10-ORD-142 | KOGC

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 Kentucky Association of Counties (KACo) violated the Open Records Act in denying Davon Burke's April 10, 2010, request for copies of "all documentation concerning Claim No. 0010157667001 . . . [and] any financial amounts paid in Claim No. 0010157667001." Because the Attorney General previously determined that KACo is a public agency for open records purposes pursuant to KRS 61.870(1)(h), 1 and because KACo has not presented proof that it no longer derives 25% or more of the funds it expends in the Commonwealth of Kentucky from state or local authority funds, we find that it is accountable to the public through its records to the extent those records "relate to functions, activities, programs, or operations funded by state or local authority. " 2 KRS 61.870(2). Additionally, we find that because Kentucky courts have declared that "an open records request should be evaluated independently of whether or not the requester is a party or a potential party to litigation," 3 KACo cannot hide behind a protective order prohibiting further discovery in consolidated actions filed by Mr. Burke that are pending in the Campbell Circuit Court to avoid its duties under the Open Records Act. Nevertheless, we find that KACo may assess Mr. Burke reasonable copying fees not to exceed ten cents per page, plus postage, before mailing him copies of the requested records.

By letter dated April 22, 2010, 4 KACo denied Mr. Burke's request for records maintained by the agency that relate to two civil actions he filed against the Campbell County Jailer and deputy jailers for alleged mistreatment. KACo argued that it was not a public agency, that the Campbell County Circuit Court has ordered no further discovery in his consolidated cases, that "Kentucky case law prohibits a party involved in active litigation to bypass the Kentucky Rules of Civil Procedure relating to discovery requests via the Open Records Law," that his request was "vague, ambiguous, and unclear," and that the requested records are "not discoverable. " In supplemental correspondence, KACo explained that it had complied with "at least seven" of Mr. Burke's discovery requests, providing him with "numerous documents," and thereafter obtained the referenced protective order. KACo cited Kentucky Lottery Corporation v. Stewart, above, "as authority for its denial" of Mr. Burke's request, observing that he "is doing nothing more than using the Open Records Act as a litigant in pending litigation for discovery purposes."

In response to this office's KRS 61.880(2)(c) request for an explanation of how Kentucky Lottery Corporation, above, supports its position, KACo argued that although the court "states that a party to the litigation has the same right to disclosure as a non-party . . . [and] that Open Records Requests should be evaluated independently of whether or not the requesting party is a party or potential party to the litigation[, the court] also recognized as do Kentucky Revised Statutes, that there are limitations and that 'no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing Pre-trial discovery. KRS 61.878(1).'" For this reason, KACo maintained that Kentucky Lottery Corporation, above, authorized it to deny his request and precluded Mr. Burke from "sidestep[ping] limitations placed upon him in pending litigation. " In sum, KACo maintains that Mr. Burke's request for all records relating to Claim No. 0010157667001 "does not distinguish between information that would be available to the general public versus that information which contains attorney-client communications, work product, and the like," and that "[u]nder no circumstances would Burke or any other individual of the general public be entitled to discover that information in the face of pending litigation. " We find KACo's argument that under the rule announced in Kentucky Lottery Corporation, above, protective orders entered by the Campbell County Circuit Court, operating in tandem with KRS 61.878(1), entirely preclude Mr. Burke's right of access to nonexempt public records under the Open Records Act.

To begin, KACo offers no proof that the percentage of funds it expends in the Commonwealth that are derived from state or local authority funds has changed since this office issued its decisions in 1993. An unsupported assertion that KACo "is not a 'public agency' " is not sufficient to alter our position. We must, therefore, conclude that 93-ORD-96 and 93-ORD-101 are controlling.

KACo's argument that Kentucky Lottery Corporation, above, and KRS 61.878(1), preempt Mr. Burke's right of access to nonexempt public records under the Open Records Act because the circuit court has terminated discovery is equally unconvincing. Indeed, Kentucky Lottery Corporation, above, controverts KACo's argument. The court rejected the Attorney General's erroneous conclusion that the Lottery properly withheld records that were available through discovery in a pending action, agreeing, as noted:

with those Attorney General's Opinions which opine that an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation.

Kentucky Lottery Corporation at 864. The court quoted extensively from opinions of this office:

The Attorney General's Office has previously taken the position that a party to litigation has the same rights to disclosure as a nonparty.

In a subsequent decision, the Attorney General addressed not only contemplated litigation, but a request by parties in litigation and opined:

Kentucky Lottery Corporation at 863, 864, citing OAG 82-169, p. 2 and OAG 89-65, p. 3. In interpreting KRS 61.878(1), 5 the court concluded:

That statute does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order. The gist of this wording is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records, to those records that could be authorized through a court order on a request for discovery under the Rule of Civil Procedure governing pretrial discovery. Any other interpretation would allow a nonparty (like the press, which also made a request in this case) to obtain records not exempted, while a party before an administrative agency could not obtain these same nonexempted records because administrative agencies are generally not subject to pretrial discovery. This would bring about an absurd or unreasonable result which cannot be fostered by the courts. "[T]he Legislature clearly intended to grant any member of the public as much right to access to information as the next."

Kentucky Lottery Corporation at 863, citing Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994) (footnotes omitted). Extending this holding to the appeal before us, any other interpretation would allow a nonparty to obtain records not exempted, while Mr. Burke could not obtain the same records because the court has terminated discovery.

Mr. Burke's status as an litigant, or for that matter, as an inmate, does not alter his right of access to information 6 save for that information he cannot obtain "on a request for discovery under the Rules of Civil Procedure governing pretrial discovery" as opposed to a request for discovery submitted in defiance of a protective order. While Mr. Burke runs the risk of offending the court by submitting his open records request, neither KACo's nor this office's statutory duties "are suspended in the presence of litigation." OAG 89-65, p. 3, cited in Kentucky Lottery Corporation at 864. KACo must review all records responsive to his request and segregate those which qualify under one or more statutory exceptions, generally identifying the records withheld in a written response in which it cites the applicable exception and how it applies to the records withheld. KRS 61.880(1). Mr. Burke is otherwise entitled to receive copies of all nonexempt records maintained by KACo that relate to Claim No. 0010157667001 upon prepayment of reasonable reproduction charges not to exceed ten cents per page and postage charges.

Clearly, records protected by the attorney-client privilege or the work product doctrine are not accessible under the Open Records Act pursuant to KRE 503 and CR 26.02, incorporated into the Act by KRS 61.878(1)(l). 7 Hahn v. University of Louisville, 80 S.W.3d 771, 773 (Ky. App. 2001) (recognizing that "the protections afforded by the attorney-client privilege have been recognized and incorporated into [the Open Records Act] by the Kentucky General Assembly"). It is by no means clear that this protection extends to " financial amounts paid in Claim No. 0010157667001." Emphasis added.) KACo acknowledges the existence of records reflecting its payment of attorney's fees, court costs, and case expenses, "but asserts that Mr. Burke has not specifically requested the records and that the records are, in any event, not discoverable "under any scenario in light of the Kentucky Rules of Civil Procedure and supporting case law relating to pre-trial discovery. " We disagree.

In Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328 (Ky. App. 2008), Kentucky's courts recognized that "[t]he attorney-client privilege does not apply to all communications between an attorney and a client," and rejected the agency's blanket redaction of all descriptive portions of the nonexempt billing records. Scorsone at 329. The court gave "great weight" to the Attorney General's open records decisions determining 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." Id. Inasmuch as the requested financial documentation "relates to [KACo's] functions, activities, programs, or operations funded by state or local authority, " 8 the requested financial documentation concerning any amounts paid in Claim No. 0010157667001, constitutes public record. To the extent it reveals only the general nature of services rendered, and no substantive matters protected by the privilege, it must be disclosed. Again, it is incumbent on KACo to identify, in writing and in general terms, the protected records withheld, cite the exception authorizing the decision to withhold, and explain the application of the exception(s) to the records withheld. KRS 61.880(1).

In closing, we are obliged to comment on KACo's apparent belief that an open records requester may only request nonexempt records by specific identifiers and that a request for all records is deficient. In essence, KACo suggests that it is only required to honor requests for records that the requester correctly assumes are open, and that all other requests are vague and ambiguous. Kentucky's Supreme Court disabused public agencies of this notion in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). In Chestnut the Court rejected various claims advanced by the Department of Corrections relative to the specificity of an inmate's request and the burden associated with production. With reference to the specificity of the request for "[a]n entire copy of [his] inmate file," the Court observed:

[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected." We must interpret statutes as written, without adding any language to the statute, even in open records cases. And it is obvious that the General Assembly chose only to require the record to be described. It did not add any modifiers like particularly described.

. . .

Because we lack the power to rewrite the open records act, we cannot add a particularity requirement where none exists. Chestnut described the records he wanted to see - the content of his own inmate file. It appears obvious to us the Chestnut's request was adequate for a reasonable person to ascertain the nature and scope of Chestnut's open records request. He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen.

Chestnut, above at 661 (footnotes omitted but some emphasis added). It defies logic to suggest that KACo could not ascertain the nature and scope of Mr. Burke's request based on the description provided. This view finds support in the fact that KACo characterized the records responsive to the request as "not discoverable. " Surely KACo would not venture such a characterization unless it knew of what records it spoke. 9

Turning to the agency's argument that complying with the request would impose an undue burden, the Court conceded that "the task of determining what materials are properly subject to an inmate's open records request is tedious and time-consuming work," but concluded:

[T]hat does not mean that complying with Chestnut's open records request automatically constitutes an unreasonable burden. Regardless of the specificity of the open records request, the DOC personnel are still obligated to sift through any requested materials in order to determine which documents (or portions of a document) must be redacted . . . .

. . .

[T]he 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.

. . .

Moreover, the fact that many inmates' files, such as Chestnut's, are voluminous does not mean that it would necessarily be an unreasonable burden for a state agency such as the DOC to comply with an otherwise valid open records request. A record's length, standing alone, is an insufficient reason to exempt it from open records disclosure.

Chestnut at pp. 664, 665. Having provided Mr. Burke with some "discoverable documents which he has requested . . . through the judicial discovery process," the burden on KACo should be minimized rather than compounded. We urge KACo to bear these principles in mind as July 15, 2010, and the effective date of SB 88, approaches.

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.

Davon Burke, # 162305Thomas R. Nienaber

Footnotes

Footnotes

1 See 93-ORD-96 and 93-ORD-101.

2 SB 88 resolves any lingering doubt as to KACo's status by defining a "public entity" as "any organization that represents a statewide association of local governments where the majority of its governing body is composed of mayors, county judge/executives, or other local elected officials, and whose membership includes . . . counties[.]" That statute will take effect on July 15, 2010.

3 Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001).