Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Arena Authority violated provisions of the Open Records Act, or subverted the intent of the Act, in the disposition of W.W. Chilton III's September 25, 2008, request for, inter alia:
All documents that reflect complete bills, invoices, or statements for legal services by Greenebaum Doll & McDonald PLLC and payable by the Arena Authority, whether maintained by the Arena Authority or by Greenebaum.
Mr. Chilton acknowledged the Authority's right to "redact from those actual bills, invoices, or statements such limited narrative descriptions of work performed that provably disclose confidential attorney/client communications and work product," but objected to "blanket nondisclosure" that included "such information as date of service, billable rates, number of hours worked, amount charged, or general descriptions of the nature of service - i.e. 'research,' 'witness interviews,' 'discussions with client.'" These questions must be answered in the affirmative.
The Authority responded to Mr. Chilton's request on September 30, 2008, advising him that "it will need a response time greater than the three (3) days prescribed by KRS 61.872(5) so that any responsive documents can be reviewed for exemptions provided for in KRS 61.878," and indicating that "[t]he responsive documents will be provided . . . within a reasonable time. " Although Mr. Chilton obtained copies of "invoices supporting the amounts paid to Greenebaum for time periods spanning roughly two years" from the attorney representing his company in pending litigation in the Franklin Circuit Court, he has not, to date, been afforded access to "draft work detail . . . which discloses legal professional work detail of the nature sought by [Mr. Chilton's] request." For the reasons that follow, we find that the Authority's disposition of the request constituted a procedural violation of the Act, that its failure to afford Mr. Chilton timely access to the requested records subverted the intent of the Act, and that its reliance on KRS 61.878(1)(i) and KRS 61.872(6) to support nondisclosure of the records was misplaced.
In supplemental correspondence directed to this office following commencement of Mr. Chilton's appeal, the Authority advanced a number of new arguments in support of its position. Chief among these arguments was the Authority's assertion that because it has not denied Mr. Chilton's request, this matter is not ripe for review. Alternatively, the Authority invoked KRS 61.878(1)(i) , arguing that the draft work detail, which "the Arena Authority's Chairman reviews . . . sometimes with the General Counsel[,]. . . is not incorporated by either Greenebaum or the Arena Authority into the Invoice; rather, the Arena Authority pays Greenebaum based solely on the Invoice. " (Emphasis in original.) Finally, the Authority asserted that, when viewed in the context of his other requests, Mr. Chilton's request for billing records was unreasonably burdensome because it "implicates voluminous records requiring separation of excepted and nonexcepted materials." 1 We find each of these arguments unpersuasive.
KRS 61.880(4) authorizes the Attorney General to "subject to the same adjudicatory process as if the record had been denied," open records complaints premised on the applicant's belief that "the intent of KRS 61.870 to 61.884 is being subverted by the agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant." This office has entertained numerous open records appeals postulated on the agency's failure to afford the applicant timely access to public records. See, e.g., 00-ORD-117 (City of Hopkinsville subverted the intent of the Open Records Act by failing to afford applicant timely access to business license database.) Given the circumstances of this appeal, the Attorney General is authorized to adjudicate the Authority's disposition of Mr. Chilton's request, pursuant to KRS 61.880(4), based on its failure to afford him timely access to the records identified in his request, and KRS 61.880(2), based on its reliance on KRS 61.878(1)(i) to support nondisclosure of those records.
Mr. Chilton submitted his request on September 25, 2008, and, as noted, was advised that the Authority could not produce responsive records within three business days because the records had to "be reviewed for exemptions provided for in KRS 61.878." The Authority nevertheless assured him that the records would be provided "within a reasonable time. " In response to his continuing inquiries, Mr. Chilton was reassured that "Greenebaum is currently compiling responsive documents and reviewing the documents to redact exempt and/or privileged information." On November 19, 2008, he was advised that the Authority "has continued to follow up with Greenebaum on the status of its review since [his] September 25 request and in fact was given assurances earlier this week that a review would be completed by the end of the week." On November 21, the Authority requested "an informal opinion from the Office of the Attorney General under the Open Records Act that the Arena Authority need not provide hundreds and hundreds of pages of draft work detail which contain attorney-client privileged material in response to a request made pursuant to the Open Records Act because the documents are exempt preliminary records," and has, since Mr. Chilton initiated this appeal, resisted disclosure.
Some two months elapsed between the date of the records application and the date on which the Authority requested an "informal opinion" from this office that it was not obligated to honor the application, and its statutory duties under the Act were not suspended by its submission of that request. 2 The Authority is well-aware that KRS 61.880(1) contemplates records access within three business days of receipt of the records request. The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
Elaborating on this view, in 01-ORD-38 the Attorney General declared that "KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. " The Authority's responses to Mr. Chilton's request were deficient insofar as they did not contain a detailed explanation of the cause for delay or a projected date, much less a date certain, on which the records identified in that request would be available. Its statement that the records must be "reviewed for exemptions provided for by KRS 61.878" constituted far less than a detailed explanation of the cause for delay and was largely self-evident. Given its subsequent course of conduct, we question its candor in committing to release of the records "within a reasonable time. "Although an extension of the standard three day deadline for agency response and release of records may be warranted in this instance, the Authority's disposition of Mr. Chilton's request fell far short of the procedural mark.
Turning to the substantive issues on appeal, we note that the Authority acknowledges that
Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328 (Ky. App. 2008) represents controlling legal authority on the issue of access to contract attorney billing records. At page 330 of that opinion, the court approved the position taken by this office in "several open records decisions . . . that 'a public agency must release the billing statements prepared by attorneys retained by the agency reflecting the general nature of legal services rendered, but may redact substantive matters protected by the attorney-client privilege,'" concluding that "the Attorney General's general statement of the law [is] correct" and rejecting "blanket redaction of all descriptive portions of . . . billing records without particularized demonstration that each description is privileged." The court observed:
The attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions. See KRE 503. [T]he burden of proof of demonstrating that a requested public record falls within the attorney-client privilege falls upon the [agency]. See KRS 61.882(3). [W]e cannot imagine that each and every description of services rendered contained in billing statements prepared by non-government lawyers . . . falls under the attorney-client privilege.
Id. Notwithstanding this clear statement of the law, it is the Authority's position that the public's interest in monitoring the expenditure of public funds for contract legal services is adequately served by disclosure of the invoices upon which payment is made and not by disclosure of the underlying work detail. 3 We disagree.
The disputed work detail forfeited its preliminary status under KRS 61.878(1)(i) upon payment of the invoices. KRS 61.878(1)(i) authorizes nondisclosure of "[p]reliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " In 01-ORD-83, this office provided clarification on the issue of when a preliminary record forfeits its protected status in response to an agency's argument that the preliminary record need only be disclosed if it is incorporated into final agency action. At pages 13 and 14 of that decision, we observed:
In City of Louisville v. Courier Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982), Board of Medical Licensure v. Courier Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983), and University of Kentucky v. Courier Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992), the courts employed the term "adopt" rather than "incorporate" when referencing preliminary records that forfeit their preliminary characterization. [Footnote omitted.] The term "incorporate" appears in City of Louisville only with reference to the complaints that spawn an investigation, and that are "deemed incorporated as a part of . . . final determinations" inasmuch as "whatever final actions are taken necessarily stem from them . . . ." City of Louisville at 660 (emphasis added).
These terms are not synonymous or interchangeable. The concept of incorporation by reference has a narrow legal meaning, and is defined in Black's Law Dictionary as "[t]he method of making one document of any kind become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as a part of the latter the same as if it were fully set out therein." Black's Law Dictionary, 690 (5th ed. 1979). To adopt, on the other hand, means "to accept, appropriate, choose, or select . . .," Id. at 45, or "[t]o take and follow (a course of action) by choice or assent . . . [t]o take up and make one's own." American Heritage Dictionary 12 (3rd ed. 1994). In our view, the courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary reports and records, to avoid a narrow, legalistic interpretation. . . . Where the preliminary report or records are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) . . . exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed.
Resolution of this appeal does not turn on whether the work detail was incorporated into the invoices, but on whether the work detail was adopted by the Authority as the basis of payment for legal services upon presentation of the invoices.
The Authority acknowledges that its chairman "reviews . . . sometimes with General Counsel" the work detail, but suggests that payment is "based solely on the invoice. " Respectfully, we can envision no set of circumstances that support this "disconnect." The invoices with which Mr. Chilton provided this office are entirely devoid of any itemization of the legal services rendered. 4 We trust that the Authority does not blindly issue checks in the amounts of, e.g., $ 208,481.93, without inquiring into the services for which it is paying. We reject, without further analysis, the argument that the work detail retains its protected "draft" status after payment is made.
We also reject the Authority's characterization of Mr. Chilton's request as unreasonably burdensome under KRS 61.872(6). That statute provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In construing this provision, the Kentucky Supreme Court recently declared that "a public agency refusing to comply with an open records request on this unreasonable burden basis faces a high proof threshold since the agency must show the existence of an unreasonable burden 'by clear and convincing evidence. '"
Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008). Noting that the affidavits submitted by the agency were "not particularly convincing because they [were] vague on the subject of how much time it takes to comply . . .," the Court nevertheless stated that it was "satisfied that the task of determining what materials are properly subject to an . . . open records request is tedious and time-consuming work," but that it was not persuaded that the request "automatically constitute[d] an unreasonable burden. " Id. at 664. Continuing, the Court determined that the "winnowing process required of the [agency]," to separate excepted materials and make nonexcepted materials available did not "rise to the level of an unreasonable burden under KRS 61.872(6) ," inasmuch as this is an existing statutory obligation under KRS 61.878(4). 5 Id. at 665.
Additionally, the Court declared that "[a] record's length, standing alone, is an insufficient reason to exempt it from open records disclosure, " and therefore does not provide a basis for refusing "to comply with an otherwise valid open records request." Id. at 666. Nor, the Court concluded, did the agency's "method of organizing its files . . . ." Id. In sum, the Court held that an agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id., citing KRS 61.8715 (stating that "to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes"). Nor, we would add, should it be able to avoid meaningful accountability through subterfuge.
Assuming, arguendo, that these remain relevant considerations after Chestnut, the Authority offers scant information as to the actual volume of records implicated by Mr. Chilton's request, records that by its own admission have already been compiled, or why it should be relieved of its existing statutory obligation to redact privileged information contained therein. 6 As noted, "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden, " and in most, if not all, cases, the process of redaction necessitates a "page-by-page, entry-by-entry, word-by-word" review. The Authority's assertion that redaction of privileged material from responsive work detail is an "arduous endeavor" and a "heavy burden" is no evidence at all. We therefore find that the Authority failed to adduce clear and convincing evidence of an unreasonable burden.
We conclude that the Louisville Arena Authority violated KRS 61.872(5) in failing to provide a detailed explanation of the cause for delay in disclosing the records identified in item three of Mr. Chilton's September 25, 2008, request, and subverted the intent of the Open Records Act, within the meaning of KRS 61.880(4), in failing to afford him timely access to the records, notwithstanding its repeated assurances over a two month period of time that the records had been retrieved and were in the process of being reviewed and redacted. Finally, we find that the Authority improperly relied on KRS 61.878(1)(i) in asserting that the work detail, which is inextricably linked to the invoices for legal services upon which payment is made, retain their preliminary characterization after payment is made, and that it failed to establish by clear and convincing evidence that production of the requested records constitutes an unreasonable burden as contemplated by KRS 61.872(6).
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 Authority explains that "there are hundreds and hundreds of pages of documents that require redaction, page-by-page, entry-by-entry, word-by-word," expressing concern that the failure to redact one privileged entry might constitute a "blanket privilege waiver."
2 The Attorney General has consistently rejected agency entreaties that he opine on the release of records that are the subject of a pending open records request. See, e.g., 96-ORD-114 (holding that "In view of its quasi-judicial function in the resolution of disputes under the Open Records Act, the Attorney General's Office cannot advise a public agency how to handle a particular request for access to public documents"). We continue to adhere to this position. See also, 01-OMD-053; 03-OMD-058.
3 As noted, the Authority did not provide Mr. Chilton with copies of these invoices in response to the subject request. He obtained them from the attorney representing him in a legal action currently pending in the Franklin Circuit Court.
4 For example, invoice number 4107801, dated December 15, 2006, reads in its entirety:REMITTANCE PAGEINVOICE TOTAL$ 208,481.93
Given the paucity of information contained in the invoice, it is apparent that the public's interest in monitoring the expenditure of public funds for legal services rendered is not satisfied by disclosure of these "sanitized" records.
5 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.
6 We deny the Authority's request that we "conduct an in camera review of the draft work detail as proposed to be redacted by counsel for the Authority prior to their disclosure to the Requestors." Not only is this the functional equivalent of a request that this office issue an advisory opinion on the Authority's proposed course of conduct, but, as the Authority correctly notes at page 7 of its supplemental response, such a review "must be informed by knowledge of the legal issues facing the Arena Authority, and sometimes, by research and analysis as to whether a privilege applies." This office has no knowledge of the legal issues facing the Authority and is not inclined to perform research for the Authority.