Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Education and Workforce Development Cabinet violated the Kentucky Open Records Act in partially denying Autumn C. Barber's June 11, 2010, request for various documents relating to a grievance that she filed alleging that certain improprieties occurred in the hiring process for the Assistant General Counsel position with the Unemployment Insurance Commission, including gender discrimination. Ms. Barber, a Cabinet employee and unsuccessful applicant for the position, requested nine categories of records, but only Items 6 and 7, a copy of the "investigative report submitted to Commissioner Beth Brinly and investigative notes complied by investigator Arthur Lucas, Personnel Cabinet, . . . " and a copy of "written and oral responses to questions propounded by" Mr. Lucas to named individuals, respectively, are still in dispute. 1 Because Ms. Barber is a public agency employee, and she filed the grievance, as opposed to being the subject of the resulting investigation, KRS 61.878(3) authorizes her to access the investigation records which relate 2 to her notwithstanding their preliminary character; accordingly, the Cabinet's reliance on KRS 61.878(1)(i) and (j) was misplaced. Having confirmed with the Personnel Cabinet, Office of Diversity and Equality, that investigators from that Office serve as independent and neutral fact-finders upon a request by a public agency such as the Cabinet, and not as its "agent," "consultant, " or "representative," this office finds that the Cabinet's reliance on CR 26.02(3) and KRE 503(b) was equally improper.
In her June 11 request, Ms. Barber, in relevant part, requested:
6. Copy of investigative report submitted to Commissioner Beth Brinly and investigative notes comp[il]ed by investigator Arthur Lucas, Personnel Cabinet, in his investigation of grievance filed by Autumn Barber. Response to Ms. Barber by Commissioner Brinly [was] due 3/18/10. Mr. Lucas' investigation has therefore concluded.
7. Copy of written and oral responses to questions propounded by investigator Arthur Lucas to all persons interviewed by Arthur Lucas during investigation of Autumn Barber's grievance, including [seven named individuals], unknown applicants that were interviewed for the Attorney Manager position[, and] other unknown persons interviewed by Mr. Lucas.
In a timely written response, attorney James C. Maxson, Office of Legal and Legislative Services, denied, in relevant part, Item 6 as follows:
On February 26, 2010, you filed a Grievance alleging that Greg Higgins had been hired for the Assistant General Counsel position as a result of gender discrimination. You openly stated from the outset that you would file an appeal against the [Cabinet] with the Personnel Board. Because of his experience with such matters, the Cabinet retained the services of Arthur Lucas, the State's EEO Coordinator, to investigate the allegations related to the hiring of Mr. Higgins, on the Cabinet's behalf, as an agent of the Cabinet. Any documents created by Mr. Lucas for the Cabinet during that investigation were confidential and were created for the Cabinet by its agent, in anticipation of litigation.
Having quoted the language of KRS 61.878(1)(i) and (j), Mr. Maxson argued that "[a]ny materials produced by Mr. Lucas during the course of the investigation" fall within the parameters of these statutory exceptions, and thus "are expressly exempt from evidence by KRS 13B.090(3)." 3
Mr. Maxson acknowledged that KRS 61.878(3) "does generally allow employee's [sic] access to records related to them" but asserted that it does not apply in this instance, "because the Cabinet's investigation related entirely to the hiring [of] Greg Higgins." He advised Ms. Barber that she was "not the subject of the investigation, and the investigation did not relate to you, except in so far [sic] as you were one of the unsuccessful applicant's [sic] for the position and it was your allegations that prompted the investigation." For that reason, he continued, "KRS 61.878(3) is inapplicable, because the materials being requested do not relate to you. Furthermore, even those [sic] these documents do not relate to you, the Kentucky Court of Appeals has clarified that employees do not have an unqualified right to any documents which may relate to them," in Hahn v. University of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). Quoting the language of KRS 61.878(1) 4 and CR 26.02(3), Mr. Maxson maintained that all of the materials responsive to Item 6 "were prepared by the Cabinet's agent in anticipation of litigation, and thus, would not be discoverable under CR 26 absent a showing of substantial need and an inability to obtain the substantial equivalent without undue hardship." The Cabinet denied Item 7 "for all of the reasons previously stated in denying" Item 6.
By letter dated June 25, 2010, Ms. Barber initiated this appeal, challenging the Cabinet's assertion that the records were prepared in anticipation of litigation. According to Ms. Barber, that statement is "patently false as many of the requested documents were assembled and created during the investigation of a grievance" that she filed which, in turn, prompted the investigation into the matter and pertain directly to her. Upon receiving notification of Ms. Barber's appeal from this office, Mr. Maxson essentially reiterated his earlier arguments on behalf of the Cabinet, emphasizing that the Cabinet "had no choice but to proceed with the understanding that litigation was forthcoming, which proved to be true," but still "reviewed the all[e]gations in an unbiased way" and "conducted a full investigation of the matter." In so doing, the Cabinet "enlisted the help of" Mr. Lucas "to investigate on the Cabinet's behalf, as an agent of the Cabinet," and thus any documents created by him "for the Cabinet during that investigation into the hiring were preliminary, confidential, privileged, work product, " and exempt from the Open Records Act. Mr. Maxson noted that none of the investigative materials were incorporated into the final action of the agency.
Mr. Maxson cited the same reasons that he initially provided in support of his position that KRS 61.878(3) is not applicable in this instance. Again quoting the language of CR 26.02(3), 5 Mr. Maxson reiterated his view that materials responsive to Items 6 and 7 "were prepared by the Cabinet's agent and/or consultant in anticipation of litigation. " In his view, Newsome v. Lowe, 699 S.W.2d 748, 751-752 (Ky. App. 1985)(recognizing that "a prelitigation consultant would have a qualified privilege status the same as trial counsel's partners, associates, paralegals, and secretaries" because "if full discovery was permitted, the rule becomes frustrated . . . "), validates the Cabinet's position. Because Ms. Barber has not made the requisite showing of "substantial need," Mr. Maxson concluded, she "is not entitled to receive a copy of the work product created for the Cabinet, by its agent/consultant, in anticipation of litigation. Furthermore, the investigator's final report was given only to the undersigned in his capacity as legal counsel for the Cabinet . . . and these materials are also protected by attorney-client privilege."
In reply to Mr. Maxson's July 14 letter, Mr. Corns advised that his client preferred to keep "all document production requests in one forum before the Personnel Board. However, Counsel for the Cabinet has confused continuously the law relating to discovery with the Open Records Act [.]" According to Mr. Corns, the relevant facts are that Ms. Barber filed her grievance on February 26, 2010, the Cabinet subsequently "obtained EEO Coordinator Lucas to investigate the grievance, " Mr. Lucas is not an attorney, his investigation and report have been completed, and "Commissioner Brinley [sic] relied on that investigation and report to answer the grievance. " The investigation was undertaken to determine if the grievance was valid, Mr. Corns explained, and if it was conducted "in anticipation of litigation, there was no bona fide good faith investigation. In that case, the result of the investigation was already pre-determined," and his client has a right, in his view, to know that. Mr. Corns also correctly observed that Hahn is not dispositive, as in that case " all of the documents excluded were prepared by the [U]niversity's legal counsel and were attorney work product. The Lucas report is not attorney work product. " 6
Because Mr. Lucas is not an attorney nor did he serve as the agent, representative or consultant of the Cabinet, or act on its behalf, his investigative materials do not fall within the parameters of CR 26.02(3) or KRE 503(b), and the Cabinet's reliance on both was misplaced. The Cabinet's position relative to KRS 61.878(3) is also contrary to existing law. Based upon the following, this office concludes that the Cabinet violated the Act in withholding the records identified at Items 6 and 7 of Ms. Barber's request.
Resolution of this appeal turns partially upon the language of KRS 61.878(3), pursuant to which:
No exemption of 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 and records 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 copy any examination or documents relating to ongoing criminal or administrative investigations by an agency.
In construing this provision, the Attorney General has long recognized:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. . . . When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
95-ORD-97, p. 4; 98-ORD-114. 7
As a public agency employee, Ms. Barber is endowed with a broader right of access to records relating to her than the general public has to those same records. Even records which would otherwise be shielded from disclosure under KRS 61.878(1)(i) or KRS 61.878(1)(j), as to third persons, must be made available to Ms. Barber if those records relate to her unless one or more of the specified exceptions apply. In the absence of an ongoing criminal or administrative investigation, KRS 61.878(1)(l), which the Cabinet did not cite, but which incorporates CR 26.02(3)(the work product doctrine) and KRE 503(b)(attorney-client privilege) upon which it relied, is the only exception which is even potentially applicable. As discussed later, the Cabinet is unable to satisfy a threshold requirement for invocation of these privileges.
Although the right of access granted to public agency employees by KRS 61.878(3) overrides the remaining exceptions codified at KRS 61.878(1) when the employee requests access to records that relate to her, the concluding sentence of KRS 61.878(3) suspends this right while the employee is the subject of an ongoing investigation. 98-ORD-114; 93-ORD-74. Said another way, KRS 61.878(3) generally requires a public agency to release otherwise exempt records to a public agency employee; however, "where the employee is under investigation and the documents relate to that investigation, the request can properly be denied." 95-ORD-97, p. 2(emphasis added). In contrast, the Attorney General has recognized "that a public agency employee is entitled to review records relating to administrative investigations which he or she initiated. " Id. (Emphasis added.) Here, Ms. Barber is not under investigation; rather, the investigation resulted from the grievance that she filed. In 93-ORD-19, this office held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer during the course of investigating a formal complaint filed by the employee though the notes were otherwise protected under KRS 61.878(1)(i). See 93-ORD-24 (reaffirming 93-ORD-19); 95-ORD-97.
Because Ms. Lewis initiated the subject investigation by filing her grievance, as opposed to being the subject of the investigation, the analysis contained in 95-ORD-97 (also distinguishing between "investigation," as used in KRS 61.878(3), and "adjudication," as used in KRS 61.878(1)(h)) is controlling; a copy of that decision is attached hereto and incorporated by reference. Ms. Barber, a public agency employee, is entitled to inspect or copy those preliminary documents that were generated in the course of investigating her grievance, which do "relate to" her within the meaning of KRS 61.878(3) notwithstanding the Cabinet's assertion to the contrary. To hold otherwise would contravene the mandatory language of this provision as well as prior decisions of this office, including 97-ORD-87 and 95-ORD-97. The remaining question is whether the records in dispute can be properly withheld on the basis of the work product doctrine, codified at CR 26.02(3), and/or the attorney-client privilege, 8 codified at KRE 503(b), both of which are incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
Both the courts and this office have recognized that public records may be withheld from disclosure under the work-product doctrine and/or attorney-client privilege 9 in the context of an Open Records dispute if, as in Hahn, above, all of the elements of the privileges are present. See Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001); 01-ORD-246; 02-ORD-161. These authorities further validate the position that both of these privileges, when successfully invoked, override KRS 61.878(3). However, this office has also recognized that a public agency "'cannot withhold every document that relates to a particular matter under KRS 61.878(1)[(l)] and the attorney-client [privilege or] work product doctrine simply because it is represented by an attorney in the matter.'" 01-ORD-246, p. 17, quoting OAG 91-109. Similarly, in 03-ORD-015 this office reminded the agency that there is no "litigation" or "residual" exception that can be invoked by a public agency solely because it is engaged in litigation, or threatened litigation, emphasizing that the attorney-client privilege and work product doctrine could not "be invoked absent a showing that each of the elements of KRE 503 or CR 26.02 are present[.]" Id., p. 6. 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).
Pursuant to KRS 18A.030, the Secretary of the Personnel Cabinet "shall, with the aid of his staff," among other things, "[m]ake investigations concerning all matters touching the enforcement and effect of the provisions of KRS 18A.005 to 18A.200 and administrative regulations prescribed thereunder." In this case, as Mr. Maxson explained, his agency contacted the Personnel Cabinet's Office of Diversity and Equality after Ms. Barber filed her grievance to request, "[b]ecause of his experience with such matters," that Executive Director Arthur Lucas "investigate the allegations related to the hiring of Mr. Higgins." Because the Education and Workforce Development Cabinet repeatedly emphasized that Mr. Lucas acted "on the Cabinet's behalf, as an agent of the Cabinet," also referring to him as its "consultant" and "representative," but cited no supporting authority nor did our independent research locate any, this office contacted the Office of Diversity and Equality, and spoke with Mr. Lucas directly, to gain a better understanding of his role in such investigations and the nature of the relationship that is formed. Mr. Lucas clarified that his actual function as investigator is that of a neutral fact-finder. He gathers information, conducts interviews, etc. but remains objective during the process and the agency makes the final determination. In short, Mr. Lucas confirmed that he does not act "on behalf of" the requesting agency nor can he be properly characterized as its "agent," "consultant, " or "representative" in the relevant or legal sense; accordingly, the Cabinet's reliance on CR 26.02(3) and KRE 503(b) is based on a flawed premise.
CR 26.02(3) only applies to materials "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent )." 10 (Emphasis added.) Contrary to the Cabinet's belief, Mr. Lucas was not acting in any of the capacities named above while conducting his investigation of Ms. Barber's grievance. Similarly, KRE 503(b) only applies when a public agency can establish that all three of the following elements are present: 1) relationship of attorney and client; 2) communication by or to the client relating to the subject matter upon which professional advice is sought; and 3) the confidentiality of the expression for which the protection is claimed. 97-ORD-127, p. 1(citation omitted). Although it extends to confidential communications made to facilitate the rendition of professional legal services between the client or its "representative" and the client's lawyer or his "representative," Mr. Lucas was neither the Cabinet's representative (defined at KRE 503(2) and (4), respectively) nor its lawyer as he confirmed. The communications at issue thus cannot possibly fall within KRE 503(b)(1)-(5). Because the Cabinet is unable to satisfy this element as required to successfully invoke CR 26.02(3) and KRE 503(b), further discussion is unwarranted.
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.
Autumn C. BarberJames C. Maxson
Footnotes
Footnotes
1 Ms. Barber filed a nearly identical request for discovery with the Personnel Board prior to submitting the request which is the subject of this appeal. On July 16, 2010, Personnel Board Hearing Officer Boyce A. Crocker issued an Interim Order/Order Regarding Discovery sustaining many of Ms. Barber's discovery requests; accordingly, Ms. Barber's legal counsel, Ray Corns, forwarded a copy of the Order to the undersigned counsel, advising that any related issues were resolved. Mr. Corns further advised that his client wished to proceed with her appeal but only as to Items 6 and 7. Our analysis proceeds accordingly.
2 In 05-ORD-181, this office interpreted "relates," for purposes ofKRS 61.878(3), as follows:
The term "relate" is defined as having "connection, relation, or reference," The American Heritage College Dictionary, 1173 (4th ed.), and does not always require a specific reference in the form of a name. To the extent that the contents of the [records] relate to the Sheriff, his office, and his employees, he and his employees are entitled to inspect and obtain a copy of it. The mandatory stricture found at KRS 61.878(3) overrides any otherwise applicable exception, including KRS 61.878(j), to compel disclosure of the letter and supporting documentation.
Id., p. 7.
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3 In relevant part,KRS 13B.080(3) provides:
Nothing in this section shall be construed as giving a party the right to examine or copy the personal notes, observations, or conclusions of the agency staff, unless exculpatory in nature, nor shall it be construed as allowing access to the work product of counsel for the agency.
Mr. Lucas is neither "agency staff" nor "counsel for the agency." This provision also specifically provides that "[c]onditions for examining and copying agency records, fees to be charged, and other matters pertaining to access to these records shall be governed by KRS 61.870 to 61.884 [the Open Records Act] ." Further discussion of KRS 13B.080(3) is therefore unwarranted.
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4 KRS 61.878(1) identifies the public records which are excluded from application of the Open Records Act "and shall be subject to inspection only upon order of a court of competent jurisdiction, except 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 pretrial discovery [.]" Although this provision expressly prohibits a party to litigation from obtaining through the Open Records Act records which he or she could not obtain through pretrial discovery, it does not prohibit a party to litigation or a third party from obtaining otherwise nonexempt public records in this manner. See Department of Corrections v. Courier-Journal and Louisville Times Co., 914 S.W.2d 349 (Ky. App. 1996).
This office has consistently recognized that application of the rules contained in the Open Records Act is "not suspended in the presence of litigation" as requests made thereunder are "founded upon a statutory basis independent of the rules of discovery. " OAG 89-65, p. 3; 04-ORD-208. In Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), the Kentucky Court of Appeals expressly agreed with our line of decisions in holding that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation." See 04-ORD-208, pp. 6-9.
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5 In relevant part, CR 26.02(3) provides:
(a) . . . a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent ) only upon a showing that the party seeking discovery has a substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
(Emphasis added.)
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6 By letter dated August 12, 2010, the undersigned counsel asked Mr. Maxson to provide this office "with unredacted copies of any existing records which are responsive to Items 2 and 7 of Ms. Barber's request for purposes of in camera review." Mr. Maxson complied, as requested, by August 23, 2010, but did not distinguish which records were being withheld on which basis. The content of the records did not ultimately prove to be dispositive of the legal questions presented; however, this office reminds the Cabinet that KRS 61.880(1) requires public agencies to provide " detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 09-ORD-086, pp. 3-5. The Cabinet failed to satisfy its burden of proof under KRS 61.880(2)(c) even if the arguments raised were not otherwise unsuccessful on the facts presented.
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7 Although KRS 61.878(3) does not contain a specific reference to former public employees, the Attorney General has recognized that its expansive wording, coupled with KRS 61.871 and the rule of statutory construction codified at KRS 446.080(1) compel this result. 97-ORD-87, p. 3.
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8 See, for example, 10-ORD-125 for application of KRE 503(b) generally, and 07-ORD-147 for application of CR 26.02(3) generally.
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9 Theattorney-client privilege extends to confidential communications:
(1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer.
(2) Between the lawyer and a representative of the lawyer;
(3) 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;
(4) Between representatives of the client or between the client and a representative of the client; or
(5) Among lawyers and their representatives representing the same client.
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10 The Cabinet does not suggest that Mr. Lucas was a surety, indemnitor, or insurer nor would those terms apply.
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