Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Cabinet for Health and Family Services failed to satisfy its statutorily assigned burden of proof in denying Cabinet employee Kindra Kilgore's January 25, 2010, request for copies of:
. all documents and notes that pertain to Kindra Kilgore that are held and/or generated by Patricia Wilson, Commissioner; Bruce Linder, Director; J.P. Hamm, Appointing Authority; Kimberly Tucker; and Lisa Prewitt, SRA during the time period from December 2008 to January 2010;
. all documents supporting the ratings Lisa Prewitt, SRA, gave on Kindra Kilgore's 2009 year end evaluation from January 2009 to October 2009;
. all documents, notes, [and] emails that Ms. Prewitt had with Kindra Kilgore or about Kindra Kilgore with any other individuals.
The Cabinet's response was both procedurally and substantively deficient.
On March 2, 2010, 1 the Cabinet released a number of records to Ms. Kilgore "with the following exceptions." The Cabinet advised that "KRS 61.878(1)(i) provides an exemption for 'Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. '" The Cabinet's response contained no further explanation. Ms. Kilgore thereafter initiated this appeal, questioning the Cabinet's refusal to provide her with copies of all records relating to her in light of the fact that the records "are about [her] and were used in ways to respond to [her] grievance of 2009 and [her] 2009 evaluation."
On appeal, the Cabinet invoked KRS 61.878(1)(l) and KRE 503 "as some of the records are protected by the attorney-client privilege." In support, the Cabinet cited Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001) and 02-ORD-14 for the proposition that the Open Records Act, and in particular KRS 61.878(3), does not override the attorney-client privilege. It was the Cabinet's position that "any records subject to the attorney-[client] privilege, although they may relate to an employee, are not subject to disclosure." Acknowledging its error in invoking KRS 61.878(1)(i) to support nondisclosure of responsive records, the Cabinet released an additional 83 pages of records to Ms. Kilgore. Ms. Kilgore responded by questioning the applicability of the attorney-client privilege to "meeting notes or supervision notes of meetings [Lisa Prewitt, Bruce Linder, and Kimberly Tucker] had with [her] . . . as there never was an attorney present" and its applicability to email or correspondence in which she "was named as a recipient." 2 Absent a particularized showing that the records withheld under the privilege qualify for the privilege, we agree with Ms. Kilgore.
At page 6 of 10-ORD-079, the Attorney General observed:
KRS 61.880(2)(c) provides that an agency resisting disclosure has the burden of proof to sustain its action. In light of the statement of legislative policy set forth at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others," we are not prepared to accept, without independent confirmation, that all of the responsive documents are shielded from public inspection by [the cited exception(s)].
We determined that the agency against which the appeal was brought had not met its burden of proof in denying the requester access to the records sought by virtue of its failure to honor, in a timely fashion, our request for copies of the records under authority of KRS 61.880(2)(c) and its failure to adequately explain the application of the cited exception to the records withheld.
We are confronted with a similar situation in the appeal before us. Although there is clear legal authority supporting the Cabinet's position that, KRS 61.878(3) notwithstanding, 3 a requester who is both a party to litigation and a public agency employee cannot access under the Open Records Act records that pertain to that litigation and are "beyond discovery under the Civil Rules," it is not self-evident that the records the Cabinet withheld from Ms. Kilgore are beyond discovery as privileged material. On May 20, 2010, this office requested that the Cabinet provide us with copies of the disputed records, pursuant to KRS 61.880(2)(c), 4 for in camera inspection. Given the time constraints and demands facing both the Cabinet and this office, we agreed to a request for additional time to produce the records. Those records, which reached this office while this decision was being drafted, consisted of two emails from Bruce Linder, Director of the Division of Service Regions in the Department for Community Based Services, to Lisa Prewitt, Service Region Administrator, and Mona Womack, Deputy General Counsel. Mr. Linder, who is not an attorney, captioned the emails "Attorney-Client Privileged Communications," and in the first email indicated that he had "included Mona on this for Privileged Communication reasons . . . ." One of the emails contains information being gathered by Mr. Linder in preparation for the Cabinet's response to Ms. Kilgore's grievance filed with the personnel board. The second email contains a discussion of what appears to be possible settlement terms. However, there is no indication on the face of these emails that they were submitted to Ms. Womack at her behest or that her counsel was sought with regard to their content or subject matter.
Kentucky's courts have declared:
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).
Commonwealth, Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008) cited in 09-ORD-095. It was, therefore, incumbent on the Cabinet to offer "particularized demonstration" that each record withheld was privileged. Id. Merely designating the public records "Attorney-Client Privileged Communication" did not necessarily make it so. Accord, 98-ORD-140; 93-ORD-38.
As previously stated, the disputed records are emails between two non-attorneys and discuss either preparations for responding to Ms. Kilgore's grievance or what appear to be possible terms of a settlement agreement. The seminal fact that is missing from the agency's response is whether the emails and their content were generated by Mr. Linder and Ms. Prewitt at the request of or in an effort to assist Ms. Womack as counsel to the Cabinet. If so, these emails and the information contained in them would likely be protected because they were generated in preparation of a legal defense. However, it is impossible to determine on the face of the documents, or based upon the evidence submitted by the Cabinet, whether agency counsel was copied merely in an attempt to assert the attorney-client privilege and avoid the application of KRS 61.878(3), or whether she was copied in an effort to facilitate the rendition of professional legal services. Unlike the records at issue in Hahn, above, it is not apparent that they were exchanged for the latter purpose, and the Cabinet makes no particularized showing that they were.
There is no question that all public records sent to or reviewed by agency counsel do not necessarily qualify for protection under KRS 61.878(1)(l) and KRE 503. This would be inconsistent with the principle that the privilege "must be strictly construed and given no greater application than is necessary to further its objectives." R. Lawson Kentucky Evidence Law Handbook § 5.10, p. 232 (1993). In this instance, the Cabinet has failed to meet its burden of proof in asserting the necessary factual information that would render these emails subject to the attorney-client privilege.
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.
Kindra KilgoreJay KleinAnne E. Burnham
Footnotes
Footnotes
1 The Cabinet offers no explanation for the delay in responding to Ms. Kilgore's request. Reference is made in the record on appeal to a February 11 email in which the Cabinet indicated it "would be willing to provide [her] with only a small portion of the documents that [she] requested." The record on appeal does not contain a copy of this letter. Regardless of whether the Cabinet's response was issued on February 11 or March 2, it contravened KRS 61.880(1) insofar as it was untimely and devoid of a "brief explanation of how the exception applies to the records withheld. "
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2 Ms. Kilgore also objects to the proposed mode of inspection and costs assessed for copies. In the interest of brevity, we will not belabor this issue. Ms. Kilgore may obtain copies from the Cabinet at a cost of ten cents per page per 200 KAR 1:020 Section 3(1) and can be required to conduct on-site research in the county where the records are maintained if she elects to access them in this fashion.
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3 KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
4 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
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