Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in the disposition of Dr. Rudolph S. Parrish's September 12, 2008, request for copies of e-mails pertaining to him. For the reasons that follow, we find that the University's response was substantively in compliance with the Act.
In his September 12 request, Dr. Parrish stated the following:
Pursuant to the state open records act, I request access to and/or copies of e-mails and correspondence between Angela Koshewa of the Office of University Counsel and Robert M Barker during the period from June 23, 2008 to the present date in which my name is mentioned or in which any reference to me occurs or in which a reference is made to Redbook Section 2.3.2 or in which any reference is made to grievances by a department chair.
The University of Louisville responded through an e-mail from records custodian William J. Morison, Ph.D., on October 22, 2008, 1 stating in pertinent part:
Ms. Koshewa gave copies of all of her relevant correspondence to me. I am providing them to you, with the following exceptions:
?
3. Koshewa to Katherine Niehaus dated 8/14/2008 7:26 AM re "Re: Parrish Grievance" ; constitutes request for/provision of legal advice, withheld under the attorney/client privilege. (KRS 61.878(1)(l) exempts from disclosure "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This document is so exempted from disclosure because it constitutes an attorney-client communication and is privileged pursuant to CRE [sic] 503, formerly numbered as KRS 422A.0503.)
4. Bossmeyer to Koshewa dated 7/9/2008 9:59 AM re "Re: Fwd: Termination of Chair Appointment,"; w/held as in no. 3 above.
5. Koshewa to Bossmeyer dated 7/8/2008 6:50 PM re "Re: Fwd: Termination of Chair Appointment,"; w/held as in no. 3 above.
6. Bossmeyer to Koshewa dated 7/8/2008 12:53 PM re "Fwd: Termination of Chair Appointment:; w/held as in no. 3 above.
7. Koshewa to Bossmeyer dated 7/3/2008 12:00 PM re "Re: Fwd: Rudolph S. Parrish, Ph.D."; w/held as in no. 3 above.
8. Willihnganz to James Ramsey and Koshewa dated 7/2/2008 9:07 PM re "Re: Fwd: Rudolph S. Parrish, Ph.D."; w/held as in no. 3 above.
9. Bossmeyer to Koshewa dated 6/25/2008 10:38 AM re "Grievance" ; w/held as in no. 3 above.
Dr. Parrish initiated an open records appeal on November 13, 2008, stating as follows:
The Open Records Officer claims that the records are not open records because they are subject to the attorney-client privilege. I do not agree for the following reasons:
In its response, submitted by attorney Deborah H. Patterson, the University of Louisville first points out that Dr. Parrish requested only those e-mails to which Robert M. Barker was a party, and since he was not a party to any of the withheld e-mails the University had no obligation to provide those documents to Dr. Parrish. While we recognize that this is the case, in the interest of obviating the need for a further request and appeal by Dr. Parrish we will proceed to decide this matter on the basis of the exemption asserted by the University.
It is well established that communications subject to the attorney-client privilege are exempt from disclosure under KRS 61.878(1)(l). Hahn v. University of Louisville, 80 S.W.3d 771 (Ky.App. 2001) (discretionary review denied August 14, 2002). Under KRE 503(b), the attorney-client privilege encompasses any confidential communications between a lawyer and client or a representative of the client that are "made for the purpose of facilitating the rendition of professional legal services to the client." We have reviewed the seven disputed e-mails in camera pursuant to KRS 61.880(2) and it is our conclusion that all of them are protected by the privilege, 2 nor does it appear that any of the exceptions to the attorney-client privilege under KRS 503(d) apply in this case.
The legal question raised by Dr. Parrish, however, is whether the exemption from disclosure provided by KRS 61.878(1)(l) is subject to the rule in KRS 61.878(3) that "[n]o exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, ? to inspect and to copy any record including preliminary and other supporting documentation that relates to him." On this point there is ample precedent in the decisions of this office to the effect that KRS 61.878(3) does not overcome the exemption for records made confidential under KRS 61.878(1)(l), which includes the exemption for attorney-client privileged communications. See, e.g., 08-ORD-065; 02-ORD-207; 98-ORD-124; 96-ORD-40. The University of Louisville therefore acted in accordance with the Open Records Act when it denied Dr. Parrish access to privileged e-mails. Since Dr. Parrish is not entitled to the e-mails under the attorney-client privilege, his arguments regarding due process and concealment cannot affect the outcome under the Act and therefore are not relevant to this decision. 3
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 proceedings.
Footnotes
Footnotes
1 It appears that a procedural violation of the Open Records Act may have been committed in this case, inasmuch as KRS 61.872(5) requires a response to a request within three (3) working days. Dr. Parrish has not raised this as an issue, however, and in the absence of any further account of the procedural history from the parties we cannot determine whether other correspondence occurred during the intervening time.
2 Dr. Parrish's argument that Dr. Robert Barker should not be considered a representative of Ms. Koshewa's client is moot, since Dr. Barker is not a party to any of the contested e-mails.
3 This office cannot address issues of due process in the context of an open records appeal. 08-ORD-142.