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 Kentucky Higher Education Student Loan Corporation violated the Kentucky Open Records Act in denying Jessie A. Mudd's September 8, 2011, request for seven categories 1 of "Written correspondence (including e-mails) " to and from specified KHESLC employees and/or staff members of "DCS/Performant" and South Carolina Student Loan Corporation from April 17, 2011, to August 30, 2011. By letter dated October 28, 2011, 2 General Counsel Diana L. Barber advised Mr. Mudd that "[a]s concerns certain written correspondence (including emails) , to the extent such documents exist, most of them are in the nature of preliminary internal notes and are not considered as official records of KHESLC." Quoting the language of KRS 61.878(1)(i) and (j), Ms. Barber further observed that "[s]uch unofficial, informal notes are exempt from disclosure under the Open Records Act. " Because of the potential for litigation which exists between KHESLC and Mr. Mudd's client, Core Recoveries, LLC, Ms. Barber denied access to "other records" on the basis of KRS 61.878(1) and KRE 503(b), arguing that "certain of the records you seek pertaining to my emails are protected by the attorney-client privilege and thus may be properly withheld. " 3 In response to Mr. Mudd's appeal, KHESLC briefly reiterated its original arguments, noting that it "reviewed those documents still in existence (those not otherwise destroyed as a matter of course pursuant to the agency's record retention and destruction policy and schedules) concerning the identified individuals during the specified time period" and provided the "appropriate responsive documents." In the agency's view, the "majority of these documents" fall within KRS 61.878(1)(i) or (1)(j), and, "to the extent" responsive documents "involved internal correspondence between" the agency's "General Counsel and other individuals within the organization, those documents are outside the definition of 'public records' and were properly withheld under the attorney-client privilege." 4 Our in camera review (conducted under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3) of the documents in dispute, which consist almost entirely of e-mails, confirms that most of those withheld under KRS 61.878(1)(i) and (j) do, in fact, qualify for protection as "part of the tools which a public employee or officer uses in hammering out official action within the function of his office," and which retain preliminary status unless adopted, in part or in whole, as the basis for any final action. Courier-Journal v. Jones, 895 S.W.2d 6, 8 (Ky. App. 1995); OAG 78-626.
Because the record on appeal is nearly devoid of any context or factual background in light of which to review the questions presented, this office is unable to conclusively determine whether some of the e-mails were ultimately adopted, or what exactly the final action was in each instance, though it appears that a few e-mails were so adopted; if so, those documents forfeited their preliminary status. Many of the documents withheld on the basis of KRE 503(b), incorporated into the Act per KRS 61.878(1)(l), do not satisfy all three elements of the attorney-client privilege, but instead are in the nature of "conversational-type communications," including travel or lunch plans, leave requests, jokes, etc., which are not exempt under KRS 61.878(1)(i) and (j), nor do they fall within the parameters of KRE 503. See 05-ORD-144. The attorney-client privilege does not automatically include all "internal correspondence" between its General Counsel and KHESLC staff. See Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008). In sum, any responsive preliminary documents adopted implicitly, or explicitly, as the basis for any final action by KHESLC, however tangential to the potential litigation it may be, as well as correspondence between KHESLC and its legal counsel which does not satisfy KRE 503(b), must be disclosed.
Mr. Mudd specifically requested copies of the following documents:
1. Written correspondence (including e-mails) from Diana Barber to any of the following individuals: Edward Cunningham, Chris Thacker, Jodi Renn, Ginny Burdon, any staff member at Diversified Collection Services ("DCS")/Performant, and any staff member at South Carolina Student Loan Corporation for the period of April 17, 2011 through May 31, 2011;
2. Written correspondence (including e-mails) from Edward Cunningham to any of the following individuals: Jim Ackinson, Kathy Taylor, Jo Carole Ellis, Chris Thacker, Kristi Nelson, Lori Flanery, any staff member at DCS/Performant and any staff member at [SCSLC], for the period of April 17, 2011 through August 30, 2011;
3. Written correspondence (including e-mails) from Chris Thacker to any of the following individuals: Jim Ackinson, any staff member at DCS/Performant, and any staff member at [SCSLC], for the period of April 17, 2011 through May 31, 2011;
4. Written correspondence (including e-mails) from Jodi Renn to any of the following individuals: Rhonda Mann, Diana Barber, Chris Thacker, Edward Cunningham and Jim Ackinson for the period of April 17, 2011 through August 30, 2011;
5. Written correspondence (including e-mails) from Jim Ackinson to any of the following individuals: Edward Cunningham, Diana Barber, David Carlsen, Erica Horn, Secretary Flanery, for the period of April 17, 2011 through May 31, 2011;
6. Written correspondence (including e-mails) received from any staff member at DCS/Performant to any of the following individuals: Edward Cunningham, Diana Barber, Jodi Renn and Chris Thacker, for the period of April 17, 2011 through August 30, 2011; [and]
7. Written correspondence (including e-mails) received from any staff member at [SCSLC] to any of the following individuals: Edward Cunningham, Diana Barber, Jodi Renn and Chris Thacker, for the period of April 17, 2011 through August 30, 2011[.]
As indicated, KHESLC denied the vast majority of Mr. Mudd's request on the bases of KRS 61.878(1)(i), (j), and (l)(incorporating KRE 503). Having reviewed all of the numerous e-mails withheld, this office affirms the denial as to e-mails which are properly characterized as preliminary drafts, notes, correspondence with private individuals, or preliminary recommendations or memoranda, except to the extent KHESLC appears to have adopted some of those documents in taking final action regarding the underlying subject matter to which said e-mails relate. KHESLC erred in withholding e-mails of a conversational or informational nature which are neither exempt under KRS 61.878(1)(i) and (j) nor privileged within the meaning of KRE 503; however, KHESLC properly relied upon the attorney-client privilege in withholding confidential communications made by its General Counsel in the course and scope of her employment for the purpose of facilitating the rendition of legal services to KHESLC.
In resolving the questions presented, this office is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). "Despite its manifest intention to enact a disclosure statute," however, "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 Board 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); see 99-ORD-220; 02-ORD-86; 11-ORD-108. 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 here. See 97-ORD-168, pp. 2-7; compare 01-ORD-47; 01-ORD-83.
Regarding the underlying rationale of these statutory exceptions, the Attorney General has recognized that "KRS 61.878(1)[(i) and (j)] have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies." 93-ORD-125, p. 4. As evidenced by a review of the relevant authorities, that rationale is deemed "equally compelling regardless of whether the communications are within an agency or between agencies." Id. Early on, the Attorney General noted that "[n]ot every paper in the office a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes." OAG 78-626, p. 2; 04-ORD-030. Such preliminary drafts and notes and preliminary recommendations and memoranda "are part of the tools which a public employee or officer uses in hammering out official action within the function of his office." Id. Specifically, a "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 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 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to private individuals," is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." Id., p. 2. This exception does not apply to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6; 04-ORD-125.
Significantly, in 05-ORD-280 this office analyzed a series of then recent decisions involving access to intra/interagency e-mails, applying these authorities in contrasting the "conversational-type communications" at issue in 05-ORD-144 (copy enclosed) , which were deemed to be "of a transitory nature, devoid of meaningful value to the agency" and consisting of "neither drafts, notes, or correspondence with private individuals, nor subjective expressions of opinion . . . [or] recommendation, " with the emails at issue in 05-ORD-210 (copy enclosed) and 05-ORD-221 (copy enclosed) . In the latter decisions, the Attorney General affirmed the denials of access only as to e-mails containing recommendations and opinions, concluding that such e-mails fell squarely within the parameters of KRS 61.878(1)(j) and were protected from disclosure unless adopted as the basis for any final action by the agency. This office reviewed the subject emails in each case, produced for in camera inspection, "through the prism of the Kentucky Open Records Act and not in light of [prior] or subsequent disclosures through other legal mechanisms." 05-ORD-144, p. 5. Fundamental to each decision was the recognition that, based on the limited facts before us and the time constraints imposed under KRS 61.880(2), this office was "unable to trace each [email] to its conclusion, or determine what role the email played" in the final disposition of the matters to which it pertained. The instant appeal is no exception; rather, the variety of subjects addressed in the responsive e-mails here, many of which appear unrelated to each other without relevant facts or context, further impedes our ability to conduct a meaningful review, particularly given the high volume of documents involved.
Although this office is precluded from revealing the contents of the e-mails provided for in camera review, most of which KHESLC withheld under KRS 61.878(1)(i) and (j), the subject e-mails can be properly characterized as either draft versions of documents, notes taken by KHESLC staff, or correspondence with private individuals, which, for the most part, do not appear to have been adopted as the basis for any final action. In the alternative, said e-mails are preliminary recommendations/ opinions by KHESLC staff on how to handle a variety of different situations arising in the course of daily business or preliminary internal memorandums expressing opinions or formulating policies. To the extent any of these e-mails, including attachments, ultimately formed the basis of a chart, plan, letter, etc. which constituted final action regarding the subject matter at hand, those documents forfeited their preliminary status and must be disclosed.
Additionally, responsive e-mails consisting of political humor, sports commentary, discussions regarding lunch, vacations, etc. are not documents to which KRS 61.878(1)(i) and (j) extend protection. See 05-ORD-144, above. Insofar as the record on appeal does not contain any insight or explanation regarding the nature of the current dispute between the parties or identify the relationship between or among the individuals named in the request, with the exception of a July 25, 2011, letter from DCS Vice President David Yim to Mr. Cunningham confirming that "at no time did DCS have a contract with Core Recoveries," a copy of which Mr. Mudd received, this office is unable to conclusively determine what exactly the final action (s) taken by KHESLC, if any, was, and thus cannot say with certainty which of these documents forfeit preliminary status. Accordingly, this office trusts that KHESLC will again review the subject e-mails in light of the foregoing and provide Mr. Mudd with e-mails which either cannot be properly characterized as drafts, notes, opinions, etc. or which it ultimately adopted, in whole or in part, as the basis for a final action.
Both the courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege 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; 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. 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." See Scorsone , above. In short, 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). KHESLC cited KRE 503(b), but failed to make 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 does "[a] generic determination that entire categories of records are excluded" from the Act satisfy the requirements thereof. 5 97-ORD-41, p. 4.
Our independent review of the responsive e-mails withheld on the basis of KRE 503 revealed that a significant percentage of the documents were of a strictly conversational or information nature and/or consisted of jokes, leave requests, discussions of holiday or lunch plans, CLE requests, and what appear to be automatically generated acceptances of meeting invitations, none of which fall within the parameters of KRE 503(b). While this correspondence may or may not be what Mr. Mudd envisioned, the fact remains that such documents are responsive to his broadly framed request and were improperly withheld on the basis of the attorney-client privilege. That said, a smaller percentage of the e-mails do qualify for exclusion as they consist, for example, of agreements counsel was asked to review and revise as needed, personnel announcements regarding which her opinion was being sought, etc. 6 KHESLC properly invoked KRE 503(b) as to such documents which satisfy each of the elements codified therein. "Bearing in mind that the Attorney General is constrained by time and resources from conducting an in-depth inquiry into the issue[s] presented, and that on occasion, the application of the Open Records Act must be determined by a court of law, an avenue that remains open to [either party, as explained below,] if [it] disagrees with our decision," 10-ORD-191, p. 5, this office partially affirms the denial by KHESLC of Mr. Mudd's request consistent with the foregoing.
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:
Jesse A. MuddMelissa F. Justice
Footnotes
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