Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This open records appeal having been presented to the Office of the Attorney General, and the Attorney General being sufficiently advised, we find that University Medical Center, Inc., is a public agency as defined in KRS 61.878(1)(j). UMC's records are therefore public records as defined in KRS 61.870(2) and subject to public inspection unless statutorily excluded by one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Because UMC failed to meet its statutorily assigned burden of proving that KRS 61.878(1)(i), (j), (l), and KRE 503 authorized denial of WHAS-TV reporter Adam Walser's July 20, 2011, request for records relating to anti-kickback or Starks violations, we find that UMC violated the Act. 11-ORD-157 is dispositive of the question of UMC's status under the Open Records Act. We adopt the reasoning of that open records decision. KRS 61.880(2)(c) assigns the burden of proof in sustaining the denial of Mr. Walser's request to UMC, and UMC offers little in the way of proof to support its reliance on KRS 61.878(1)(i), (j), (l), and KRE 503. 1
In its original response to Mr. Walser's request, UMC tersely asserted that, "as a private 501-C1 organization," it was "not subject to Kentucky's Open Records Law." In supplemental correspondence directed to this office after Mr. Walser initiated this appeal, UMC elaborated on this position and argued, in the alternative, that it "maintains certain preliminary documents regarding a currently pending investigation." UMC observed:
A portion of them are made confidential by Kentucky Rule of Evidence 503, through KRS 61.878(1)(l), because they include a memorandum prepared by legal counsel to UMC regarding a currently pending investigation and documents prepared by UMC at the direction of its legal counsel regarding the same matter.
UMC concluded that the "privileged documents and additional preliminary internal correspondence" are shielded from disclosure by KRS 61.878(1)(i) and (j) "because they contain preliminary analyses and recommendations regarding a currently pending matter with respect to which UMC has not taken final action. " In the absence of "particular and detailed information" 2 supporting this position, we cannot affirm UMC's denial of Mr. Walser's request.
"Where the custodian of requested records believes that those records are not subject to disclosure, " Kentucky's Court of Appeals has opined, KRS 61.880(1) directs as follows:
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. (Emphasis added.)
Edmondson v. Alig at 857. In construing KRS 61.880(1), the court declared:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response . . . [does not] even remotely comp[ly] with the requirements of the Act--much less . . . amount[] to substantial compliance.
Id. This provision operates in para materia with KRS 61.880(2)(c) to require public agencies resisting disclosure of public records to offer more than a bare claim that the exception relied upon supports denial.
UMC offers little more than a bare claim that KRS 61.878(1)(i), (j), (l), and KRE 503 support denial of Mr. Walser's request. It is not self-evident that all or any part of the disputed records qualify for the attorney-client privilege. Kentucky's courts have recognized:
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); 98-ORD-140; 09-ORD-095; 10-ORD-110. It was incumbent on UMC to offer a particularized demonstration that the records withheld under KRE 503 were privileged. UMC did not do so.
Nor did UMC offer a particularized explanation how the disputed records are protected from disclosure by KRS 61.878(1)(i) and (j). UMC advises that "preliminary internal correspondence" was withheld "because they contain preliminary analyses and recommendation regarding a currently pending matter with respect to which UMC has not taken final action. " The agency does not advise who is under investigation, who is conducting the investigation, where the investigation currently stands, and what constitutes final agency action.
University of Kentucky v. Courier-Journal, 830 S.W.2d 373 (Ky. 1992). In the absence of proof supporting its claim, we cannot conclude that the records in dispute are protected from disclosure by KRS 61.878(1)(i) and (j).
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:
Adam WalserDavid McArthurJennifer L. ElliottTom Halbleib
Footnotes
Footnotes
1 We do not address UMC's argument that the Attorney General lacks statutory authority to consider Mr. Walser's claim. We rejected this claim in 11-ORD-157 and adopt the reasoning found in that decision.
2 Edmondson v. Alig, 926 S.W.2d 856, 857 (Ky. App. 1996).