Request By:
Wes Tincher
Sharpsburg Water District
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 Sharpsburg Water District violated the Kentucky Open Records Act in partially denying Wes Tincher's July 7, 2013, request for "an electronic or paper copy" of "[a]ll bills paid or unpaid," including but not limited to, "Attorney Fees, Appraisal Fees, Court Costs, any or all expenses incurred with the Condemnation, and ongoing court case . . . Sharpsburg Water District vs. West & Christy Tincher, Case [N]o. 11[-]CI[-]90042, also any and all paperwork memos, letters and all available information in this case." (Original emphasis.) Mr. Tincher also requested the names and current physical addresses of all current Board members. In a timely written response, Gayle Haney responded on behalf of the District, advising that "this is an ongoing case and as such there are items which are protected by attorney-client privilege." Citing KRS 61.872(4), Ms. Haney explained that she would "need additional time in which to determine which items requested that I am permitted to provide to you and separate those items." 1 Ms. Haney indicated that she would "make this determination within 15 additional days and will have any and all documents available for your review on July 26 2013 at our office during regular business hours pursuant to KRS 61.872(3)(b)." She also noted that if Mr. Tincher wished to identify the items that he was requesting with greater specificity, it "would assist in our ability to provide you with your request sooner." Ms. Haney listed the names of all current Board members but advised that the District would not be permitted to provide the current physical addresses of the individual members pursuant to KRS 61.878(1)(a)(mistakenly cited as 61.884(1)(a)) "as the requested information is personal in nature" and the disclosure thereof would constitute "an unwarranted invasion of personal privacy" that does not serve the principal purpose of the Act. Noting that if he read the statute correctly Board members are required to reside within the District, and he believes that one does not, Mr. Tincher initiated this appeal on July 24, 2013.
Upon receiving notification of Mr. Tincher's appeal from this office, Earl Rogers, III, legal counsel for the District, responded on behalf of his client. Mr. Rogers advised that on July 26 Mr. Tincher was provided with a total of 44 responsive pages. The only documents not provided, Mr. Rogers explained, "were a couple of letters written by counsel and those letters would be protected by attorney-client privilege." According to Mr. Rogers, "there is no bill or invoice to provide. Our office has not been paid a retainer fee by [the District] nor have they been sent an invoice requesting payment. There is no written contract as to payment by [the District] and there [sic] nothing that can be provided to Mr. Tincher." It is our practice, Mr. Rogers concluded, "to bill the client upon finalization of the case and this has not yet taken place." 2 Mr. Rogers advised that the only available information that was not provided to Mr. Tincher was the home address of the Board members for the District. Citing Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994), Mr. Rogers argued that disclosure of that information would constitute an "unwarranted invasion of personal privacy and the Board members "do have a reasonable expectation of privacy in their home addresses."
The District is correct in asserting that individuals Board members have a reasonable expectation of privacy in their home addresses; however, the analysis under KRS 61.878(1)(a) does not end there, but is fact specific, and providing the addresses in this case would "further the citizens' right to know, " Zink at 828, as it would enable the public to determine whether each member of the Board satisfies the requirements of KRS 74.020(1)(a), pursuant to which members are required to "be residents of the district, or of any incorporated or unincorporated area served by the district in the county in which the district was originally established. . . ." In other words, disclosure is necessary to serve the principal purpose of the Open Records Act. Zink is distinguishable in this critical respect and the District erred in withholding the addresses requested on the facts presented.
The courts and this office have consistently recognized that the information withheld is of a personal nature; however, the analysis does not end there. Rather, the question becomes whether disclosure of the information would further a purpose related to the Open Records Act. In making this fact specific determination, our analysis must be 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," as well as the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, 826 S.W.2d 324, 327 (Ky. 1992). This office is also mindful that "a public agency cannot adopt a policy of blanket nondisclosure relative to [addresses] or any other piece of information appearing on a public record." 96-ORD-177, p. 2; 12-ORD-149.
In Kentucky Board of Examiners , above , the Kentucky Supreme Court established the standard by which this office must determine whether a public agency has properly relied on KRS 61.878(1)(a) as the basis for denying access to public records. Recognizing the Act "exhibits a general bias favoring disclosure, " the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) necessarily turns on whether the offense to personal privacy that would result from disclosure of the information contained therein outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id.
As indicated, the public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Board of Examiners at 328. The Court of Appeals refined the standard of Kentucky Board of Examiners in Zink , above . In discussing its "mode of decision," the Court of Appeals observed that a determination made under KRS 61.878(1)(a) "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Kentucky Board of Examiners ] at 327. . . . [T]he circumstances of a given case will affect the balance. Id. at 328." Zink at 828. In determining whether an invasion of personal privacy was "clearly unwarranted" on the facts presented in Zink , the Court emphasized that its "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. " Id. at 829. Having engaged in a "comparative weighing of antagonistic interests," the Court determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the requester access to personal information contained in the injury report forms submitted by private citizens, including, but not limited to, their home addresses. The Court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and the dissemination of unsolicited information to injured workers might serve the "broad public interest" by educating injured workers regarding their legal rights under the workers' compensation statutes, but "[could not] be said to further the principal purpose of the Open Records Act. " Id. at 829. Accordingly, the substantial privacy interests of the injured employees in such personal information outweighed the "negligible Open Records Act related public interest in disclosure. " Id. Inasmuch as the relevant public interest is heightened in this instance, and the disclosure of the requested addresses would further the principal purpose of the Act, Zink is distinguishable.
More recently, the Court of Appeals emphasized that "bright-line rules permitting or exempting disclosure [of public records] are at odds with controlling precedent." Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006). In Cape Publications , the Court of Appeals focused on the "case-by-case analysis required by the outstanding law on the Open Records Act, " and, in particular, KRS 61.878(1)(a) Id. The Court expressly declined to establish "a bright-line rule permitting disclosure" of evaluations, instead endorsing a "case-by-case analysis." Id. Applying this "case-by-case analysis" of the competing interests presented here compels a result which is contrary to the District's position.
Similarly, in 09-ORD-161 this office concluded that the Energy and Environment Cabinet, Division of Conversation violated the Act in withholding the addresses of "'all individuals, businesses, farming operations or similar entities in Clark County that have received funding in the last five years from the Kentucky Soil Erosion and Water Quality Cost-Share Program'" on the basis of KRS 61.878(1)(a). Disclosure of the requested addresses "presumably would 'further the citizens' right to know, '" this office reasoned, "insofar as it would enable the public to determine whether the Division properly awarded Program funds only to qualified applicants, in accordance with eligibility and prioritization criteria for participation in the Program . . . , and ensure that recipients were applying those funds to development and implementation of 'best management practices'[] for the permissible reasons." Id., p. 3. The location of the farm or tract of land itself was "essential for sufficient public scrutiny" as neither the dates when the funds were awarded nor the amounts granted adequately served that purpose. Id., pp. 3-4; compare 97-ORD-176; 05-ORD-100. Likewise, disclosure of the requested addresses will enable the public to confirm that each member of the Board satisfies the requirement of residency codified at KRS 74.020(1). Given this heightened public interest, as compared to the "negligible Open Records Act related public interest" presented in Zink , this office concludes that the District improperly withheld the addresses on the basis of KRS 61.878(1)(a).
In withholding two responsive letters, the District relied upon the attorney-client privilege. Although the District is entitled to withhold communications that satisfy the elements of the attorney-client privilege codified at KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the District did not cite KRE 503 or KRS 61.878(1)(l), nor has it attempted to make a showing that each of the required elements can be satisfied as to both of the letters withheld. The District is authorized to withhold those records that are privileged "only if it can articulate, in writing, the reasons for withholding a record, or group of records, with sufficient particularity and detail to enable the public to assess the propriety of its actions." 05-ORD-136, p. 8; 03-ORD-142; 06-ORD-166. Thus far it has failed to provide sufficiently detailed information to substantiate its position and satisfy its burden of proof under KRS 61.880(2)(c).
That said, the courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege and/or work-product doctrine 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; 02-ORD-161; 10-ORD-177; 11-ORD-108. Pursuant to KRE 503(b), 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[.]" Accordingly, this office has long recognized that 503(b) applies if a public agency can establish that all three of the following elements have been established: 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). 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." Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008).
The District did not cite KRE 503, nor has it made a showing that each of these elements can be satisfied as to both of the letters withheld, merely advising that counsel wrote said letters. A "bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . ." 00-ORD-10, p. 11. In so holding, this office is not implying that the District cannot successfully build a case for withholding both of the letters on the basis of KRE 503 and/or CR 26.02, only that it has failed to provide sufficiently detailed information to substantiate its position thus far.
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.
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Distributed to:
Wes TincherGayle HaneyEarl Rogers III
Footnotes
Footnotes
1 The District did not assert that KRS 61.872(5)(the only exception to the rule of providing access within three business days codified at KRS 61.880(1)), applied here, nor is there any indication that the records were "in active use, in storage or not otherwise available." Rather, the only explanation given for the further delay was the need to review and separate the records; however, the need to redact and/or separate records pursuant to KRS 61.878(4) is "an ordinary part of fulfilling an open records request and has not been found to be, in and of itself, a reason for additional delay."12-ORD-227, p. 2. See 10-ORD-138 ("the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the [agency's] position that the delay is necessary").
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2 The District is not required to produce nonexistent records nor is the agency expected to "prove a negative" in order to refute a claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005); however, the inability of the agency to produce any responsive bills or invoices, etc. due to their apparent nonexistence was "tantamount to a denial and . . . it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 09-ORD-019. Insofar as the District initially failed to affirmatively indicate whether any such records existed, it failed to fully discharge its duty under the Open Records Act; however, the agency has done so now and cannot produce that which it does not possess.
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