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 Office of the Warren County Judge/Executive violated the Open Records Act in the disposition of Clarence Hurst's request for a copy of all materials which pertained to his grievance and appeal that he submitted to the County Judge/Executive. For the reasons that follow, we find that the Office of the County Judge/Executive did not meet its statutory burden of proof in sustaining the blanket denial of Mr. Hurst's request for investigative documents on the basis of the attorney-client privilege and, thus, the denial was a violation of the Act.
Specifically, by letter dated February 25, 2008, Mr. Hurst requested "all investigative materials such as video tapes, audiotapes, and interview notes that are either in the possession of the Judge Executive's office or the County Attorney" and used by the Judge/Executive when he considered the totality of the circumstances in supporting the decision of the Warren County Jailer.
By letter dated February 28, 2008, Marie Smith, Deputy, Warren County Judge/Executive, responded to Mr. Hurst's request, advising:
Please be advised that notations and markings have been placed on the materials that you submitted to our office pertaining to your initial grievance and appeal. As this information (including the notations and marking, which would be virtually impossible to redact) has been used by my office, in connection with the Warren County Attorney, in the investigation of your grievance, it is now attorney-client privileged information. Your open records request for this information is hereby denied.
Further, the information compiled by this office, and the Warren County Attorney's Office, regarding the investigation (video tapes, audiotapes and interview notes) concerning your grievance is considered attorney-client privileged information as well and your request for this information is denied.
Finally, Judge/Executive Michael Buchanon's decision to deny the appeal of your grievance was based upon the information submitted and the information above, thus the information requested is attorney client privileged information and cannot be released.
On March 3, 2008, Mr. Hurst initiated the instant appeal. In his letter of appeal, he explained:
December 10th, 2007, I supplied Warren County Judge Executive, Michael Buchanon, with a grievance and appeal of disciplinary action. Along with this, I sent documents I felt would convey information which would bring a positive conclusion to my entreaty.
By supplying these materials, I didn't authorize these items to become the permanent property of the county nor did I authorize the county to deface or make marks of any kind on this material.
I made this material available only for review and help the Judge Executive, Michael Buchanon, make an informed decision. Michael Buchanon was/is also aware that I wish(ed) to present the material to the County Magistrates in an appeal pending Michael Buchanon's decision.
After receipt of notification of the appeal, Ms. Smith provided this office with a response to the issues raised in the appeal. Reiterating that the agency stood by its statements in its initial response to the request, she further advised:
Mr. Hurst has requested documentation that he personally provided to this agency. Mr. Hurst made copies for this agency from his originals. As such, it should be presumed that Mr. Hurst maintained the originals and has same in his possession. Once received by this agency, notations were made on the documentations that are covered by attorney-client privilege, and as such that information is not subject to Mr. Hurst's open records request.
We first address whether the Office of the Warren County Judge/Executive met its statutory burden of proof in denying Mr. Hurst's request on the basis that the requested records were exempt from disclosure under the attorney-client privilege.
The courts and this office have affirmed public agency reliance on the attorney-client privilege as a basis for denying access to public records, under authority of KRE 503, operating in tandem with KRS 61.878(1)(l), which authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001); 05-ORD-177.
KRE 503(b) codifies the general rule of privilege:
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[.]
With respect to the privilege, the Attorney General has observed:
The privilege . . . consists of three elements: The relationship of attorney and client, communication by 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. R. Lawson, Kentucky Evidence Law Handbook, § 5.10 at 232 (1993), citing United States Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). Its purpose is to insure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objectives." Kentucky Evidence Law Handbook, § 5.10 at 232.
94-ORD-88, p. 4. Continuing, we noted that "an agency can be a 'client' and agency lawyers can function as 'attorneys' within the relationship contemplated by the privilege." Id.
In denying Mr. Hurst's request, the agency explained that the materials he had submitted to the County Judge/Executive now contained notations and markings that had been placed on the materials, in working with the County Attorney in the investigation of the grievance, and thus, was attorney-client privileged information. The agency further argued that other records and information compiled by it and the Office of the County Attorney, regarding the investigation of Mr. Hurst's grievance, was also considered attorney-client privileged information and denied this portion of his request on that basis.
In 00-ORD-10, the Attorney General held that the City of Louisville improperly adopted a policy of blanket exclusion relative to the records identified in a request. In that decision, this office explained:
In construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals has observed:
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Amplifying on this view, the Attorney General has stated:
97-ORD-41, p. 6. In the cited decision, this office suggested, by way of example, 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." 97-ORD-41, footnote 2, p. 7.
In 95-ORD-61, the Attorney General further opined:
00-ORD-10, p. 12.
In the instant appeal, we find that the Office of the County Judge/Executive did not meet its statutory burden of proof in sustaining its denial of Mr. Hurst's request on the basis of the attorney-client privilege. The agency did not identify the notations, markings, documents, or groups of documents withheld, or adequately explain how the privilege applies to those and other records withheld. In responding to Mr. Hurst's request, the Office of the County Judge/Executive has done little more than invoke the privilege. The agency has offered no proof that all of the responsive records and the notations and markings on the materials submitted by Mr. Hurst were generated in the course of the attorney-client relationship, represent a communication by or to the client relating to the subject matter upon which professional advice is sought, or were handled in a confidential manner, thus qualifying for exclusion as records protected by the attorney-client privilege. 06-ORD-125.
Although the agency's reliance on the privilege may not have been entirely misplaced, we conclude that it failed to provide sufficiently detailed information in response to Mr. Hurst's request to meet its statutory burden that the notations, markings, and records are exempt from disclosure under the attorney-client privilege. An agency "cannot withhold every document which relates to [the] 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." OAG 91-107, p. 4, citing OAG 88-25. To sustain its burden, the agency must identify the records or groups of records withheld and articulate the reasons for withholding those records in terms of the requirements of the attorney-client privilege. Accordingly, unless the Office of the County Judge/Executive can substantiate that all or portions of the records withheld are exempt under the attorney-client privilege, it must make copies of those records that are not protected by the privilege, or other applicable exemption in KRS 61.878(1), available to Mr. Hurst.
Moreover, as a former public employee, Mr. Hurst has a greater right of access to the investigative records at issue than the public generally. KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In analyzing this provision, the Attorney General has recognized:
. . . KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee. The final sentence of the provision authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
In contrast, this office has recognized that a public agency employee is entitled to review records relating to administrative actions which he or she initiated. Thus, in 93-ORD-19, we held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer in the course of investigating a formal complaint filed by the employee, even though those notes were otherwise exempt per KRS 61.878(1)(i). We reaffirmed that decision in 93-ORD-24, holding that the agency improperly withheld handwritten notes prepared by an agency officer during an investigation of a complaint initiated by the requester to whom the notes related.
95-ORD-97, p. 4.
By virtue of the rights granted by KRS 61.878(3), Mr. Hurst is entitled, to inspect and receive copies of any records, including preliminary and other supporting records relating to his job performance or disciplinary action, that are not otherwise exempt from disclosure under KRS 61.878(1)(k) and (l), such as the attorney-client privilege as noted above. Because he initiated the employee grievance and subsequent appeal, the concluding sentence in KRS 61.878(3), which authorizes an agency to withhold documents relating to an ongoing administrative investigation by the agency does not apply. 95-ORD-97.
In addition, some of the records at issue, although submitted by Mr. Hurst, were used by the agency in its consideration of Mr. Hurst's grievance and appeal. As such the records became "public records. " KRS 61.870(2) defines the term public record as "all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " (Emphasis added.) Since the records at issue were used by the agency in its consideration of Mr. Hurst's grievance and appeal, it qualifies as a public record in the possession of a public agency and is subject to the Open Records Act. As noted above, unless the Office of the County Judge/Executive can substantiate that all or portions of the records withheld are exempt under the attorney-client privilege, it must make copies of those records that are not protected by the privilege, or other applicable exemption in KRS 61.878(1), available to Mr. Hurst.
Finally, the agency advised Mr. Hurst that, as to the notations and markings made on the documents he had provided, it would be "virtually impossible" to redact them from the documents. This implies that at least some of the notations can be redacted. Here too, the agency has not sustained its burden to justify the blanket nondisclosure of the records with the notations on them, particularly the documents which Mr. Hurst had provided to the agency. As we concluded above, matters falling within the attorney-client privilege may be redacted, but otherwise copies of the records provided by Mr. Hurst should be made available to him.
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.