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 Menifee County Board of Education violated the Kentucky Open Records Act in the disposition of Board Vice-Chairperson April Smith's October 7, 2013, request, directed to Board Attorney Dana Daughetee Fohl. "As a member of the Menifee County Board and as one of your clients," Ms. Smith asked for "[a]ll correspondence with Menifee County School Board Members (Wendell Back, LeAnn Reed, Justin Lane, and Bennie Deskins), which includes all letters, faxes, emails and notes on phone conversations" in addition to "[a]ll correspondence with other agencies concerning any Menifee County School Board matter." By letter directed to Ms. Smith on October 18, Ms. Fohl advised that she was responding to her October 7 request "to review the privileged client file, specifically in regards to correspondence with members of the Menifee County Board of Education ("Board") and correspondence with other agencies concerning any Board matter." Ms. Fohl advised that "our firm, and me specifically, was engaged by the entire Board. Thus, the client is the entire Board, not any individual member. " Although representation of the Board "certainly involves communication with and interaction with individual Board members," she continued, "the individual members of the Board are not clients of the firm. Given this, the client file belongs to the entire Board." As the "client file contains confidential information relating to the representation of the Board as a whole, and particularly considering the Board is currently involved in two lawsuits," Ms. Fohl concluded, "I cannot ethically release the Board's file or anything contained therein without the Board's informed consent acting through a majority vote of the Board."
In her October 29 appeal Ms. Smith advised that the Board is under investigation by the Office of Education Accountability (OEA) for the second time since January and she has "repeatedly asked to be kept in the loop when it comes to board members conversing with the lawyer" but has "been told that it is none of my business." Ms. Smith explained that she had initially submitted a nearly identical open records request to Ms. Fohl (on September 20), which Ms. Fohl denied, explaining that neither Bowles Rice LLP nor Ms. Fohl is a "public agency" per KRS 61.870(1); accordingly, Ms. Smith made a second request "on the basis of attorney/client information" for the correspondence. Ms. Fohl's denial of the second request, made in her capacity as counsel for the Board, is the subject of this appeal. Based upon the following, this office finds that the Board's disposition of the request violated the Act.
Upon receiving notification of Ms. Smith's appeal, Superintendent Charles Mitchell advised this office by fax of November 4 that he could "be of very little assistance." Despite being the Custodian of Records for the Menifee County School District, Superintendent Mitchell advised that he was not involved in many of the exchanges between the individual members of the Board and Ms. Fohl. According to Superintendent Mitchell, this problem has been addressed "by myself, Ms. April Smith and our Finance Officer. It has been pointed out that this violates Ms. Fohl's contract with the [Board] to no avail." Superintendent Mitchell advised that he would "be glad to be of any assistance" regarding this appeal, but he does not possess any of the requested correspondence. Attached to his November 4 letter was a copy of Ms. Smith's September 20 request to Ms. Fohl, a copy of Ms. Fohl's September 24 response (advising that all requests "for inspection of public information and records" must be directed to the records custodian of the public agency per KRS 61.872 and Board Policy 10.11, and that pursuant to KRS 160.440, Board Policy 1.412, and "orders of the Board," Superintendent Mitchell is the Board's custodian of records), and a copy of his undated letter to Ms. Fohl advising that he was attaching Ms. Smith's October 7 request letter and requesting that Ms. Fohl send the subject correspondence to him so that he could fulfill said request. He also enclosed the related e-mails indicating that Ms. Fohl was forwarding "two sets of PDFs" to him (with no explanation as to which, if any, responsive documents were being withheld) .
In a separate letter dated November 6, Ms. Fohl responded "on behalf of the Board of Education of Menifee County, Kentucky." Having summarized Ms. Smith's September 20 request and her September 24 response, Ms. Fohl advised that she received a "follow-up inquiry from Ms. Smith" by letter dated October 7, which is the "same inquiry referenced" in her appeal. According to Ms. Fohl, this "inquiry" was not a "request to inspect any open records," but was instead a request "'on the basis [sic] attorney/client information'" made as a "'member of the Menifee County Board and as one of your clients.'" She further asserted that Ms. Smith mischaracterized her September 24 response in stating that she believed that the items previously requested "'were not open records.'" Because Ms. Smith's October 7 letter "was not properly couched as an open records request," and was not served on the records custodian, it "was not interpreted as an open records request." Ms. Fohl noted that her October 18 response advised that the client "is the entire Board, not any individual member. A request to review the client file by an individual member, Ms. Smith, was denied. The process by which this could be accomplished was explained." In the interim, also by letter dated October 7, Ms. Fohl observed, Ms. Smith "re-served her initial open records request on the Superintendent, the proper custodian of records for the Board. This request was properly answered" with a "number of documents produced." Ms. Fohl reiterated her position that "only the board as a whole, by way of proper motion, can make the request to view and inspect the entire client file. " Because Ms. Smith's October 7 request "by way of its own language," was not made pursuant to the Act, Ms. Fohl argued that her appeal must fail. This office respectfully disagrees notwithstanding the unusual posture of the instant appeal.
The guidelines for inspection of public records are codified at KRS 61.872 which, in relevant part, specifically provides:
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
Even if a request is "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2; OAG 76-588. This position has been well-established in prior decisions of this office in addition to an unpublished opinion by the Kentucky Court of Appeals, George William Sykes v. James Kemper , No. 2000-CA-000714 (Ky. App. 2001)(holding that failure to issue a proper and timely response upon receipt of an Open Records request was not excused by requester's failure to identify the request as being made under KRS 61.870 et seq. ). 1 See 06-ORD-197; 12-ORD-114.
Ms. Smith submitted a written request, describing the records that she wished to inspect, affixed her signature and printed her name legibly. Although her October 7 request "did not expressly invoke the Open Records Act, " like her September 20 request did, it "clearly satisfied all of the requirements found at KRS 61.872(2). That provision does not require specific reference to the Act." 10-ORD-098, p. 3; 06-ORD-112; 07-ORD-179; 12-ORD-138. "Public agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record that it was before the open records law was enacted." OAG 76-588, p. 2; 95-ORD-60; 05-ORD-060 11-ORD-080. When viewed in context, Ms. Smith's reference to "attorney/client information," and expression of her status, i.e., a member of the Board/Ms. Fohl's client, may have confused the issue but did not render the request invalid nor did they relieve Ms. Fohl, acting in her capacity as counsel for the Board, of the duty to comply; rather, a review of the record on appeal makes it clear that Ms. Smith only submitted a second request framed in that manner due to Ms. Fohl denying her initial request of September 20, and Records Custodian/ Superintendent Mitchell's lack of possession and/or inability to gain access to all responsive documents previously and/or in this instance.
Beyond that, Ms. Fohl holds the records in dispute "at the instance of and as custodian [footnote omitted] on the [agency's] behalf," and the [agency's] position that it cannot compel the [attorney] to disclose the [records] is without merit." 00-ORD-207, p. 5. In other words, the documents requested are records of the public agency, i.e., the Board. Although the facts presented are certainly unique insofar as the requester/ appellant is not a third party, but is a representative of the Board, as both Superintendent Mitchell and Ms. Fohl are, prior decisions establish that "'[i]n the end, it is the nature and purpose of the document[s], not the place where it is kept, that determines its status as a public record. '" Id. (Citations omitted.)
The General Assembly has recognized "an essential relationship" between the intent of the Open Records Act and the intent of Chapter 171 of the Kentucky Revised Statutes, relating to management of public records, at KRS 61.8715. However, the Act only applies to "public record [s]," a term which is expansively defined at KRS 61.870(2). 2 Early on, this office clarified:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277); 99-ORD-202. That being said, a public agency is not permitted to "somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " Id. Further, "[a] contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs . . . [including] the risk of closer public scrutiny than might otherwise be the case." OAG 90-7, p. 6. Such a contractor "cannot reasonably expect to conduct the public's business in the shadows." 97-ORD-62, p. 3.
In 00-ORD-207, this office held that the City of Sheperdsville violated the Open Records Act in denying access to a settlement agreement "disclosing the amount of money paid by the city's liability insurer in settlement of the lawsuit, on the basis that records of the insurance carrier, and the defense attorney hired by the carrier, cannot be 'opened by a demand upon the city.'" Id., p. 1. The City argued that the requester could not "'impose upon the city a duty to direct its insurer [and its defense attorney] in the handling of the case" to produce a copy of the document requested "inasmuch as the city lacks contractual authority to do so, and has no legal obligation to do so under the Open Records Act. " Id., p. 4.
In rejecting this position, the Attorney General noted that:
[n]umerous decisions of this office support the view that public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (l). For example, in 95-ORD-114 we held that a public hospital improperly denied access to a letter from the U.S. Department of Justice on the basis that the letter was not in the hospital's possession, but instead in the possession of the hospital's attorney, because the hospital failed to articulate any statutory basis for denial. Similarly, in 99-ORD-194 we held that a water district improperly postponed access to a merger agreement on the basis that the agreement was not in its possession, but instead in the possession of its attorney, holding that the fact that an agency's attorney may have possession of a public record does not negate the agency's duties under the Open Records Act. Finally, in 00-ORD-93 we held that a fire department's assertion that requested public records were not available for inspection because they were in the possession of its attorney did not constitute a sufficient legal basis for postponing the requester's access to the records.
00-ORD-207, p. 6; see 05-ORD-015 (holding per 00-ORD-207 that City of Lancaster violated the Act in denying request for documents containing "the 'mutually agreed upon amount' referred to in the 'Settlement and Release Agreement'" already provided to requester merely because it did not actually possess the documents); 05-ORD-157 (holding per 00-ORD-207 and 05-ORD-015 that if responsive "damage claims" existed, lack of possession by the Bullitt County Fiscal Court/Judge Executive was not a legitimate basis for denying access).
The City in that case "suggest[ed] that it lack[ed] 'contractual authority' to compel its agent, the insurance carrier, to furnish it with a copy of the settlement agreement, " but did "not cite a contract provision prohibiting it from immediately requesting a receiving a copy." 3 Id., p. 7. In 07-ORD-002, this office determined that a city's response to a request for the nonexempt records contained within its litigation files was deficient based on the agency's claim that said files were maintained in the offices of its contract attorneys meaning it "ha[d] no file." 07-ORD-002, p. 6. Reasoning that the requested litigation files were held by the attorneys for the city "at the instance of and as custodian on the [public agency's] behalf," Id., p. 7, this office concluded:
Regardless of where the pending litigation file is located, it is "prepared, owned, and used at the instance of the city," and is therefore "essentially the city's [file] . . . ." Cullinan at 4. Although the city's contract attorney holds it "as custodian on the city's behalf," id. , it is its nature and purpose that is determinative of its status as a public record. We therefore find that the city is obliged to review, or direct its contract attorney to review, the responsive file to determine if any nonexempt records, such as billing statements or pleadings filed with the court, reside in the file. If so, the city must produce these records for [the requester's] inspection, and describe, in general terms, the records withheld and the basis for denial. This would include records protected from disclosure by the attorney client privilege, or that constitute work product, as long as all of the elements of these privileges are met. See Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771 (2001); 02-ORD-161; 01-ORD-246.
The same duties rest with the Board. See 08-ORD-156 (finding, as in 04-ORD-123, no support for the proposition that the city had no control over the records in the possession of the city attorney relating to city business merely because the city did not maintain the records); 12-ORD-120 (fiscal court acknowledged that private investigator "'would be contractually obligated to provide' it with a copy of the full report, and thus did not, and could not cite any contract provision that would prohibit it from immediately requesting a copy, relying instead on the potential difficulties associated with enforcing the contract," none of which altered the legal analysis regarding the accessibility of the "public record" for which the investigator was compensated with public funds and which the investigator was holding "'at the instance of and as custodian' " for the agency).
Ms. Fohl/the Board could properly withhold some or all of the documents requested as being privileged from inspection by the public generally per KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), assuming that all elements were satisfied; however, this office disagrees that such records are beyond the reach of the Act or unavailable to a representative of the client inasmuch as the privilege belongs to the client. See 03-ORD-225; 03-ORD-171. Even assuming that Ms. Smith must be treated like any member of the public, 4 Ms. Fohl/the Board should have specifically identified the records being withheld and provided her with redacted copies per KRS 61.878(4) if appropriate. Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008)(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 12-ORD-075 (The attorney-client privilege "does not automatically include all 'internal correspondence' between its General Counsel and [the agency] staff"). Further, this office has rejected the notion that a public agency is permitted to deny or delay access to public records until such time as the agency or its governing body can meet in order to approve production of the records. See 95-ORD-26; 99-ORD-101. For all of the foregoing reasons, the Board violated the Open Records Act in the disposition of Ms. Fohl's request.
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:
April SmithCharles MitchellDana Daughetee Fohl
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