any previous method of reference):
1. Attorney Client communications, which are exempt from disclosure under KRS 61.878(1)(l). These particular documents involve communications where the corporation received legal advice leading up to the execution of the contract with Dr. Price.
2. Correspondence with private individuals under KRS 61.878(1)(i), which do not give notice of final agency action. OAG 90-66. Documents in this category include emails by and between corporate employees and third parties created during the course of negotiations and which do not constitute final agency action.
3. Preliminary drafts and notes under KRS 61.878(1)(i). OAG 90-66 and OAG 83-335. These documents consist of working papers established in the course of negotiations and which were not incorporated into the final, executed contract.
4. Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended under KRS 61.878(1)(i). Baker v. Jones, Ky. App., 199 S.W.3d 749 (2006), OAG 91-23, OAG 85-128, OAG 89-24 and 83-335. These documents include internal communications by and between corporate representatives, summaries, opinions as to how negotiating strategies should be conducted and reports as to the status of negotiations between the contract parties and which do not, by any means constitute final agency action.
Quoting Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994), Mr. Adams notes that his client "believes that it has met its obligations" under the Open Records Act. Notwithstanding the fact "the tenor of the request" by the Clinic "clearly indicates that it was made in its capacity as a competitor" rather than a "concerned citizen," the Hospital "has elected to waive" KRS 61.878(1)(i) and (j) relative to certain preliminary drafts, notes, recommendations and memoranda regarding "community need;" this waiver "is applicable only as to this particular request." 5 In closing, Mr. Adams clarifies that his client "continues to assert those exceptions relative to attorney-client privilege and correspondence with private individuals, as such documents" are "clearly within" those exceptions. 6
By letter directed to Mr. Adams on June 7, 2007, the undersigned counsel asked Mr. Adams to provide this office with a copy of those records being withheld on the bases of the attorney-client privilege and KRS 61.878(1)(i) (correspondence with private individuals) for in camera review in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. 7 In a timely written response, Mr. Adams reiterates that his client "has complied with its obligations under the Act. . . . The final integrated contract has been provided." Documents "specifically incorporated into that final agreement, as well as other documents, have been provided to her in disclosures which exceed the scope of her broad request." At present, the Clinic still requests those records "which may have been utilized by the hospital in the time period preceding the execution of the agreement, but which were not included or incorporated into the final agreement." 8 Citing KRS 61.878(1)(i) and (j) along with prior decisions of this office, some of which are not controlling on these facts, Mr. Adams argues that materials requested, by Ms. Kingsolver's own admission, "are described as preliminary in nature, and include correspondence with private individuals." As noted by Mr. Adams, the Attorney General has "determined that preliminary records continue to be exempt even after final action has been taken, OAG 80-289, and that letters of intent regarding economic development packages, in an industrial context, are exempt. OAG 91-21." In addition, "proposals or negotiations, which occur prior to final agency action, " do not have to be disclosed. In his view, the "remainder of the documents which conceivably fall within the scope of Ms. Kingsolver's request are covered by the attorney client privilege, and, are thus exempt. KRS 61.878(1)(l)." While that may be true, the record does not contain sufficient evidence for this office to affirm on that basis.
As a public agency, the Hospital is obligated to comply with procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access generally speaking. 9 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted under the Open Records Act. In relevant part, KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " (Emphasis added). When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208.
Noticeably absent from the initial response of the Hospital is the requisite brief explanation of how the cited exceptions apply; likewise, the Hospital failed to cite the "enactment of the General Assembly" incorporated into the Act by operation of KRS 61.878(1)(l) both initially and on appeal. A public agency such as the Hospital must not only cite the applicable exception(s) but also 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-08; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
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 (emphasis added). Bearing in mind that public agencies such as the Hospital have the burden of proof in denying requests pursuant to KRS 61.880(2)(c) and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that the initial response of the Hospital is deficient from a procedural standpoint; likewise, the "revised" merely parrots the language of the statutory exceptions. 10 Edmondson v. Alig, supra, at 858. When responding to future requests, the Hospital should be guided by the longstanding principle that procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 02-ORD-187.
Because the analysis employed by the Attorney General in determining whether a public agency has properly relied upon KRS 61.878(1)(i) and (j) is well documented in a line of prior decisions, a recent example of which is 05-ORD-221, this office hereby adopts the reasoning of that decision (and the authorities upon which it was premised) in the interest of brevity; a copy of 05-ORD-221 is attached hereto and incorporated by reference. Compare 05-ORD-210 and 05-ORD-280 (attached to which is a copy of 05-ORD-144 for purposes of contrast). Although the Hospital is correct in asserting that the Open Records Act "does not establish a public policy of full and complete disclosure of all records requested by an individual or entity," as evidenced by Beckham, the analysis does not end there. Guided by the principles outlined in 05-ORD-221 as well as an evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit exempt status only upon being adopted by the agency as part of its final action. Id., p. 4. Here, some of the records in dispute cannot properly be characterized as "preliminary" in the relevant sense. Even assuming this criterion is met, any such records forfeited preliminary status if adopted as a basis for the final contract; only those which are preliminary and which the Hospital did not ultimately adopt (in part or in whole) 11 can be properly withheld. Said another way, the determinative question is not whether the records were "incorporated in the final, executed contract" or "constitute final action" nor whether the records were utilized by the Hospital prior to execution of the agreement but "not included or incorporated" into same but whether the records were adopted as part of the final contract.
In each of these decisions, the Attorney General examined the e-mails in dispute "through the prism of the Kentucky Open Records Act and not in light of [prior] or subsequent disclosures through other legal mechanisms." 05-ORD-144, p. 5. Based upon the limited evidence of record and the time constraints imposed by KRS 61.880(2), this office was "unable to trace each [responsive document or e-mail] to its conclusion, or determine what role the emails [or documents] played" in the final action of the agency. 12 Id., p. 7. Likewise, the Attorney General is unable to reach a conclusive determination regarding what role, if any, the records in dispute played in the final action (contract) of the Hospital; the record is not even clear as to which records are being withheld on which basis.
Although KRS 61.880(2)(c) prohibits the Attorney General from disclosing the content of those records provided for in camera review (none of which are currently in our possession), the file was divided into three categories, namely, "Murray Women's Clinic" (presumably those relating to determination of Dr. Price's monthly base salary, as opposed to community need, that are being withheld under KRS 61.878(1)(i) or (j) but do not fall into either of the remaining two categories), "Attorney/Client Privilege," and "Correspondence with Private Individuals." In the first category, for example, a document entitled "Recruitment of Dr. Matt Price," described as a summary of activities to date, cannot properly be characterized as a note, a draft or correspondence with a private individual within the meaning of KRS 61.878(1)(i) nor as a preliminary recommendation or memorandum under (1)(j); consequently, the question of whether final action was taken or that document was adopted as a basis for same becomes irrelevant. Similarly, an e-mail from John Johnson (presumably counsel for the Hospital then) to a named individual that merely identifies three documents which require a signature from Dr. Price does not qualify for protection under (1)(i) or (j) nor do any of the attached exhibits not already disclosed (if those exhibits later formed the basis for part of the contract), a letter from a lending organization to Dr. Price regarding the status of his loans, or the brief letter from Dr. Price to a representative of the Hospital. While those records which are specifically identified as correspondence with private individuals, most of which are e-mails to representatives of the Hospital (whose identities are not revealed in the record) from various "third parties" or vice versa, 13 might qualify for exclusion, the record simply does not contain enough information for this office to determine whether those e-mails became "open upon submission" insofar as they were submitted "with the expectation of agency action, " like the records at issue in 00-ORD-98, 04-ORD-192 and 05-ORD-072; however, the Hospital has not established with sufficient detail "that the candor of the correspondents was dependent on assurances of confidentiality." 05-ORD-144, pp. 10-11; 05-ORD-221. Because the Hospital is assigned the burden of proof by KRS 61.880(2)(c), this office must find in favor of the Clinic.
With regard to application of the attorney-client privilege, codified at KRE 503(b) and incorporated into the Act by operation of KRS 61.878(1)(l), the analysis contained in 06-ORD-125, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. See also 04-ORD-187. In responding to Mr. Houck's request, the Hospital referenced the privilege indirectly without explanation. On appeal, the Hospital asserts that any such documents "involve communications where the corporation received legal advice leading up to the execution of the contract with Dr. Price;" the Hospital does not identify the records to which the privilege purportedly applies or attempt to establish how the records satisfy the requirements of the privilege. Id., p. 6. In short, the Hospital has not offered any proof that all of the records in this category were generated during the course of the attorney-client relationship and represent a communication by or to the client relating to the subject matter on which professional advice was being sought nor is there sufficient evidence to establish that all of the records were maintained in a manner designed to ensure confidentiality, 14 as required to successfully invoke the privilege. Id., pp. 6-7. Simply put, the Hospital "paints with broad brush strokes and entirely omits the details" in violation of the Act. 98-ORD-124, p. 8.
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 Although the Clinic also initially sought a "copy of all board minutes and committee minutes when the proposed and subsequently approved agreements with Dr. Price and/or Primary Care were discussed" and "copies of any documentation the board and/or committees used to arrive at the approval," the Hospital responded by asserting that "no such documents exist." Because the Clinic does not challenge this assertion nor does the record contain any evidence to the contrary, further discussion is unwarranted; however, the parties may wish to review 07-ORD-023 for the relevant analysis.
2 In a letter dated March 28, 2007, Mr. Houck asked Ms. Morton "for copies of all the exhibits referred to" in the agreement between Dr. Price and the Hospital; Mr. Adams responded on March 29, 2007, acknowledging that due to his "oversight, those exhibits were inadvertently omitted from my prior correspondence to Thomas Green, M.D. earlier this year."
3 To clarify, a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, the Attorney General considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the original denial of the agency. Id.
4 Prior to receipt of Ms. Kingsolver's letter dated May 8, 2007, and received by Mr. Adams on May 10, 2007, Mr. Adams and representatives of the Hospital undertook "an additional, diligent, good faith search" for such records. Since the Hospital's original response, "additional records relative to the subject request have been located." Following a "critical review" of same, Mr. Adams maintains that his "revised response" remains "true and correct," with two exceptions. First, relative to "the second bullet point," the Hospital provided a document entitled "Obstetrics/Gynecology," which contains four tables labeled as 88A-88D. "Other documents which could be considered responsive" are described by Mr. Adams as "subject to the attorney-client privilege and communications with private individuals." Second, Exhibit 2.2 of the executed contract "was inadvertently omitted from prior disclosure. " However, the Hospital has now provided the Clinic "with a complete copy of the contract requested." That being the case, any issues relative to said contract are now moot per 40 KAR 1:030, Section 6, pursuant to which: "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. While the same can be said relative to documents relating to community need, the record is unclear as to which existing records of those being withheld, if any, remain at issue.
5 In addition, the Hospital disclosed further information regarding community need, "which was created outside of the time frame of the documents requested" by the Clinic.
6 By e-mail directed to Ms. Kingsolver on May 29, 2007, and copied to Mr. Adams, the undersigned counsel asked Ms. Kingsolver to confirm receipt of certain records disclosed in response to her appeal and to advise "which records, if any, remain in dispute" in her view. On May 31, 2007, Ms. Kingsolver acknowledged receipt of those documents "referenced as included in Mr. Adams' letter." However, Ms. Kingsolver notes that "only one page of these documents" relate to her client's request for documents "evidencing the Hospital's determination" of the agreed upon amount of compensation, which "appears to be a page taken from an unidentified source document, date unknown [subsequently described by Mr. Adams as a page from "the Medical Group Management Association (MGMA), Physician Compensation and Productivity Survey, 2005 Report, Page 218"]." Acknowledging the applicability of the exceptions relied upon by the Hospital, Ms. Kingsolver asked this office "to seek affirmation from the Hospital" that all responsive documents "which were used and considered final (and which are not otherwise covered by an exception) be released. Inasmuch as final action was taken in reliance on these documents (the Hospital's execution of agreements)," the Clinic requests that "documents relied on in taking that final action be deemed" no longer preliminary and released.
7 In addition, the undersigned counsel indicated that based upon the record, this office is operating under the assumption that only those records concerning how the Hospital "determined the monthly base salary of the recruited physician, Dr. Price" are still in dispute, referencing the e-mail attached thereto.
Upon receipt of this letter, Mr .Adams contacted the undersigned counsel via telephone to indicate his willingness to comply; however, Mr. Adams requested to bring the records in person at his client's insistence. On June 28, 2007 (the date agreed upon by Mr. Adams and the undersigned), Mr. Adams brought a file containing the records in dispute for the undersigned to review in camera before leaving the premises to conduct other business and then returned to retrieve the records later that day before leaving town. Because the Clinic declined to send a copy of the records in accordance with protocol, despite our assurance that all records disclosed for this limited purpose are destroyed upon issuance of the decision and the content is not revealed to any third parties nor has disclosure per KRS 61.880(2)(c) been deemed a waiver of the privilege, counsel had a limited amount of time in which to review same and must rely instead on the notes taken some three weeks ago; the analysis is necessarily handicapped to some degree as a result since notes are not a substitute for having a copy of the actual records to scrutinize during the writing process nor does KRS 61.880(2)(c) envision that situation.
8 In 05-ORD-048, this office clarified that chronological sequence is not determinative standing alone. Id., p. 11. Likewise, the Attorney General observed that the terms "incorporate" and "adopt" are not "synonymous or interchangeable" in 01-ORD-83, rejecting the agency's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action of the ultimate decision maker, modifying prior decisions to the extent necessary to be consistent with this view. Id., pp. 13-14; 04-ORD-187; 04-ORD-162.
9 See 02-ORD-132, p. 7, citing Zink v. Commonwealth of Kentucky, Department of Workers' Claims, Ky. App., 902 S.W.2d 825, 828 (1994).
10 In contrast, the Hospital offers at least some, if not sufficiently detailed, "further support" in supplementing its response on appeal.
11 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
12 Acknowledging that a number of the e-mails were "no doubt adopted as the basis of final action . . . and therefore forfeited their preliminary characterization," this office was "not equipped to make such a determination" given the limited record on appeal. Id. While our decision admittedly shifted "responsibility back to the [agency], thereby 'letting the fox decide the best way to guard the henhouse,'" this office had no viable alternative nor do we here although the record is also devoid of evidence suggesting bad faith.
13 While the Hospital also included a document entitled "Executive Summary" (2005 and 2006 OB/GYN Analysis) and a page of handwritten notations with no clear significance or context in this category, which may be withheld on another statutory basis, such records are not correspondence with a private individual within the meaning of KRS 61.878(1)(i); again, this office does not dispute that models and reports containing data or calculations may be protected if not adopted as a basis for the final action but does find that sufficient evidence is lacking to substantiate this assertion.
14 Some of the records are stamped as "privileged" while others are not; however, e-mails in which a Hospital representative asks Mr. Johnson for "assistance filling in the blanks" of the "attached terms specific to the recruitment of a OB/GYN" and those in which Mr. Johnson made certain redactions or notations in response to same as well as the e-mail (s) in which Mr. Johnson responds to a "request for legal opinion" regarding community need and the "MEMORANDUM" dated November 2, 2005, in which Mr. Johnson advises the Hospital regarding the recruitment of Dr. Price with research attached, may be withheld assuming the Hospital complies with procedural requirements of the Act.