Request By:
Gregory Valentine, # 183775
Emily Dennis
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Justice and Public Safety Cabinet, Office of Legal Services, properly relied on KRS 447.154, CR 26.02, KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in partially denying inmate Gregory Valentine's October 2, 2007, request submitted to Emily Dennis, Staff Attorney for the Cabinet, for " . . . all information in your possession concerning" an open records request that he had previously submitted to the Educational Professional Standards Board.
By letter dated October 15, 2007, Ms. Dennis acknowledged receipt of the request on October 8, 2007, advising that the Open Records Act did not require agencies to create records or to provide information in response to a request. She further advised:
I possess a file copy of the 2-page October 2, 2007 open records appeal response, together with 10 pages of attachments, a copy of which was sent to you. I also possess a copy of a September 28, 2007 letter you sent to KY DOC Commissioner John D. Rees (13 pp. including attachments).
Any other record of my communications with CUA I Donna Reed and/or Commissioner Rees relative [to] the above is exempt from inspection or copying pursuant to KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503, because it is a confidential record protected by the attorney-client privilege and work product rule.
To obtain the copies of the above-referenced records (which you should already have), please send an institutional check payable to the Kentucky State Treasurer in the amount of $ 2.91 to cover postage ($ 0.41) and copying charges ($ 2.50).
Shortly thereafter, on October 31, 2007, Mr. Valentine initiated the instant appeal arguing, in part, that the Cabinet improperly relied on the attorney-client privilege in partially denying his request and that, pursuant to KRS 61.884 he was entitled to any record relating to him or in which he is mentioned by name.
After receipt of notification of the appeal, Ms. Dennis provided this office with a response to the issues raised in the appeal. In her response, she explained that the "matter" to which Mr. Valentine referred to in his request for "all information in your possession concerning this matter," was a protective order filed against him as the result of an open records request that he had previously submitted to the Educational Professional Standards Board. She further advised in relevant part:
With respect to other information or documentation received regarding the protective order, I properly informed Mr. Valentine that ". . . any other record of my communications with CUA I Donna Reed and/or Commissioner Rees relative to the above is exempt from inspection or copying pursuant to KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503, because it is a confidential record protected by the attorney-client privilege and work product rule.
In addition, Ms. Dennis stated that Mr. Valentine's assertion that he was entitled to any record relating to him or which he was mentioned by name, under KRS 61.884, was incomplete, arguing that the entitlement to such records under that section, was subject to the provisions of KRS 61.878 . (Emphasis in original.)
Pursuant to KRS 61.880(2)(c), and in order to facilitate our review of the issue on appeal, we asked that the Cabinet provide us with copies of the disputed records for in camera inspection.
For the reasons that follow, we conclude that the Cabinet properly withheld the records at issue as they are protected from disclosure by the attorney-client privilege, under authority of KRS 61.878(1)(l) and KRE 503.
Both the courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege and work-product doctrine privileges in the context of an open records dispute where all of the elements of the privileges are present. See Hahn v. University of Louisville, Ky.App., 80 S.W.3d 771 (2001); 02-ORD-161; 01-ORD-246; 97-ORD-127.
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 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.
97-ORD-127, 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. 97-ORD-127., p. 2.
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).
KRE 503(b)(3) recognizes that the privilege extends to confidential communications outside the attorney-client relationship:
(3) By the client or a representative of the client or the client's lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein;
Robert G. Lawson, in The Kentucky Evidence Law Handbook § 5.10, (Michie, 3rd ed. 1993), at p. 238, discusses the application of KRE 503(b) and explains when there can be communication outside the attorney-client relationship without destroying the confidentiality of the communications through the application of the "joint defense" privilege or "common interest" rule to the attorney-client privilege:
The joint defense part of the lawyer-client privilege originated in criminal cases where attorneys "shared information in the course of devising a joint strategy for their clients' defense." It has been broadened to cover a wide range of situations in which multiple clients share common interests. Though most often described as the joint defense privilege, courts have tended recently to label it as the "common interest rule," at least some courts have ruled that that there need not to be actual litigation in progress for the rule to be applicable. KRE 503(b) adopts the "joint defense" or "common interest" rule but limits its application to communications occurring with respect to a "pending action. " 1
(other footnotes cited omitted.)
Our in camera review reveal that the records at issue are e-mail correspondence from Diane T. Bevington, attorney for the Personnel Cabinet, to John D. Rees, Commissioner, Department of Corrections, with copies to Jeff Middendorf and Emily Dennis, attorneys for Justice and Public Safety Cabinet and Thomas B. Stephens, Executive Director, Office of Legal Services, Personnel Cabinet and a reply email from Commissioner Rees to Ms. Bevington, copies to Mr. Middendorf and Ms. Dennis. Although we cannot disclose the contents of this correspondence, it can be summarized generally as discussions of open records requests made by Mr. Valentine and include summaries of previous legal discussions between each agency's attorneys, interpretation of statutes, and legal strategies relevant to a pending open records request made by an inmate to the Personnel Cabinet.
In the instant appeal, there are two clients and two sets of attorneys involved; the Justice and Public Safety Cabinet, Department of Corrections (the client) and its attorneys and the Personnel Cabinet (the client) and its attorneys. Clearly, the communications were prepared as part of a professional relationship between each agency client and its attorneys, within the course and scope of that employment, in order to provide advice to each client on the legal ramifications of the issues presented and the "common interest" in protecting the safety of those covered by the protective order and the public and in devising a joint legal strategy to be pursued in open records requests made by inmates to the Personnel Cabinet, thus satisfying the first and second parts of the three part test. It is equally clear that the Cabinet has demonstrated that the confidentiality of the correspondence has been maintained from its creation to the present date. The notation on the subject line of the correspondence states that it is confidential and designates same as attorney work-product. While this office has held that such a notation is not controlling in an open records dispute, we have also recognized that the notation will be respected when it is consistent with one or more of the exceptions to disclosure. OAG 90-13; 97-ORD-127. The Cabinet has continually maintained and asserted the attorney-client privilege with respect to these documents. It continues to do so up to the present. In our view, the Cabinet has affirmatively satisfied the third part of the test. Accordingly, we find that the Cabinet properly withheld the records at issue under authority of KRS 61.878(1)(l) and KRE 503.
We next address Mr. Valentine's assertion that, under authority of KRS 61.884, he is entitled to access to the records at issue because they are directly related to him. KRS 61.884 provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878 .
(Emphasis added.) As noted above, the records at issue were properly withheld from disclosure under authority of KRS 61.878(1)(l) and KRE 503. Accordingly, we find that the Cabinet properly withheld the records in question as they are made confidential and disclosure prohibited under KRS 61.878(1)(l) and KRE 503, which override the provisions of KRS 61.884. 96-ORD-40.
Finally, with regard to that portion of Mr. Valentine's request seeking any communications with CUA I Donna Reed and/or Commissioner Rees, Ms. Dennis advised that she had not located any correspondence "other than those records relative to Mr. Valentine's appeal # 200700507, which she had previously informed him that he may have upon prepayment for the records." The Cabinet discharged its duty under the Open Records Act by affirmatively advising Mr. Valentine that no other records responsive to his request existed. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard. Accord , 07-ORD-218.
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 The joint defense concept contemplates two clients and two lawyers with a common legal objective. It is clearly distinct from the "joint client" exception to the lawyer client privilege which is defined by KRE 503 and described in a subsequent part of this section.