Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Education and Workforce Development Cabinet violated the Kentucky Open Records Act in the disposition of the December 8, 2011, request made by attorney C. Timothy White on behalf of Pamela S. Jarboe, a former employee of the Cabinet's Office of Vocational Rehabilitation, for "access to or alternatively a copy of . . . records relating to Ms. Jarboe's employment with your agency ending." Specifically, Mr. White requested: 1) "[a] copy of the anonymous letter which began a three (3) week investigation [of] Central Office staff working for the [OVR];" 2) "[a]n e-mail dated August 30, 2011, sent by Pamela Jarboe to field staff, noted in her dismissal letter;" 3) "[a]ll correspondence sent from Secretary Joe Meyer and Commissioner Beth Brinly to or from Mark White and Randy Justice in reference to this investigation;" and 4) "[a]ll correspondence [] received from the branch managers across the state who work for the [OVR]." In a separate, fifth request, Mr. White also sought "a copy of any public record relating to Ms. Jarboe or in which she is mentioned by name, as per KRS 61.884 particularly." 1 Based upon the following, and having reviewed the records withheld on the basis of KRS 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in camera, 2 this office partially affirms the Cabinet's disposition of the request.
By letter dated January 11, 2012, 3 James C. Maxson, legal counsel for the Cabinet, agreed to provide Mr. White with documents responsive to Items 1 and 2 of the request, 4 but advised that it did not possess any correspondence responsive to Item 3 as written; accordingly, the Cabinet is unable to produce any such records. 5 With regard to Item 4, Mr. White's request for all correspondence "received from the branch managers . . . ," counsel acknowledged that the Cabinet "does have in its possession," responsive documents; 6 however, "in each instance, the document is protected by attorney-client privilege, and as such, is excepted from operation of" the Act. Quoting the language of KRS 61.878(1)(l), and relying upon KRE 503 and Hahn v. University of Louisville, 80 S.W.3d 771 at 774 (Ky. App. 2001), counsel for the Cabinet asserted that "[a]ll of the records the Cabinet has, which are responsive to your fourth request, constitute privileged, attorney-client communications," which are not subject to disclosure. More specifically, counsel advised that all such records "were solicited directly by the Cabinet's General Counsel, and were sent by the 'branch managers' to the General Counsel, and were made in the course rendering of [sic] legal service to the Cabinet by the General Counsel." Counsel further noted that said records "are noted throughout as being 'confidential, ' 'private,' and 'attorney-client privileged information. " Accordingly, he concluded, the records constitute "attorney-client privileged communications" removed from application of the Act. 7
Citing KRS 61.872(3)(b), the Cabinet advised Mr. White that Item 5 of his request did "not designate a specific type or class of records" that would enable the agency to "at least identify a particular database to search in," nor did he confine the request to "any certain timeframe." Because his request was not "confined in any way," counsel observed, "files related to [Ms. Jarboe], or which mention [Ms. Jarboe], could conceivably be in any of the Cabinet's many offices, agencies and divisions, and be maintained therein in any number of formats and places." Relying upon authorities which predate Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the governing precedent on application of KRS 61.872, the Cabinet denied the request as to Item 5, asserting that Mr. White failed to describe the records with "sufficient specificity" to enable the agency "to identify and retrieve the records" being sought. Ms. Jarboe subsequently initiated this appeal. Upon receiving notification thereof, the Cabinet provided extensive factual background, elaborated upon its earlier arguments regarding KRE 503 and KRS 61.872(3), and "reaffirm[ed] its prior position."
As indicated, the Cabinet provided Ms. Jarboe with documents responsive to items 1 and 2 of the request made by Mr. White on her behalf; accordingly, the related issues are moot per 40 KAR 1:030, Section 6. The Cabinet also denied that any existing records were responsive to Item 3 (see note 5). Our analysis therefore focuses on the propriety of the Cabinet's denial as to any existing documents responsive to the remainder of the request. Having reviewed all of the records withheld on the basis of KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), this office finds the Cabinet's description accurate, in short, and therefore affirms the agency's decision to deny access on that basis. Because Ms. Jarboe/Mr. White did not "precisely describe" the records being sought in response to Item 5, and the records therefore cannot be properly characterized as "readily available" within the agency, she is precluded from obtaining copies in the mail prior to inspection per KRS 61.872(3)(b) ; however, the agency was not entitled to deny the request entirely under existing legal authority. Rather, the Cabinet may require Ms. Jarboe to conduct on-site inspection of any existing nonexempt records which are potentially responsive prior to furnishing copies. See note 7, above, regarding the proper scope of the request.
In 97-ORD-127, this office was asked to determine whether the agency had 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 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 affirming the agency's denial, 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.
As the Cabinet 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. 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). 8
Although this office is precluded from revealing the contents thereof, our in camera review of the investigative file, which consisted almost entirely of the "correspondence received from branch managers across the state who work for [OVR]," confirmed that all responsive documents were "solicited directly by the Cabinet's General Counsel," whether by e-mail or verbally, "were sent by the 'branch managers' to the General Counsel" by either U.S. mail or e-mail in response to his request(s) for information concerning the subject investigation, and were generated in the course of the General Counsel "rendering legal service to the Cabinet when reviewing the document altering allegations." Many of the records were characterized expressly as either "attorney-client privileged information, " or "confidential" and/or "private," as the Cabinet has maintained from the outset. Any responsive documents which did not contain express language to that effect were nevertheless confidential within the meaning of KRE 503(a)(5). In sum, these confidential communications, whether e-mails or attachments thereto including statistical charts, etc., were "made for the purpose of facilitating the process of rendering professional legal services to" the Cabinet. General Counsel Randall Justice was clearly "acting in the course and scope of" his employment therewith and the communications pertained exclusively "to the matter within the course and scope of that employment." Accordingly, the Cabinet properly withheld all documentation responsive to Item 4 of the request on the basis of KRS 61.878(1)(l) and KRE 503. 9 See 10-ORD-125.
The remaining question is whether the Cabinet properly denied the request for a copy of "any public record relating to Ms. Jarboe or in which she is mentioned by name" as lacking adequate specificity. Resolution of this issue turns on the application of KRS 61.872(3), pursuant to which:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. . . .
(Emphasis added).
As the Attorney General has often recognized, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Thus, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5.
In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, 10 KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. 11 In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he/she describes in "definite, specific and unequivocal terms" the records he/she wishes to receive. Id. This Mr. White/Ms. Jarboe has not done. See 08-ORD-147.
Because the Cabinet is located in Frankfort (Franklin County), Kentucky, and the evidence of record suggests that Ms. Jarboe resides in Louisville (Jefferson County), Kentucky, Ms. Jarboe satisfies the first requirement of KRS 61.872(3)(b). However, she is entitled to receive "a copy" of any responsive records by mail only after she "precisely describes" the records, which must be "readily available within the agency." This final requirement "permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, public agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant." 99-ORD-63, p. 3. If the records which the applicant requests to access by receipt of copies via mail "cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them." 99-ORD-63, pp. 3-4. Under these circumstances, "the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours ." Id., p. 4 (emphasis added). See 08-ORD-047 (copy attached and incorporated by reference).
As in 99-ORD-63, 03-ORD-195, 05-ORD-152, and 08-ORD-047, the requester has failed to describe the records that she wishes to access by receipt of copies through the mail in "definite, specific, and unequivocal" terms, and, therefore fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not precisely described, the records cannot accurately be characterized as "readily available" in the relevant sense. 06-ORD-155, p. 10. Accordingly, the Cabinet may require Ms. Jarboe to conduct an on-site inspection of the records prior to furnishing her with copies; however, the Cabinet may not deny the request entirely. 12 06-ORD-155, p. 10.
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:
Pamela S. JarboeJames C. Maxson
Footnotes
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