Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Hazard violated the Kentucky Open Records Act in denying Paralegal Michelle Greene's 1 May 2, 2011, request for, in relevant part, a copy of "[a]ny and all documents and/or footage and/or reports and/or memorandums and/or photographs regarding the fatal accident of July 12, 2010, including but not limited to [those generated by] Stidham Reconstruction and Investigation LLC." 2 City Manager Carlos Combs initially advised Ms. Greene that, in addition to documents which "may exist" but are exempt under KRS 61.878(1)(i) and (j), "[i]t is also possible that documents may exist which would be within the scope of the request but are not subject to disclosure under the Open Records Act which recognizes the continued applicability of attorney work product and various other privileges." 3 Given this vague response and the limited evidence provided on appeal, this office finds the City's belated invocation of KRS 61.878(1) misplaced inasmuch as no civil litigation is currently pending and, thus, neither Ms. Green nor her client is a "party." Although the City might be able to successfully build a case for withholding some or all of the Stidham Reconstruction materials on the basis of the work product doctrine, codified at CR 26.02(3), and/or the attorney-client privilege, codified at KRE 503, both of which are incorporated into the Open Records Act by operation of KRS 61.878(1)(l), to date the City has not done so. With regard to any responsive documents withheld on the bases of KRS 61.878(1)(i) and (j), the City is authorized to withhold those documents until final action is taken, at which point any documents adopted, in part or in whole, as the basis for its final action will forfeit their preliminary status to that extent; however, any responsive photographs must be disclosed unless the City is able to justify the denial on a different statutory basis given that photographs are not drafts, notes, correspondence, recommendations, or memoranda to which either statutory exception applies.
Upon receiving notification of Ms. Greene's appeal from this office, City Attorney Jonathan P. Collins responded on behalf of the City, first advising that "certain materials identified a part of an open and ongoing investigation of the accident while additional documentation was generated at the request of counsel and in anticipation of the very litigation for which Ms. Greene's firm now has been employed." As Mr. Collins explained:
At this time, the City is continuing to investigate this matter to determine whether any executive or administrative action should be undertaken to improve safety and avoid possible recurrences in the future. Certain [C]ity representatives have taken preliminary notes, conducted some witness interviews and taken photographs of the scene. However, no final agency action has taken place in this matter to date. We believe all documentation of the foregoing type gathered to date in this matter should be considered preliminary notes and[/]or memoranda under KRS 61.878(1)(i) and (j) until such time as final agency action has taken place.
Citing City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky. App. 1982) and prior decisions by this office from the 1980s, Mr. Collins noted that "all city personnel involved in investigating the accident are merely fact-finders for the convenience of the City Manager who alone determines what final action is to be taken." Upon his determination as to what action is appropriate, Mr. Collins observed, "some materials are likely to be made available pursuant to the Open Records Act" unless otherwise exempt.
In addressing the Stidham Reconstruction materials, Mr. Collins noted that responsive documents "were prepared in anticipation of litigation at the request of our firm and/or insurance defense counsel charged with investigating and preparing the City's legal defense to a wrongful death suit which is the subject of ongoing negotiation with Ms. Green's firm and which is anticipated to be filed." Mr. Collins further explained:
At the request of our firm, the City retained an expert, Stidham Reconstruction, to begin accident reconstruction work and to conduct certain investigative work upon learning the incident had occurred. While the City Commission is responsible for retaining this expert, the expert has worked for and under the direction of the attorneys who are charged with the defense of the claim. The results of any investigation are to be given directly to that defense counsel by the expert. The City's relationship to the expert is only to compensate him for his services. The City has not received any documentation 4 from the expert which would be responsive to the Open Records request.
Any documents prepared by Stidham Reconstruction and Investigation, LLC are also documents prepared in anticipation of litigation and therefore should be exempt from disclosure under the Open Records Act to a party litigant. As Ms. Greene admitted in her May 24, 2011, appeal letter, her firm represents the decedent in the litigation. Under the litigation exception to the Open Records Act, "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. " KRS 61.878(1) [citations omitted]. . . . Ms. Greene's firm will have access to the information during the course of discovery to the extent permitted under [CR] 26.02.
Because there is no "litigation" or "residual" exception to the Open Records Act that can be invoked by a public agency solely because it is engaged in litigation or, in this case, anticipated litigation, and the City has not made a showing that each of the elements of KRE 503 or CR 26.02 is present with regard to all responsive documents or even identified the documents or groups of documents with adequate specificity, its reliance on KRS 61.878(1) was misplaced. See 01-ORD-146; 03-ORD-042. The City must disclose the records unless it satisfies its burden of proof relative to KRE 503 and/or CR 26.02 in a written response to Ms. Greene immediately. Although the City is correct in asserting that responsive notes, etc. may be withheld on the basis of KRS 61.878(1)(i) and/or (1)(j) until final action is taken, the protection of the "preliminary exceptions" does not extend to photographs.
This office first addresses the applicability of KRS 61.878(1) on the facts presented. Parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests; however, the analysis does not end there. Rather, this office has consistently recognized that the presence of litigation (or anticipated litigation as in this case) does not suspend the duties of a public agency under the Open Records Act in a line of decisions dating back to 1982. 5 Early on, the Attorney General observed that although there is litigation in the background of a request, disposition of which is under review, "the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records." OAG 82-169, p. 2. Elaborating upon this view, the Attorney General subsequently observed that the presence of litigation involving the parties "should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process. " OAG 89-53, p. 4 (emphasis added).
Shortly thereafter, the Attorney General reaffirmed the validity of this position as follows:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein [is] suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3; See also 95-ORD-27; 97-ORD-98. In OAG 89-65, the Attorney General clarified that "in making such observation," this office was not "suggest[ing] that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. . . ." Id., p. 3. In sum, the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, but has not recognized the right of a public agency to deny access to public records on that basis alone.
In Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), the Kentucky Court of Appeals expressly agreed with the cited decisions of the Attorney General opining that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation, " and so held. (Emphasis added.) As the Court observed:
[KRS 61.878(1)] does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, [emphasis added] 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 on excluded records, [original emphasis] to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pretrial discovery.
Citing Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Court reaffirmed the principle that the General Assembly "'clearly intended to grant any member of the public as much right to access to information as the next.'" Quoting the above passages from OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. Stewart, above, at 863. Accordingly, Ms. Greene "stands in relationship to" the City under the Act as any other person. See 00-ORD-97; 06-ORD-208; 07-ORD-180; 08-ORD-151; 10-ORD-142.
This office has previously resolved the question of whether KRS 61.878(1) can be successfully invoked under circumstances nearly identical to those presented. In 96-ORD-263, the Attorney General was asked to determine whether the Lexington-Fayette Urban County Government had properly relied upon KRS 61.878(1) in denying a request for "measurements taken by your Investigating Officers'" at the scene of an accident involving an LGUCG police officer and the requester's client. LFUCG maintained that because the records 'relate[d] to an accident involving an [LFUCG] vehicle which may result in civil litigation, KRS 61.878(1) is applicable." Id., p. 1. This office analyzed prior decisions, including 94-ORD-19 (rejecting public agency's reliance on KRS 61.878(1) to withhold non-discoverable public records from a requester who was not a "party" to litigation, reasoning that the General Assembly had purposely employed the narrower term "party," rather than the word "person"), and 95-ORD-18 (holding that records which did not pertain to litigation between the public agency and the requester could not be withheld on that basis, lest it be employed to swallow the general rule of disclosure) , in holding that KRS 61.878(1) was "inapplicable" given that litigation had not been initiated and, thus, neither the requester nor the client on whose behalf she was acting, "was a 'party' within the meaning of KRS 61.878(1)." Id., p. 2. Likewise, neither Ms. Greene nor the client she represents is currently a "party" within the meaning of KRS 61.878(1) as the litigation is merely "anticipated" and negotiations are ongoing; accordingly, KRS 61.878(1) is inapplicable and the City's blanket denial on that basis violated the Act. A copy of 96-ORD-263 is attached hereto and incorporated by reference.
That said, the courts and this office have recognized that public records may be withheld from disclosure under the work-product doctrine 6 and/or attorney-client privilege 7 in the context of an Open Records dispute if, as in Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), all of the elements of the privileges are present. See 01-ORD-246; 02-ORD-161; 10-ORD-177. 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 [is 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).
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). 8 The City did not cite KRE 503, initially referring generally to "attorney work product and various other privileges," nor has it made a showing that each of these elements can be satisfied as to all of the documents withheld. A "bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . ." 00-ORD-10, p. 11. Nor is there sufficient evidence in the record to support a claim that all of the records withheld on the basis of KRS 61.878(1) represent "the mental impressions, conclusions, opinions, or legal theories of an attorney . . . " CR 26.02(3). The assertion that Ms. Greene's firm "will have access to the information during the course of discovery to the extent permitted under" this Rule does not suffice. "A generic determination that entire categories of records are excluded from the mandatory provisions of the Open Records Act does not satisfy the requirements of the Act." 97-ORD-41, p. 4. The City is authorized to withhold those records that are privileged "only if it can articulate, in writing, the reasons for withholding a record, or group of records, with sufficient particularity and detail to enable the public to assess the propriety of its actions." 05-ORD-136, p. 8; 03-ORD-042; 06-ORD-166. In so holding, this office is not implying that the City cannot successfully build a case for withholding some, if not all, of the Stidham Reconstruction investigative materials on the basis of KRE 503 and/or CR 26.02, only that it has failed to provide sufficiently detailed information to substantiate its position thus far.
The remaining question is whether the City's reliance on KRS 61.878(1)(i) and (j) as the bases for denying access to "preliminary notes, . . . witness interviews and . . . photographs of the scene" was proper. "Despite its manifest intention to enact a disclosure statute," the Kentucky Supreme Court has observed, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994). See Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of these statutory exceptions in various contexts. See City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982); Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See 99-ORD-220; 02-ORD-86; 07-ORD-156. Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69. City of Louisville, above, the seminal case on this issue, and its progeny, including the subsequent line of opinions/ decisions by this office, are controlling on the facts presented. See 07-ORD-158 (copy enclosed), and 97-ORD-168, pp. 2-7. Compare 01-ORD-47 and 01-ORD-83. Inasmuch as the City has apparently not "determined whether any executive or administrative action should be undertaken to improve safety and avoid possible recurrences," and thus "no final agency action has taken place in this matter," it properly relied upon KRS 61.878(1)(i) and (j) to withhold responsive documents, such as interview notes, etc., which retain their preliminary status unless and until adopted as the basis for the final action of the agency. See 08-ORD-098. However, photographs do not fall within the parameters of either statutory exception.
A "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 9 97-ORD-183, p. 4. A "note," on the other hand, is defined as a "brief record, esp. one written down to aid the memory." Id. at 951; 97-ORD-183, p. 4. In the alternative, a "note" is "created as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting." Id. (citations omitted). No credible argument can be made that a photograph is a "draft" or "note" according to the "common and approved uses" of those terms; likewise, a photograph (s) is clearly not "correspondence with private individuals." KRS 61.878(1)(j) is equally inapplicable given that a photograph cannot be properly characterized as a "recommendation" or "memoranda." Accordingly, "disclosure [of the record(s) in dispute] is not contingent upon the occurrence of final agency action. " 99-ORD-220; 06-ORD-135. Rather, "the question of whether final action has been taken by the agency becomes irrelevant . . . [and] we do not reach the second part of the KRS 61.878(1)(i) [or (j)] analysis, requiring final action of a public agency, if the first part of the analysis . . . is not met." 99-ORD-220, p. 5; see also 06-ORD-135, p. 12.
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.
Distributed to:
Michelle GreeneJonathan P. Collins
Footnotes
Footnotes
1 Ms. Greene is the Paralegal for Attorney Andrew J. Horne, of Anderson & Horne, PLLC, the firm which "represent[s] the decedent" according to Ms. Greene.
2 It is unclear from the record whether Ms. Greene was provided with a copy of the accident report, which is accessible to her firm pursuant to KRS 189.635. See 10-ORD-030. If not, the City should provide her with a copy of this responsive document. All of the other documents requested either do not exist, have already been provided in response to a previous request(s), or have now been provided; accordingly, in her May 24 letter of appeal, Ms. Greene focused exclusively on the denial as to "copies of the investigation including but not limited to Stidham Reconstruction and Investigation LLC investigation and materials," emphasizing that she was not interested in the documents which the City advised "may exist" but are "exempt from public inspection under KRS 61.878(1)(i) and (j)."
3 In further advising that the City "has had insufficient time subsequent to the receipt of the request to evaluate the applicability of exemptions available under the Open Records Act to any such material," the City violated the mandatory language of KRS 61.880(1), which expressly requires that an "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The only exception to this general rule is KRS 61.872(5), which the City did not invoke. When construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . " Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). See 10-ORD-179, pp. 3-5, regarding application of KRS 61.880(1), and 11-ORD-035, pp. 3-6, regarding application of KRS 61.872(5).
4 Regardless of where the records at issue may be located, whether those records were "prepared, owned, and used at the instance of" the City is the determinative inquiry. Although defense counsel of the expert may be currently "acting as custodian on behalf of the [City]," it is the "nature and purpose" of those records that determines their status as public records as opposed to their location. 05-ORD-065, p. 7; 04-ORD-125. Public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (n). See 05-ORD-065; 06-ORD-147.
5 Just as a public agency is not relieved of its obligations under KRS 61.880(1) in the presence of litigation, "KRS 61.880(2) requires the Attorney General to give an opinion when so requested as to whether public records are being properly withheld from public inspection by an agency, and whether the agency acted consistent with the Open Records Law." OAG 80-278, p. 3.
6 Records which are the work product of an attorney prepared or collected in anticipation of litigation or when advising a client are not discoverable under CR 26.02 and, therefore, may be withheld under the Open Records Act. This doctrine, authority for which is derived from KRS 447.154, is codified at CR 26.02(3). See 07-ORD-147, pp. 8-10, a copy of which is attached hereto and incorporated by reference, for application of the work product doctrine in the context of an Open Records dispute generally.
7 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.
See 06-ORD-125, pp. 3-10, a copy of which is attached hereto and incorporated by reference, for application of the attorney-client privilege in the context of an Open Records dispute generally.
8 This office has recognized, consistent with KRE 503(b), that the attorney-client privilege "extends to representatives of the attorney when those representatives are employed by the attorney to facilitate the rendition of legal services and the identity of purpose that underlies the privilege." 10-ORD-030, p. 5.
9 Absent a statutory definition, a dictionary may be consulted to ascertain the "common and approved" meaning of a term. See Young v. Commonwealth, 968 S.W.2d 670, 672 (Ky. 1998).