Opinion
Opinion By: Jack Conway,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Office of the Attorney General ("Attorney General") violated the Open Records Act in failing to appoint a neutral Special Attorney General and withholding internal communications between attorneys. We find that the Attorney General did not violate the Open Records Act in failing to appoint a neutral Special Attorney General and withholding internal communications between attorneys.
BACKGROUND
Davis submitted an Open Records Request to the Attorney General on Aug. 17, 2015. Davis requested:
01. For the period of twelve months immediately preceding this request, all public records reflecting or otherwise evidencing communications directed to the Kentucky Attorney General or any agent of the Attorney General by any individual, the said communication being related to the Glasgow Board of Education, the Glasgow Independent School District or South Green Elementary;
02. For the period of twelve months preceding this request, all public records reflecting or otherwise evidencing communications directed by the Kentucky Attorney General or an employee or agent of the Kentucky Attorney General to any individual related to the Glasgow Board of Education, the Glasgow Independent School District or South Green Elementary;
03. All alternative drafts of 15-OMD-114, the published draft being dated July 1, 2015;
04. For the period of twelve months preceding this request, all documents evidencing or related to all ex parte communications received by the Kentucky Attorney General or agents of the Kentucky Attorney General related, directly or indirectly, to the issues addressed in 15-OMD-114. For purposes of this request, ex parte communications are defined as any communications, irrespective of media, received by the office of the Kentucky Attorney General that address any issue raised or otherwise addressed in 15-OMD-114 that were not timely served upon an agent of the Glasgow Board of Education, the affected public agency.
The Attorney General responded on Aug. 31, 2015, 1 stating:
We are providing non-exempt records responsive to your requests number 1, 2, and 4 along with this letter. However, the documents you request in number three (3) are exempt from production pursuant to KRS 61.878(1)(i) and (j) as any "alternative drafts" are preliminary drafts or notes other than correspondence which is intended to give notice of final action of a public agency and/or are preliminary recommendations in which opinions are expressed or policies are formulated or recommended. Additionally, any "alternative drafts" would also be protected under the attorney-client privilege and/or the work product doctrine which are incorporated into the Open Records Act at KRS 61.878(1)(1). Additionally, certain internal emails responsive to your requests number 1, 2, and 4 have been withheld or redacted as exempt pursuant to KRS 61.878(1)(i), (j) and (l) which incorporates the attorney client and work product privileges into the Open Records Act. These internal emails are between attorneys within the Office of the Attorney General and reflect preliminary recommendations in which opinions are expressed or policies are formulated or recommended and/or legal analysis within our office.
Davis initiated this appeal on Sept. 9, 2015. Davis requested: "that a neutral Special Attorney General be appointed to review the Attorney General's denial of our requests No. 1, 2, and 4." 2 Davis further stated:
Mr. Freddie Travis sued the Glasgow Board of Education as a result of the Opinion rendered by your office in 15-OMD-114. . . . The documents produced, specifically Glasgow GOE AG -60, indicates that Freddie Travis is the Spokesperson for a group of individuals that characterize themselves as "Community Stakeholders."
On June 15, 2015, six days after Freddie L. Travis filed his appeal in the office of the Attorney General, the email found at Glasgow BOE AG-55 indicates that Mark Powell, a member of the Stakeholder Group, communicated by phone with Susan Britton by phone [sic] on Friday, June 12, 2015 and directed an email to Susan Britton on June 15, 2015 at 3:23 PM stating as follows: "Please call at your earliest convenience and thanks so much for working with us." By email dated June 15, 2015 at 2:06 PM, Mark Powell directed an email to Susan Britton in the Office of the Attorney General and stated as follows: "Freddie L. Travis is a former Barren County Judge Executive and a former Glasgow School Board Member and was referred to you via Steve Newberry, a mutual friend of ours."
In light of the fact that the Attorney General has invoked the Attorney Client Privilege as a basis for refusing to produce a copy of all documents responsive to Requests 1, 2, and 4, please identify the client represented by the Attorney General for which the privilege is invoked. In the event that the client is Freddie L. Travis, Mark Powell or another member of the "Stakeholder Group," it would appear that a conflict of interest exists where the Attorney General issues an Opinion favorable to his client and adverse to an affected public agency.
The Attorney General sent a follow-up letter to Davis on Sept. 15, 2015, stating:
KRS 61.846(2) does not provide for the appointment of a "neutral Special Attorney General." . . . KRS 61.880(2) directs the Attorney General to review open records appeals without reference to the identity of the requester or the agency issuing the denial. If you are dissatisfied with the Attorney General's decision, you may further appeal to the Franklin County Circuit Court. The court will review the decision de novo and therefore you will not be prejudice [sic] in any way.
If you prefer to forego an open records appeal with our office, you may withdraw your appeal and appeal directly to Franklin County Circuit Court.
Having received no response to this letter, the Attorney General responded to the appeal on Oct. 22, 2015, stating:
The internal emails and communications among attorneys within the OAG are protected by both work product and attorney client privilege. The OAG does not represent any of the parties mentioned by Mr. Davis and therefore, does not claim a particular client. Although it is impossible to define the client of a government lawyer, it has been asserted that government lawyers "represent the public or public interest. " Restatement (Third) of the Law Governing Lawyers § 97 cmt. at 3 (2000). As the chief law officer of the Commonwealth of Kentucky, the Attorney General represents all the Commonwealth's "departments, commissions, agencies, and political subdivisions." KRS 15.020. Therefore, any internal communications between attorneys within the OAG is necessarily protected by attorney client privilege because the OAG is an agency of the Commonwealth, and as such, the privilege applies.
ANALYSIS
I. Appointment of a Neutral Special Attorney General
Regarding the appointment of a neutral Special Attorney General, in 99-ORD-121, a requester appealed the denial of records by the Attorney General's Consumer Protection Division. We held that:
KRS 61.880(2) assigns to the Attorney General the role of dispute mediator in an open records appeal. . . .
The statute directs the Attorney General without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
Also, if this matter is appealed to the appropriate circuit court-which could have been done without requesting the opinion-that court will make a de novo review of the evidence. Therefore this opinion will not prejudice the requesting party in any way.
Because there is no provision for independent review under circumstances such as those presented here, the Attorney General must proceed with a review of the appeal "without favoritism or bias."
(citations omitted). In 99-ORD-121, we held that this office is without statutory authority under the Open Records Act to appoint an independent reviewer. Additionally, KRS 61.882(1) provides that "the Circuit Court of the county . . . shall have jurisdiction to enforce the provisions of KRS 61.870 to 61.884 . . . on application of any person," and KRS 61.882(2) provides that "a person alleging a violation of the provisions of KRS 61.870 to 61.884 shall not have to exhaust his remedies under KRS 61.880 before filing suit in a Circuit Court." KRS 61.882 gives circuit courts concurrent jurisdiction over actions under the Open Records Act, and persons desiring an independent tribunal may file an action with the circuit court at any time without appealing to this office. Accordingly, we find that the Attorney General did not violate the Open Records Act in declining to appoint a neutral Special Attorney General.
II. Attorney-Client Privilege
The Attorney General states that "the internal emails and communications among attorneys within the OAG are protected by both work product and attorney client privilege." 3 KRS 61.878(l)(l) exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." "The protections generally afforded by the attorney-client privilege have been recognized and incorporated into the statute by the Kentucky General Assembly."
Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. Ct. App. 2001). Davis states that "in light of the fact that the Attorney General has invoked the Attorney Client privilege . . . , please identify the client represented by the Attorney General for which the privilege is invoked. " The Attorney General responds that it "does not represent any of the parties mentioned by Mr. Davis and therefore, does not claim a particular client. Although it is impossible to define the client of a government lawyer, it has been asserted that government lawyers 'represent the public or public interest. '" The Attorney General further states that "as the chief law officer of the Commonwealth of Kentucky, the Attorney General represents all the Commonwealth's 'departments, commissions, agencies, and political subdivisions,'" citing KRS 15.020.
In Hahn, 80 S.W.3d 771, the court considered the University of Louisville's withholding of communications "between university employees and a university attorney." Id. at 772. The court found that "the communications were made for the purpose of providing legal services to the University." Id. at 776. The court held that "the disputed communications are protected by the attorney-client privilege and the explicit provisions of KRS 61.878 protect the documents containing these privileged communications from compulsory disclosure. " Id. Hahn establishes that the attorney-client privilege applies to internal communications for the purpose of providing legal services at a state agency.
More generally, government attorneys and their clients have the same attorney-client privilege that extends to corporations and their clients. "The attorney-client privilege extends to a communication of a governmental organization . . . and of an individual employee or other agent of a governmental organization as a client . . . ." Restatement (Third) of the Law Governing Lawyers § 74. However, regarding the Attorney General's claim that it is impossible to define the client of a government lawyer:
No universal definition of the client of a governmental lawyer is possible. For example, it has been asserted that government lawyers represent the public, or the public interest. However, determining what individual or individuals personify the government requires reference to the need to sustain political and organizational responsibility of governmental officials, as well as the organizational arrangements structured by law within which governmental lawyers work. Those who speak for the governmental client may differ from one representation to another. The identity of the client may also vary depending on the purpose for which the question of identity is posed. For example, when government lawyers negotiate a disputed question of departmental jurisdiction between two federal agencies, it is not helpful to refer to the client of each of the lawyers as "the federal government" or "the public" when considering who is empowered to direct the lawyers' activities. For many purposes, the preferable approach on the question presented is to regard the respective agencies as the clients and to regard the lawyers working for the agencies as subject to the direction of those officers authorized to act in the matter involved in the representation.
Id. at § 97 cmt. c; see also
State ex rel. Thomas v. Ohio State Univ., 643 N.E.2d 126, 130 (1994) ("Records of communications between attorneys and their state-government clients pertaining to the attorneys' legal advice are excepted from disclosure . . . , since the release of these records is prohibited by state law."). While no universal definition of the client for a government lawyer is possible, as the client may vary for the purposes of the question, the preferred approach is to regard the agency at issue as the client, and the government lawyers working for the agencies as the attorneys.
In the open records context, the Attorney General functions as an administrative agency, authorized to hear and decide open records appeals.
Commonwealth v. Chestnut, 250 S.W.3d 655, 660-63 (Ky. 2008). As such, in an open records appeal, the Attorney General, as the agency, serves as the client, and the lawyers working for the agency serve as the attorneys. Thus, internal emails between attorneys of the Attorney General involving open records appeals are protected by the attorney-client privilege unless otherwise waived. In this case, there was no waiver of the privilege. Accordingly, the internal emails between attorneys of the Attorney General regarding open records appeals are protected by the attorney-client privilege, and the Attorney General did not violate the Open Records Act in withholding them.
In summary, we find that the Attorney General did not violate the Open Records Act in not appointing a neutral Special Attorney General, and in withholding internal emails between attorneys on the grounds of the attorney-client privilege.
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 proceedings.
Footnotes
Footnotes
1 KRS 61.880(1) provides that "each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days . . . 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." However, Davis does not raise this issue in his appeal, and therefore we do not address it.
2 Davis defined a "neutral Special Attorney General" as "an individual that is neither an employee of the Attorney General nor a political supporter of the Attorney General. This individual should not be an individual who is vulnerable to retaliation in the event the Attorney General is successful in his candidacy for Governor."
3 Although in its response to Davis' request, the Attorney General invoked the preliminary documents exceptions in KRS 61.878(1)(i) and (j) in regard to both the alternative drafts and the internal emails, Davis does not challenge the denial of the preliminary drafts in his appeal, and the Attorney General does not invoke the preliminary documents exceptions for the internal emails on appeal. Accordingly, we do not address their application. See 15-ORD-24 n. 1; 09-ORD-207.