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 Open Records Act in partially denying Kindra Kilgore's March 13, 2010, request for "a copy of the investigation that was completed by Angela Hockensmith in February and March of 2010 involving a complaint filed by Kindra Kilgore against Lisa Prewitt, SRA [Service Region Administrator]." In a timely written response, Anne E. Burnham, Assistant Counsel, advised Ms. Kilgore that no such records exist because Ms. Hockensmith did not conduct her own investigation into said complaint; however, Ms. Hockensmith did forward Ms. Kilgore's complaint "to Cabinet personnel for review." According to Ms. Burnham, "[a]ll of the records generated as a result of this review by Cabinet personnel, except for the two pages of records enclosed herewith, are exempt from disclosure because they are subject to the attorney-client privilege." Having reviewed the documents (43 pages of e-mails) in camera, all of which are confidential communications between representatives of the CHFS and its legal counsel, "made for the purpose of facilitating the rendition of professional legal services, " this office affirms the denial of Ms. Kilgore's request on the basis of KRE 503(b), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 and KRE 503(b)(1) in particular.
In her March 19, 2010, letter to Ms. Kilgore, Ms. Burnham explained:
. . . First of all, Ms. Hockensmith who received your complaint about Ms. Prewitt, is the Cabinet's coordinator for complaints made to the Governor's Office and, given that this Cabinet consists of 13 program agencies employing in excess of 7,500 persons, she cannot be expected to have in depth knowledge about every program operated by the Cabinet. It would not be feasible for Ms. Hockensmith to conduct her own "investigations" into complaints made about actions or inactions of the Cabinet. Bearing that information in mind, Ms. Hockensmith has forwarded your concerns to appropriate Cabinet personnel to be reviewed, however, she did not, herself, conduct an independent investigation. Therefore, there are no records responsive to your request for an "investigation that was completed by Angela Hockensmith."
Your request is further denied on the grounds that, while Ms. Hockensmith did not conduct an investigation on her own, she did forward your concerns to Cabinet personnel for review. All of the records generated as a result of this review by Cabinet personnel, except for the two pages of records enclosed herewith, are exempt from disclosure because they are subject to the attorney-client privilege. In accordance with a long line of Attorney General Opinions[/Decisions] and decisions by the courts of this Commonwealth, KRE 503 is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and, therefore, these records are exempt from disclosure. (See 02-ORD-14 and Hahn v. University of Louisville, 80 S.W.3d 771 (Ky.App. 2001), wherein it has been recognized that KRS 61.878(1)(l) operates in tandem with KRE 503 so as to justify the nondisclosure of records protected by the attorney-client privilege and/or doctrine of attorney work product. (See also 97-ORD-127).
By letter dated April 6, 2010, Ms. Kilgore initiated this appeal.
Upon receiving the notification of Ms. Kilgore's appeal, Ms. Burnham elaborated upon her initial response, providing the following background:
As stated in her request, Ms. Kilgore filed a complaint against Ms. Prewitt [previously her immediate supervisor, now her second line supervisor following Ms. Kilgore's voluntary demotion from SRA Associate to Social Service Specialist]. She filed this complaint with the Governor's Office. As is their usual course, the Governor's Office referred the complaint to the Cabinet exercising control over the subject matter. Within this Cabinet, Angela Hockensmith's job is to review the complaints received from the Governor's Office and constituents, [and] to direct them to the appropriate agency within the Cabinet which is responsible for the program at issue, and the appropriate agency drafts and sends a response to the constituent. Considering that this Cabinet is one of the largest in the Executive Branch, it is not possible for Ms. Hockensmith to personally "investigate" each complaint made to the Governor's Office. Instead, Ms. Hockensmith relies upon the program agency to determine if the complaint has merit and what, if anything, can and should be done as a result of the complaint. Ms. Kilgore was notified in the Cabinet's March 19, 2010 correspondence that Ms. Hockensmith did not personally conduct any "investigation" into her complaint and this process, although not in as much depth as it is described herein, was described to Ms. Kilgore in explanation as to why the Cabinet lacked documentation response to her request.
As outlined above, Ms. Hockensmith, upon receipt of the complaint from the Governor's Office, forwarded the complaint to the appropriate Cabinet agency, in this case the Department for Community Based Services ("DCBS"). The e-mail, consisting of two (2) pages, in which Ms. Hockensmith notified DCBS of the complaint, has already been provided to Ms. Kilgore. However, all correspondence generated after the initial e-mail included counsel for the Cabinet for the purpose of obtaining legal advice. In fact, such legal advice was provided in some of the e-mails, and, in some occasions, the e-mails caused verbal communications to be had on the topic of the e-mails. (Emphasis added.)
Because counsel "was included on the e-mails for the purpose of obtaining legal advice, and did in fact provide input and legal advice, " Ms. Burnham continued, the CHFS denied Ms. Kilgore's request in accordance with 02-ORD-14 and Hahn, above. Citing 97-ORD-127 and 02-ORD-14, Ms. Burnham noted that the Attorney General's 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." Specifically, Ms. Burnham relied upon KRE 503(b)(1) in reiterating the agency's position. As the CHFS interpreted Ms. Kilgore's March 13 request, Ms. Burnham clarified, "she was seeking copies of an investigative report, which does not exist, and any records that would have been attached to such non-existent report." However, the CHFS "simply cannot produce what does not exist and has no obligation to create a record that is not in existence at the time of the request."
Ms. Burnham is correct in asserting that the CHFS cannot produce nonexistent records for inspection or copying. Nor must the CHFS "prove a negative" in order to refute a claim that certain records exist under governing case law, or create a record to satisfy a request. 2 Inasmuch as the only remaining documents responsive to Ms. Kilgore's request fall within the parameters of KRE 503(b)(1), as our in camera review confirmed, the agency's denial is affirmed.
With regard to statutory obligations of a public agency upon receipt of request for nonexistent records, the analysis contained in 07-ORD-188 is controlling; a copy of that decision is attached hereto and incorporated by reference. As the Attorney General has long recognized, a public agency cannot produce nonexistent records for inspection or copying. 07-ORD-190, p. 6. Rather, the right of inspection attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Act by affirmatively indicating that no such records exist in a timely written response just as the CHFS did here. 3
The role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate. Since KRS 61.8715 was enacted in 1994, however, this office has applied a higher standard of review to denials premised on the nonexistence of the records being sought. Pursuant to KRS 61.8715, "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the record(s) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents during the specified time frame). When, as in this case, the agency denies the existence of the records, and the evidence supports rather than refutes that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9.
In responding to Ms. Kilgore's March 13 request and her appeal, the CHFS advised that Ms. Hockensmith did not conduct any "investigation" upon receipt of her complaint. The CHFS now finds itself in the untenable position of having to "prove a negative" in order to refute Ms. Kilgore's claim that such records exist. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 4 In the absence of such a prima facie showing, this office must affirm the agency's denial of Ms. Kilgore's request as to nonexistent records in accordance with Bowling, above. To hold otherwise would result in the CHFS "essentially hav[ing] to prove a negative" in order to refute Ms. Kilgore's claim that additional responsive documents exist. 07-ORD-190, p. 7; 07-ORD-188. Given this determination, the remaining question is whether the CHFS properly withheld the subject e-mails on the basis of KRE 503(b)(1). Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, the undersigned counsel asked Ms. Burnham to provide this office with a copy of each of the e-mails withheld for purposes of in camera review. Because our inspection of the records in dispute confirms that all of the records do, in fact, qualify for protection under KRE 503(b)(1), this office finds no error in the agency's disposition of Ms. Kilgore'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 its Office of Legal Services on the basis of KRE 503. Of particular significance here, the Attorney General observed:
KRS 61.878(1)(l) . . . 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. 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, 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.
As the CHFS correctly noted, 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, above, at 771, 774. However, the analysis does not end there. In upholding the University's reliance upon the privilege, the Court reasoned as follows:
[The attorney-client privilege, codified at KRE 503,] 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 (emphasis added). Because the University had established that all of the elements necessary for invocation of the privilege were present in Hahn, the Court held that the requested communications were properly withheld on the basis of KRE 503.
More recently, the Kentucky Supreme Court recognized that 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."
Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008). The Attorney General recently applied Scorsone in resolving a separate but related appeal by Ms. Kilgore which resulted from the denial by the CHFS of her January 25 request for specified e-mails. In 10-ORD-110, the Attorney General concluded that the CHFS had failed to satisfy its burden of proof relative to KRE 503 as it was "impossible to determine on the face of the documents, or based upon the evidence submitted," whether counsel for the agency "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. " Id., p. 5. Absent from the agency's response was any indication of "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 CHFS. Id. 5 The instant appeal is distinguishable in this critical respect. Significantly, this office recognized in 10-ORD-110 that "[i]f so, these emails and the information contained in them would likely be protected because they were generated in preparation of a legal defense." (Emphasis added.)
Although this office cannot reveal the content of the subject correspondence, all of the e-mails can be summarized generally as discussions between or among CHFS representatives Angela Hockensmith (Administrative Coordinator, Office of the Secretary), Pat R. Wilson (Commissioner, DCBS), Marcia Morganti (Staff Assistant to the Commissioner of the DCBS), Bruce Linder (Director, Division of Service Regions, DCBS), Jay H. Klein (Appointing Authority and Director of the Division of Employee Management, Office of Human Resource Management), and the agency's legal counsel, Mona S. Womack (Deputy General Counsel, CHFS Office of Legal Services) , regarding how the agency should respond to Ms. Kilgore's complaint and what action by the agency, if any, should ultimately result. Most of the e-mails were generated by Ms. Womack or sent directly to her and some or all of the individuals named above, if not sent exclusively to her as in some cases, and were not only marked "Confidential attorney client communication" beneath of the subject heading, and unquestionably consist of exactly that, but also contained a "Confidentiality Notice." One e-mail from Mr. Klein contains a "Notice of Confidentiality" 6 and was copied to Ms. Womack as part of the ongoing discussion "regarding complaint from the Governor's Office." When viewed as a whole, the e-mails clearly included Ms. Womack for the purpose of ensuring that she was fully informed regarding the origin and nature of the complaint and was therefore in the best position to advise her client (CHFS). In other words, with e-mails that did not originate with Ms. Womack, agency personnel copied her on the e-mail threads "in an effort to facilitate the rendition of professional legal services. " Those communications were "confidential" within the meaning of KRE 503(a)(5) as the CHFS has maintained from the beginning. Ms. Womack did, in fact, give legal advice to all of the named individuals and, ultimately to Ms. Hockensmith specifically, based on the information provided. 7 In so doing, she was "acting in the course and scope of [her] employment." The confidential communications pertained only "to the matter within the course and scope of that employment." In sum, our in camera review of the 43 pages withheld, as previously indicated, confirms that "all correspondence generated after the initial e-mail included counsel for the Cabinet for the purpose obtaining legal advice, " and, in fact, "such legal advice was provided in some of the e-mails. " (Emphasis added). Accordingly, the CHFS properly withheld the responsive e-mails on the basis of KRE 503(b)(1).
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 KilgoreAnne E. Burnham
Footnotes
Footnotes
1 KRS 61.878(1)(l) removes from application of the Act "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
2 This office "has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4. Simply put, "'what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it.'" Id., p. 5, quoting OAG 91-12, p. 5.
3 As the Attorney General has frequently noted, a public agency's "inability to produce records due to their nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9.
4 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
5 In contrast, Mr. Linder's initial response to Ms. Hockensmith in this case specifically indicated that he was relaying a suggestion from Ms. Womack.
6 Although this office has recognized that such notations are not controlling in the context of an open records dispute, this office has also held that such notations will be respected when it is consistent with one or more of the exceptions to disclosure. 97-ORD-127; 10-ORD-039.
7 The assertion that verbal conversations ensued in those cases where Ms. Womack did not have input via e-mail is entirely credible judging by the content of the e-mails.