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 did not violate the Open Records Act in partially denying John Rogers' January 12, 2012, request for copies of "all emails between Denny Nunnelly and Pike County Magistrate Chris Harris in 2011." KACo honored Mr. Rogers' request with the exception of a single document: the attachment to an email from Mr. Nunnelly to Magistrate Harris dated January 11, 2011. In support of this partial denial, KACo relied on the attorney-client privilege and 96-ORD-040, explaining that the attachment "contains privileged communication between [KACo attorney] Richard J. Ornstein and . . . Nunnelly, KACo Executive Director/CEO and then forwarded by Nunnelly to then KACo President Harris."
To facilitate our review of the issue on appeal, and pursuant to KRS 61.880(2)(c), 1 this office requested a copy of the disputed email attachment for in camera inspection on February 27, 2012. 2 Our review of the attachment confirms KACo's position. Because the communications that appear in the margins of the draft document appear to have been made by Mr. Ornstein "for the purpose of facilitating the rendition of professional legal services" to his client, KACo, under conditions that suggest the comments were "not intended to be disclosed to third persons," we believe the attachment falls squarely within the parameters of the attorney-client privilege found at KRE 503. 3 Kentucky's courts deemed that privilege applicable to public records in Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2002). In Hahn , the court recognized that confidential communications exchanged by representatives of the client university made for the purpose of providing legal services were shielded from disclosure by the attorney-client privilege. (Copy enclosed) ; compare Commonwealth v. Scorsone, 251 S.W.3d 328 (Ky. App. 2008) (attorney billing statements prepared by non-government lawyers representing public agencies not protected by attorney-client privilege). Numerous open records decisions issued by this office echo the courts' position.
Assuming, for the sake of argument, that the underlying document on which agency counsel's comments appear does not enjoy protection under KRE 503, it is apparent that the document constitutes a preliminary draft within the meaning of KRS 61.878(1)(i) 4 as interpreted in Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995) (copy enclosed) ; see also, 98-ORD-140; 00-ORD-197; and 06-ORD-254. As in Jones , that document was "a draft of what may or may not" have been finalized and was intended "for inter or intra office use" until finalized. Jones at 10. It represented one of the many "tools which a public employee or officer use[d] in hammering out official action within the function of his office." Id. at 8.
Although KACo's partial denial of Mr. Rogers' request was substantively correct, its response was procedurally deficient insofar as it did not "include a statement of specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1). 5 KACo's January 20, 2012, denial was devoid of reference to KRE 503 or KRS 61.878(1)(i). KACo described the circumstances surrounding transmission of the email from agency counsel to agency president, but it did not provide "particular and detailed" information concerning the application of these exceptions to the record withheld. Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Given the assignment of the burden of proof in sustaining KACo's partial denial to KACo, it is incumbent on KACo to provide more than a "limited and perfunctory response." KRS 61.880(2)(c). We affirm KACo's partial denial of Mr. Rogers' request based on our in camera review of the document, but remind the agency that the requirements found at KRS 61.880(1) "are not mere formalities, but are essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
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:
John RogersRichard J. Ornstein
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
2 On several occasions the Attorney General has recognized that an agency does not waive the attorney-client privilege by disclosing the privileged records to this office for in camera inspection since that disclosure is itself privileged. See, e.g., 04-ORD-149, p. 7, note 2.
3 KRE 503 states the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client[.]
4 KRS 61.878(1)(i) excludes from public inspection:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
5 KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.)