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 Lee Adjustment Center (LAC) properly relied on KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying inmate Paul A. Tester's March 31, 2008, request for a copy of "the letter [LAC Assistant Warden] Donna Stivers wrote to Melissa Brunelle concerning CCA's decision about (Hippa) (sic) and my medical records soon to arrive here at CCA/Lee adjustment (sic)." For the reasons that follow, we find that Lee Adjustment Center properly denied access to the requested record as it is protected by the attorney-client and work product privilege under authority of KRS 61.878(1)(l) and KRE 503.
In a response dated April 1, 1008, Betty Shepherd, Offender Records Custodian, LAC, denied Mr. Tester's request, stating that "[t]his record is protected by privilege information KRS Revised Statute 61.878(1)(l)."
On April 3, 2008, Mr. Tester initiated the instant appeal stating that the LAC failed to cite the statute making the record confidential or provide a brief explanation of how the exception applied to the record withheld.
After receipt of notification of the appeal, Cole Carter, Assistant General Counsel, Corrections Corporation of America (CCA), provided this office with a response on behalf of LAC to the issues raised in the appeal. In his response, he advised that there was no letter from Ms. Stivers to Ms. Brunelle that matched Mr. Tester's request. He further explained:
In preparation of this response, I contacted Ms. Stivers by telephone. She informed me that she did not write a letter to Ms. Brunelle regarding inmate Tester. In fact, she had forwarded an electronic mail I composed and sent on March 30, 2008, regarding this issue to Ms. Brunelle for implementation.
Addressing the email at issue, Mr. Carter indicated that the email implicated by Mr. Tester's request was provided in the course of rendering legal advice, and, in responding to the request, LAC had correctly construed the request to involve his email to Ms. Stivers. Mr. Carter advised that he had written the email when Ms. Stivers contacted him seeking legal advice on an inmate's insistence that she was legally prohibited from searching certain mail sent to him. Arguing that the LAC had properly declined to release the email as privileged, Mr. Carter contended:
In my role in the Office of the General Counsel for CCA, I am specifically responsible for providing legal guidance to our employees in the operations division of the company. That guidance frequently relates to institutional security issues, including inmate mail management. In this case, Ms. Stivers contacted me when an inmate asserted his mail was entitled to special protection under federal law - protection that would preclude a security screening of his mail. Ms. Stivers explicitly sought legal advice. I responded by electronic mail to her question, furnishing a legal basis for her decision. I am an in-house attorney, and the company is my client. When an inmate cites a legal basis for questioning an operational judgment, operations personnel quite reasonably fear that the inmate is establishing a basis for litigation. We depend on attorney client privilege and work product doctrine and the attendant confidentiality of each as I render legal advice to them. Your office has upheld the privilege of confidential correspondence between client and attorney in the face of an open records request, including instances when the attorney in question was an agency attorney rendering legal advice to employees of the agency, see 08-ORD-022. We assert that the records are privileged, and entitled to protection afforded by Kentucky Rules of Evidence 503 as grafted into the open records statute by Kentucky Revised Statute 61.878(1)(l).
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:
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:
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, 3d ed. 1993), citing United States v. 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. 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 . . . ." KRE 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 Evidence Law Handbook § 5.10.
97-ORD-127.
As LAC's supplemental response indicates, the email was prepared by its in-house counsel as part of his professional relationship with the institution in order to provide Ms. Stivers with legal advice on an inmate's insistence that she was legally prohibited from searching certain mail sent to him, thus satisfying the first and second parts of the three-part test. It is also clear that LAC has attempted to insure that the information contained in the email was shielded from disclosure, as the legal advice was rendered in confidence and received by only LAC operations personnel. In addition, the Board has made continuing efforts to insure the confidentiality of the reports by denying Mr. Tester's request under authority of the attorney-client privilege. In our view, LAC has affirmatively established confidentiality, the evidence demonstrating that every effort was made to protect the email within the agency from the date it was prepared to the present. 08-ORD-022.
Accordingly, we believe that KRS 61.878(1)(l), operating in tandem with KRE 503, justifies the nondisclosure of the implicated email. It is the opinion of this office that the Board properly withheld the email prepared by its in-house counsel pursuant to the attorney-client and work product privilege.
Next, we address Mr. Tester's contention that LAC's initial response failed to comply with the requirements of KRS 61.880(1). In its supplemental response, LAC acknowledged that while it did cite KRS 61.878(1)(l) and indicate the document was privileged, an additional explanation of the applicability of the exception would have more fully conformed with the requirements of KRS 61.880(1). LAC stated a fuller initial response could have explained that the document sought comprised professional advice of attorney to client, and therefore protected by privilege pursuant to the statute cited by Ms. Shepherd which incorporates KRE 503. LAC has acknowledged that its initial response did not fully comply with KRS 61.880(1), and we will not belabor this point. The agency advised in its supplemental response to this office that this issue has been discussed with staff at LAC to ensure proper responses, meeting the requirements of KRS 61.880(1), are made in the future.
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.