Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in denying Matthew R. Klein's January 14, 2010, request "for copies of any written communication or correspondence of any kind, including without limitation e-mail, exchanged between or among any and all Cabinet personnel and McBrayer, McGinnis, Leslie & Kirkland, PLLC, and/or MML&K Government Solutions since December 27, 2009, related in any manner to Boonespring Transitional Care Center, LCC." 1 By letter dated January 22, 2010, Anne E. Burnham, Assistant Counsel, advised Mr. Klein that 57 pages of records were being withheld on the basis of KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in accordance with Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), and prior decisions of this office. Having reviewed all of the documents (primarily e-mails) requested in camera, this office affirms the agency's denial of Mr. Klein's request on the basis of the KRE 503(b), and subsection (3) in particular. 2
In his January 29, 2010, letter of appeal, Mr. Klein explained that said records "pertain to a certificate of need application that the [CHFS] did not participate in as an affected party." Because the agency's "only involvement was the filing of a post-decision motion with the Administrative Hearings Branch that was stricken from the record by the Hearing Officer," Mr. Klein argued that "the documents cannot be protected under the attorney-client privilege and/or are not attorney work product. " This office respectfully disagrees.
Upon receiving notification of Mr. Klein's appeal from this office, Ms. Burnham responded on behalf of the agency, disagreeing with Mr. Klein's position as "KRE 503, the rule establishing the attorney-client privilege, is incorporated into the Open Records Act. " As Ms. Burnham correctly observed, this office has "long recognized that KRE 503 operates in tandem with KRS 61.878(1)(l), so as to justify the nondisclosure of records covered by the privilege. (See e.g. 97-ORD-127 and 02-ORD-14)." In fact, Ms. Burnham asserted, in Hahn the Kentucky Court of Appeals "confirmed that the Open Records Act does not override the attorney-client privilege codified at KRE 503." Accordingly, in her view the only issue presented in this appeal "is whether the records requested from the [CHFS] are covered by the privilege."
Quoting the language of KRE 503(b)(1) and (3), Ms. Burnham argued that said records "qualify for the privilege" for the following reasons:
First of all, within Mr. Klein's request, he sought copies of written communication by and between any Cabinet personnel. The persons whose communications are at issue here are the Executive Director of the Office of Health Policy, Carrie Banahan, and/or her staff, and the Cabinet Attorney assigned to this matter, Ann Hunsaker and/or the Cabinet's General Counsel, Kerry Harvey, or other staff/ attorneys in the office. Clearly any communications by and between Carrie Banahan and Ann Hunsaker and/or Kerry Harvey or anyone else in the Office of Legal Services about Boonespring made for the purpose of facilitating the rendition of professional legal services would be protected by the privilege. It should go without saying that these communications are privileged from disclosure under KRE 503(b)(1).
Next, Mr. Klein seeks any written communications by and between Cabinet Personnel (Carrie Banahan (and/or her staff) , Ann Hunsaker, Kerry Harvey (and/or other staff of the Office of Legal Services) ) and anyone at McBrayer, McGinnis, Leslie and Kirkland, PLLC (the law firm of record for Boonespring at the CON Hearing) and/or MML&K Government Solutions about Boonespring. However, all these communications are also covered by the attorney-client privilege, pursuant to KRE 503(b)(3). The Cabinet, in its post-decision brief to the Hearing Officer, took the same position as Boonespring: that the Hearing Officer's conclusion was erroneous. [Footnote omitted.] All the communications sought by Mr. Klein were generated as a result of the "joint defense" made by the Cabinet and counsel for Boonespring, albeit in separate pleadings.
Acknowledging that "the 'joint-defense' attorney-client privilege has not been discussed much" in Kentucky law, Ms. Burnham correctly noted that the "rule itself recognizes it and various federal court opinions have addressed the matter." Ms. Burnham then quoted the following instructive excerpt from Minebea Co., Ltd. v. Papst, 228 F.R.D. 13, 15 (D.D.C. 2005)(citations omitted):
"The joint defense privilege, often referred to as the common interest rule, is an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement." It protects communications between the parties where they are "part of an ongoing and joint effort to set up a common defense strategy" in connection with actual or prospective litigation. [Footnote omitted.]
Although the federal cases "suggest that the litigation at issue could be prospective," Ms. Burnham clarified, "Kentucky's rule requires that the litigation be 'pending.'" Ms. Burnham correctly observed that "[c]learly this prong of the rule has been satisfied, as the communications were in furtherance of assisting with the filing of consistent pleadings in the CON administrative hearing process."
According to Ms. Burnham, all of the records consist of communications "between Cabinet personnel and attorneys for parties who were assisting each other in a common interest or joint defense in a pending action, namely joint efforts to have the decision of the Hearing Officer reversed." In a letter dated February 17, 2010, the undersigned counsel thus asked the CHFS, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to provide this office with copies of the records for in camera review. Because our inspection of the records being sought confirms that all of the records do, indeed, fall squarely within the parameters of KRE 503(b)(3), this office affirms the agency's denial of Mr. Klein's request.
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 particular 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:
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, 3rd ed. 1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2nd Cir. 1989). Its purpose is to [e]nsure 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. . . ." KRS 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 Law Evidence Law Handbook § 5.10.
Id., 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. Id., p. 2. That result hinged upon the fact that the agency had "dealt with its attorneys as would any private party seeking counsel to protect its interests," thereby necessitating the "same assurances of confidentiality. " Id. See also 04-ORD-149; 03-ORD-243; 02-ORD-42. Expressly rejecting the appellant's argument that the record in dispute forfeited its exempt status if and when it was incorporated into the agency's final decision on the matter, the Attorney General reasoned:
This office has previously recognized that although a number of exceptions to the Open Records Act are forfeited "upon the occurrence of a specific event, this has never been the rule with respect to attorney work product [and documents shielded by the attorney-client privilege]." OAG 91-214. It is our opinion that reliance on legal advice is not synonymous with "incorporation" as that term is defined in the long line of cases interpreting KRS 61.878(1)(j). Simply stated, reliance on legal advice does not negate the attorney-client privilege.
97-ORD-127, p. 2.
More recently, the Kentucky Court of Appeals recognized that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] by the Kentucky General Assembly." Hahn, supra, at 771, 774. In upholding the University's reliance upon the privilege, the Court concluded:
Article V of the Kentucky Rules of Evidence (KRE) describes the nature and application of various privileges for confidential communications. The attorney-client privilege, the oldest of the privileges known at the common law, is governed by the provisions of KRS 503. It recognizes that sound legal advice and advocacy serve vital public purposes and that such advice and advocacy depend upon a guarantee of confidentiality between attorney and client. Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981).
KRE 503(b) provides that:
KRE 503(a)(5) states that a communication is deemed
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).
The University's proof indicated that the contested communications were sent by University counsel to the Chairman and Business Manager of the Psychiatry Department where Hahn was employed. Both of these individuals qualify as "representative[s] of the client." KRE 503(a)(2)(B). Our review of the documents demonstrated that the communications were made for the purpose of providing legal services to the University.
Hahn at 775-776.
Based upon the foregoing, in Hahn the Court held that the requested communications were protected by the attorney-client privilege. Similarly, in this appeal the first category of responsive communications would have been, as Ms. Burnham correctly observed, any exchanged "between or among" CHFS personnel. More specifically, the communications at issue would have been those of "the Executive Director of the Office of Health Policy, Carrie Banahan, and/or her staff, and the Cabinet Attorney assigned to this matter, Ann Hunsaker and/or the Cabinet's General Counsel, Kerry Harvey, or other staff/ attorneys in the office." Ms. Burnham was correctly asserted that any communications by and between those individuals, or any others in the Office of Legal Services, that related to Boonespring and were "made for the purpose of facilitating the rendition of professional legal services to the client" would be protected under KRE 503(b)(1); however, a review of the records at issue, which consist entirely of e-mails (including attachment containing a draft version of the Motion for Reconsideration and the Affidavit-25 pages total), confirms that all of the records withheld fall within the parameters of KRE 503(b)(3).
In 08-ORD-022, this office had its first and only prior occasion to address the application of the "joint defense privilege" or "common interest" rule 3 in affirming a denial by the Justice and Public Safety Cabinet of a request for all information/records in the possession of that agency concerning a request that the requester had previously submitted to the Educational Professional Standards Board, which had ultimately resulted in the issuance of a protective order against him. Having quoted the language of KRE 503(b)(3), this office, in relevant part, observed:
Robert G. Lawson, in The Kentucky Evidence Law Handbook § 5.10, (Michie, 3rd ed. 1993), at p. 238, discusses the application of KRE 503(b) and explains when there can be communication outside the attorney-client relationship without destroying the confidentiality of the communications through the application of the "joint defense" privilege or "common interest" rule to the attorney-client privilege:
08-ORD-022, p. 5 (other footnotes omitted from quoted material).
Our in camera review of the 57 pages withheld reveals that the vast majority are communications between Lisa Hinkle, a lawyer at McBrayer, McGinnis, Leslie & Kirkland, PLLC, the law firm of record for Boonespring, and Assistant Counsel Ann Hunsaker, the CHFS attorney representing the CHFS Office of Health Policy in the matter, with the only exceptions being an e-mail thread between Ms. Hinkle and CHFS General Counsel Kerry Harvey, and the final e-mail thread, which involved Mr. Klein directly. 5 Although this office cannot reveal the content of this correspondence, all of the e-mails can be summarized generally as discussions relating to preparation and submission of the Motion for Reconsideration and/or the Affidavit submitted in support thereof by the CHFS/OHP.
In sum, two clients (CHFS/OHP and Boonespring) and two sets of attorneys (CHFS Office of Legal Services and McBrayer, McGinnis, Leslie & Kirkland) were involved in this matter and engaged in communications that were unquestionably prepared as part of a professional relationship that existed between each client and its attorney(s). All of the e-mails were generated within the course and scope of that employment and related to the subject matter upon which professional advice was being sought by each client, namely, the "common interest" of having the Hearing Officer reconsider the Final Order denying Boonespring's CON application. Accordingly, the first and third parts of the three-part test are satisfied. The parties also ensured that all of these e-mail communications were specifically marked as confidential and attorney-client privileged, which establishes that the confidentiality of the correspondence has been claimed from the date of creation to the present. Although this office has recognized that a notation contained in a subject line is not controlling in the context of an open records dispute, this office has also held that such a notation will be respected when it is consistent with one or more of the exceptions to disclosure. OAG 90-13; 97-ORD-127. Here, the CHFS has continually asserted the attorney-client privilege in relation to said correspondence. 6 In our view, the CHFS has therefore satisfied the third part of the test. Finally, the action was pending at the time when all of the correspondence was generated as required for KRE 503(b)(3) to apply. For all of these reasons, the CHFS properly withheld the records at issue under authority of KRS 61.878(1)(l) and KRE 503(b).
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.
Matthew R. KleinAnne E. Burnham
Footnotes
Footnotes
1 Because MML&K Government Solutions is a lobbying group, all communications between personnel there and CHFS personnel would not necessarily be privileged; however, the record on appeal contains no such records and the Attorney General therefore makes no finding in this regard.
2 KRE 503(b)(3) extends the protection of theattorney-client privilege to confidential communications:
By the client or a representative of the client or the client's lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein[.]
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3 "'The common interest privilege is not an independent basis for privilege, but an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to a third party.'" Broessel v. Triad Guaranty Insurance Corporation, 238 F.R.D. 215, 219 (W.D. Ky. 2006), quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, American Bar Association Section of Litigation at 196 (4th ed. 2001). "For this reason, it 'assumes the existence of a valid underlying privilege.'. . . 'In effect, it states that privileged communications shared among and within a group of people will be deemed to have been made in confidence. ' Id." Broessel at 219.
4 The joint defense concept contemplates two clients and two lawyers with a common legal objective. It is clearly distinct from the "joint client" exception to the lawyer client privilege which is defined by KRE 503 and described in a subsequent part of this section.
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5 Most of the e-mails were derived from the account of Ann Hunsaker although two were derived from the account of Ms. Banahan and one was derived from the account of Mr. Harvey. In any event, much of the content is duplicative, all of the content is confidential and relates to the specified "common interest, " and the e-mails were only copied to some combination of those individuals and/or the legal assistant of Ms. Hinkle.
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6 In providing the records to us for in camera review, the CHFS reiterated its position that all of the records were protected under the attorney-client privilege and/or the doctrine of attorney work product, and correctly noted that disclosure of the records for that limited purpose did not "constitute a waiver of these privileges" given our quasi-judicial function.
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