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 City of Covington violated the Open Records Act in its disposition of Janet New Brown's August 19, 2008, request for copies of "[a]ll Internal studies, reports, correspondence generated to analyze transfer, subcontracting of dispatch, 911, Emergency Services or reference dispatch, 911, Emergency Communication Services, from June 2008 to present."
By letter dated August 19, 2008, T. Alex Mattingly, Assistant City Solicitor, on behalf of the City, responded to Ms. New's request, advising her that the City had compiled 90 pages of records responsive to her request which would be made available to her upon prepayment of copying charges. He further advised her that some documents had been excluded from disclosure, explaining:
Items classified as preliminary recommendations or preliminary memoranda, in which opinions are expressed or policies formulated or recommended, have been excluded from disclosure. This includes any internal memoranda or emails that set forth or discuss recommendations or opinions regarding the Covington Dispatch Center and/or dispatching services. This is exempt under KRS 61.878(1)(j), which allows a public entity to exclude these items from an open records request. Other emails, memoranda, and/or documents are excluded because of attorney/client privilege; these documents are also exempt under KRS 61.878(1)(j).
Shortly thereafter, Ms. New initiated the instant appeal challenging the City's nondisclosure of the work product and preliminary documents under KRS 61.878(1)(j).
After receipt of notification of the appeal, Mr. Mattingly provided this office with a response to the issues raised in the appeal. In his response, he advised:
In response to Janet Brown New's appeal, the City of Covington reiterates that it has provided all responsive, non-exempt documents to Ms. New regarding her open records request of August 19, 2008. The City did not provide several internal memoranda and e-mails that set forth preliminary recommendations, preliminary opinions and legal opinions regarding the possible closure of the Covington Police Dispatch Center. The proposed dispatching arrangement with the Campbell County Consolidated Dispatch Center stalled in June 2008 and was never finalized or completed. Subsequently, the City undertook preliminary discussions with Kenton County regarding dispatch services, but has not taken any formal action.
Per KRS 61.878(1)(j), the City may exempt records that set forth preliminary recommendations or opinions regarding possible action concerning its dispatching services. The exemption of these records is supported by numerous Kentucky Attorney General Opinions and Open Records Decisions. See 03-ORD-165; 00-ORD-89; 99-ORD-42; 97-ORD-168; 92-ORD-1024; OAG 79-469; OAG 79-546; and OAG 80-289. To disclose these internal records would defeat the purpose of KRS 61.878(1)(j), which was created to insure the integrity of the decision-making process by protecting all pre-decisional agency documents. See 92-ORD-1024; 97-ORD-168.
Additionally, preliminary records do not lose their exempt status after final agency action is taken on the preliminary recommendations or opinions. See OAG 82-339; OAG 92-112. Assuming arguendo, even if the City had taken final action and closed its dispatch center, the records subject to this appeal would continue to be exempt from public disclosure (unless they are incorporated into a document giving notice of final agency action) .
Other e-mails and documents concern the City's legal defenses and opinions concerning the outcome of a union arbitration that took place on May 12, 2008. The arbitrator's decision was rendered on June 17, 2008. These items are also exempt under KRS 61.878(1)(j) because of the documents' status as preliminary legal recommendations and opinions, and are also exempt under the doctrine of attorney-client privilege. [(KRE 503(b)(1).]
KRS 61.878(1)(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
This office has consistently recognized that public records that are preliminary in nature qualify for exclusion only if they consist of drafts, notes, or correspondence with private individuals and/or recommendations or memoranda in which opinions are expressed or policies formulated, and that such records forfeit their exempt status only if they are adopted by the agency as part of its final action. City of Louisville v. Courier-Journal and Louisville Times, 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co, 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal and Louisville Times Co., see also, 01-ORD-83; 02-ORD-25; 03-ORD-030; 04-ORD-187; 06-ORD-021.
In 06-ORD-021, this office affirmed the City of Bowling Green's denial of a request for interagency email on the basis of KRS 61.878(1)(i) and (j). We quoted from Baker v. Jones, 193 S.W.3d 749 (Ky. App. 2006), at 752, in which the court recognized that "emails that were exchanged between the mayor and the city council members were preliminary discussions involving what course of action should be taken in regard to a controversy . . . [and therefore] preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . [which] were not subject to disclosure. " We analogized the disputed records to the email at issue in 05-ORD-221, affirming agency denial of access to emails containing recommendations and opinions, and concluding that the emails fell squarely within the parameters of KRS 61.878(1)(i) and (j).
As explained by the City, it withheld internal memoranda and e-mails which contained preliminary recommendations, preliminary opinions, and legal opinions regarding the possible closure of the Covington Police Dispatch Center and a proposed dispatching arrangement with the Campbell County Consolidated Dispatch Center, which stalled in June 2008 and was never finalized or completed. Because these records were not adopted by the City as a basis of or part of final agency action, they retain their preliminary nature. Accordingly, based on the authorities set out above, we affirm the City's partial denial of access of these records on the basis of KRS 61.878(1)(j).
Next we address the City's denial of records under authority of the attorney-client privilege. Pursuant to KRS 61.880(2)(c), and in order to facilitate our review of the issue on appeal, we asked that the City provide this office with copies of the records to which Ms. New was denied access on the basis of the attorney-client privilege for purposes of in camera inspection, and that the City elaborate on how the records satisfy the requirements of the privilege found at KRE 503.
Although we cannot reveal the contents of the records, we can generally describe them as e-mail discussions between the City Attorney, the City's contract attorney, City leaders, and City department heads regarding various legal issues and lawsuits in which the City was involved.
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, 80 S.W.3d 771 (Ky. App. 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:
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).
Our in camera review established that the communications were prepared as part of a professional relationship between 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, thus satisfying the first and second parts of the three part test. It is equally clear that the City has demonstrated that the confidentiality of the correspondence has been maintained from its creation to the present date. The City has continually maintained and asserted the attorney-client privilege with respect to these documents. It continues to do so up to the present. Moreover, we concur with Mr. Mattingly's assertion that these documents are regarded as confidential under KRS 503(b)(1) because of their status as "confidential communication made for the purpose of facilitating the rendition of professional legal services to the client or a representative of the client," and "between the client and a representative of the client." KRS 503(b)(1). In our view, the City has affirmatively satisfied the third part of the test. Accordingly, we find that the City properly withheld these records under authority of KRS 61.878(1)(l) and KRE 503.
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.