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 Transportation Cabinet violated the Kentucky Open Records Act in denying Paul J. Vesper's July 30, 2012, request "for materials Jesse Rowe has withheld claiming a privilege to the [Cabinet]," specifically those withheld on July 19, 2012, which are "related to the deposition of Vicki Bourne and Jeremy Thompson." Mr. Vesper submitted the request on behalf of his client, Handi-Van, Inc., following the Cabinet's production of documents in response to a subpoena duces tecum served on Ms. Bourne and Mr. Thompson by the Boone Circuit Court in relation to Handi-Van, Inc. v. The Community Cab Company, Inc. , Civil Action No. 06-CI-2268. In a timely written response, Records Custodian Ann Stansel "advised that all of the materials in question consist solely of communications between Cabinet attorneys and their client" and thus are privileged communications protected under KRS 61.878(1)(l). 1 Arguing that the Cabinet failed to satisfy its burden of proof, Mr. Vesper subsequently initiated this appeal, noting that the Department administers the Human Service Transportation Delivery program and the Leslie, Knott, Letcher, Perry Community Action Council (LKLP), a private, non-profit corporation, is a contracting broker with the Cabinet and one of the defendants in the referenced civil action. LKLP is represented by counsel provided by its insurance carrier. Mr. Vesper emphasized that the Cabinet is not a party in the subject litigation.
Having reviewed all of the subject e-mails in camera per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, the contents of which this office is prohibited from revealing, the Attorney General finds that most were properly withheld on the basis of KRE 503, incorporated into the Act by operation of KRS 61.878(1)(l) . Said e-mails consist primarily of confidential communications between Cabinet attorneys (or contract attorney), those attorneys and legal staff, and/or those attorneys/legal staff and employees of the Transportation Cabinet's Department of Vehicle Regulation, Office of Transportation Delivery, Office of Public Affairs, and Secretary's Office. The communications were made for the purpose of facilitating the rendition of professional legal services and pertain to matters within the course and scope of that employment. However, a small number of e-mails were not restricted to Cabinet attorneys/legal staff/ employees, but instead consist of exchanges including private attorneys representing other parties, and thus are not protected; likewise, any correspondence directed to Mr. Vesper or to which he responded, is not privileged though Mr. Vesper may not wish to receive copies of documents he already has in his possession.
Upon receiving notification of Mr. Vesper's appeal from this office, Senior Counsel J. Todd Shipp supplemented the agency's response, advising that the Cabinet complied with the subpoena, providing Mr. Vesper and his client "free and unfettered access to the subpoenaed documents." However, once the request "evolved into his seeking e-mail correspondence between Cabinet attorneys and their client (Office of Transportation Delivery)," Mr. Shipp explained, the agency notified Mr. Vesper, by letter dated July 25, 2012, that such records would not be produced in response to his subpoena, invoking the attorney-client privilege and work product doctrine (codified at KRE 503 and CR 26.02, respectively). 2 Mr. Shipp then correctly observed that the attorney-client privilege consists of three elements, all of which are present here in his view. The client, through its Secretary, "demanded the exercise of this privilege." Inasmuch as the attorney-client privilege is incorporated into the Act by operation of KRS 61.878(1)(l), the Cabinet maintained that the e-mail correspondence between Cabinet attorneys and Transportation Delivery employees "clearly is protected by KRS 422A.503 and KRE 503." With limited exceptions, the Cabinet is correct in this characterization of the records.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked the Cabinet to assist us in resolving the instant appeal by providing us with unredacted copies of all existing records responsive to Mr. Vesper's July 30, 2012, request for in camera inspection. Mr. Shipp responded in a timely manner, first explaining that "[t]here appears to have been a breakdown in communication" regarding the records to which Mr. Vesper sought access through a subpoena that was served on Jeremy Thompson, Branch Manager, Office of Transportation Delivery, on June 5, 2012, and then by the subject Open Records request. "The confusion between [the Cabinet's] assigned counsel handling the subpoena" regarding what Mr. Vesper was requesting, Mr. Shipp advised, centered on the following (subpoena) request for documents:
All correspondence (documentation) between KDOT and/or CHFS [Cabinet for Health and Family Services] and LKLP, or The Community Cab Company Inc. or A Hilltop Taxi, LLC, and/it or them or its attorney, relating to administrative practice and procedures (not specific recipient individual issues) and inquiries, or investigations, or interpretations, or any statements or reports, relating to Handi-Van, Inc., or this litigation, or the KDOT Administrative Hearings including In Re: Applications of The Community Cab Company, Inc., Doc. Nos. 05-102, 05-103, and 05-104 or In Re: Applications of a Hilltop Taxi, LLC Doc Nos. 07-223;[,] 07-224, 07-226 and 07-227 and produce [y]our copies of any such hearings and notations or discussions relating to those, including communication relating to opposition of those administrative hearing officers['] reports.
Upon closer scrutiny, Mr. Shipp advised, the Cabinet believes that Mr. Vesper was actually requesting correspondence between Cabinet employees "and any individual associated with LKLP, The Community Cab Company, Inc., A Hilltop Taxi, LLC or any of their attorneys regarding the noted matters, all of which has been provided." Relying upon the position of counsel assigned to represent the Cabinet in processing the subpoena, Mr. Shipp "excepted the disclosure of communications between [Cabinet] attorneys and [Cabinet] employees." The Cabinet "believes it has provided in full what it believes Mr. Vesper seeks." However, the Cabinet confirmed that "it does possess communications between its attorney staff and [Cabinet] employees that may possibly be correspondence sought." An exchange between this office, Mr. Vesper, and Mr. Shipp followed, in the course of which Mr. Vesper reiterated his belief that all existing responsive documents have not been produced, asking the Cabinet to "simply reproduce them" if so, and confirm "these are all the documents that were previously the subject of the claim." Mr. Shipp ultimately advised that the approximately 150 pages which Mr. Vesper observed Mr. Rowe removing "were documents to and from attorneys to staff" and indicated that if "read in its appropriate context" the request "would never have involved these documents." In other words, "unresponsive documents" were removed. Mr. Vesper asserted that Mr. Shipp was "referring to a situation outside of the Open Records Request" and the Cabinet should produce the 150 pages of documents "because communication with staff by professional staff may not necessarily constitute attorney-client privilege[d]" material or work product. This assertion is correct; however, the fact that the Cabinet is not a party to the subject litigation, and the matters discussed therefore may or may not directly relate thereto, is also not dispositive.
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, 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, [which] 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.
More recently, 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 v. University of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). 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). Similarly, our independent review of the subject e-mail correspondence verified the Cabinet's position with limited exceptions described in general terms below.
Although this office is precluded from revealing the contents thereof, our in camera inspection of the documents responsive to Mr. Vesper's July 30, 2012, request, yet withheld from those produced on July 19, confirmed that most satisfy all three elements of KRE 503. The documents consisted primarily of e-mail threads (most attachments were not among the materials) from the accounts of Cabinet attorneys Kevin Moore and Charles Wilkinson, or Department of Vehicle Regulation employee Rick Taylor, with a couple being from the account of Mr. Rowe, and covered the period of January 2007 to March 2010. Some originated with requests by employees in the Department of Vehicle Regulation or the Office of Transportation Delivery, legal staff, or Cabinet attorneys, for advice on how to respond to a telephone inquiry, proceed regarding a specified matter, etc. Others contained updates regarding the status of certain proceedings from same or consisted of legal advice/ opinions to legal staff and/or employees from attorneys, or consisted of discussions between attorneys regarding interpretation of statutes or court rulings, application of legal precedent(s), discussion of a specific brief, etc. All of the above were copied only to some combination of Cabinet attorneys, legal staff, and employees. In addition, some threads were between Clay Patrick (contract attorney) and Mr. Moore, both acting in their capacity as legal counsel for the Cabinet, and consisted of discussions or updates regarding legal strategies for a specified legal proceeding(s).
The relationship of attorney and client unquestionably existed in each instance. While a relatively small number of the e-mails were characterized expressly as "attorney-client privileged, " most were marked "confidential" in some fashion and/or were confidential within the meaning of KRE 503(a)(5). These confidential communications were also "made for the purpose of facilitating the process of rendering professional legal services" to the Cabinet (or a Department thereof). The communications were between the client or its representative(s) (Cabinet, and more specifically, Department/Office employees) and the attorney(s) for the client or a representative(s) (legal staff) thereof, or between representatives of the client, or the client and a representative of the client. All of the attorneys/representatives were acting in the course and scope of their employment, and the communications, whether directly related to the subject litigation or not, pertained exclusively to matters within the course and scope of that employment, i.e., related to the subject matter for which their professional advice was being sought on each occasion. Accordingly, the Cabinet was entitled to withhold those records on the basis of KRE 503.
A limited number of e-mail threads were received from or directed to (copied in some cases) Ellen Houston or Patrick Hughes, both of whom are private attorneys that were apparently serving as opposing counsel in specified legal proceedings; accordingly, those e-mails do not qualify for exclusion. In addition, one or two e-mail threads (one at least partially duplicative) involving Richard T. Trettin (identified as the attorney for Medi-Cab) or Drew Banks (role unknown but related to Hilltop Taxi), neither of which is a Cabinet attorney, member of the legal staff, or employee, do not satisfy KRE 503(b) and must also be released, in addition to a single e-mail thread from August 2008 directed only to Cabinet attorneys, legal staff and employees by a Cabinet employee, which consists of a newspaper article, unless the Cabinet is able to justify its denial with more specificity. An e-mail from April 2009 directed to Cabinet employee Rick Taylor by a D. Weatherford, d/b/a Rosie's Taxi, attached to which are documents including a Purchase Agreement, was also improperly withheld. The only remaining exceptions consist of documents either sent by Mr. Vesper, or copied or served on him originally, which appeared to have been inadvertently removed from the documents produced. Although Mr. Vesper may not wish to pay for duplicate copies of these documents, the fact remains they are not privileged.
As in prior appeals involving accessibility of e-mail correspondence, this office has reviewed the subject e-mails "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. On each occasion, because of the limited evidentiary record 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 matter(s) to which it pertained. Id.; 12-ORD-075. The instant appeal is no exception; rather, the variety of parties, legal proceedings, etc. addressed in the responsive e-mails here, many of which appear unrelated to each other in the absence of additional relevant facts or context in which to review the contents, further limits our ability to conduct a meaningful review and/or identify the e-mails with greater specificity (to the extent permissible) in this decision. See 12-ORD-075. "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 affirms the Cabinet's denial of Mr. Vesper's request with the noted exceptions.
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:
Paul J. VesperJ. Todd ShippAnn Stansel
Footnotes
Footnotes
1 Mr. Vesper failed to include this response with his appeal per KRS 61.880(2)(a), relying instead on a July 25, 2012, letter that he received from Senior Counsel and Special Assistant J. Todd Shipp regarding the related subpoena. The Cabinet provided a copy of its original written response dated August 3, 2012, with Mr. Shipp's August 29, 2012, response to Mr. Vesper's appeal.
2 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, for application of the work product doctrine in the context of an Open Records dispute generally. Because the Cabinet did not invoke this privilege initially nor did the agency raise this argument in responding to Mr. Vesper's appeal from the denial of his Open Records request, further discussion is unwarranted.