Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Jonathan J. Schmidt initiated this appeal 1 challenging the disposition by the University of Louisville (University) of his November 3, 2015, request 2 "to review/copy" documents relating to a personnel action that was filed against him by University personnel between September 21, 2015, and October 16, 2015, including "all correspondence, e-mails, and notes," and specifically eight categories of records, for example, the "entire contents" of the University Police Department file and the Dean of Student Affairs' office files regarding the action to include the "PNG determination/appeal." 3 By e-mail dated November 13, 2015, the University advised Mr. Schmidt that responsive documents were being released but "names and personally identifiable information of complainants and informants" had been redacted from the documents pursuant to KRS 61.878(1)(a). The University further indicated that a "few documents" were being withheld on the basis of the attorney-client privilege codified at KRE 503(b) and incorporated into the Open Records Act by operation of KRS 61.878(1)(l), quoting the language of both.
Upon receiving notification of Mr. Schmidt's appeal from this office, Associate University Counsel Amy E. Shoemaker elaborated upon the University's position. With regard to documents withheld on the basis of the attorney-client privilege, counsel advised that "the communications withheld were documents sent from and to me as associate university counsel 'for the purpose of facilitating the rendition of professional legal services' to the [University].
Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001). We are seeking to protect the privileged nature of these statements for the aforementioned reasons."
Addressing the information withheld from the documents provided to Mr. Schmidt on the basis of KRS 61.878(1)(a), the counsel advised:
Please note from the records that the witness(es) who provided information to the Human Resources professionals were identifying threats of personal safety and harm to private individuals and a Jefferson Circuit Court Judge allegedly [made] by Mr. Schmidt. Accordingly, confidentiality was requested by the witness(es) in providing information to Human Resources. To this end, the University has redacted their identities, but provided all the records which identify the specific threats and concerns. As the Kentucky Supreme Court has determined, an "individual's interest becomes stronger with regard to personal information the dissemination of which could subject him or her to adverse repurcussions. Such repurcussions can include embarrassment, stigma, reprisal, all the way to threats of physical harm. " Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 [(Ky. 2013)].
Moreover, those records were also submitted to University Police, which intervened in the Jefferson Circuit (Family) Court matter. The University Police specifically elected to keep the witness(es) names from being recorded in their documentation, out of an abundance of caution. Nevertheless, the Human Resources internal documents were subsequently redacted in response to Mr. Schmidt's Open Records Request.
The Supreme Court's opinion in Kentucky New Era notes that the privacy "interest increases as the nature of the information becomes more intimate and sensitive and as the possible consequences of disclosure become more adverse. A person's involvement in any capacity in a criminal investigation poses risks, if disclosed, of embarrassment and stigma, and can easily pose much graver risks as well." Id. at 85.
The University submits that the witness(es) have identified concerns for their personal safety if their identities are revealed. To that end, the University has redacted their identities from the records provided to Mr. Schmidt, which it believes to be in accordance with the [Open Records Act] .
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked the University to provide unredacted copies of the records withheld on the basis of KRE 503 for purposes of in camera review in order to facilitate a correct resolution of this matter. The University promptly complied. 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 privilege are present. 4 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)[(1)] and the attorney-client [privilege] . . . 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."
Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008). 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); 13-ORD-052.
Our in camera review of the documents withheld here on the basis of KRE 503, reveals that all of the pages do not satisfy the required elements. The University withheld only three documents (e-mail threads) for a total of seven pages. A summary of each thread and our analysis of the content appear below:
. November 3-4, 2015, e-mail thread (three pages total) : Mr. Schmidt's November 3, 2015, e-mail directed to Ms. Pawson, referenced his attached request. 5 Ms. Pawson forwarded Mr. Schmidt's request to another employee in Human Resources, Mary Elizabeth Miles, with a brief note. Ms. Miles then forwarded the e-mail to Ms. Shoemaker with no substantive comment included. Even assuming the single brief comment by counsel made upon receiving a copy of the request via e-mail dated November 4, 2015, falls within the parameters of KRE 503, there is no legal basis for denying access to such a request based solely on the fact that a copy was forwarded to counsel along with a brief message directed to Human Resources from Ms. Pawson. The privileged material, if any, must be redacted from this responsive document per KRS 61.878(4). 6 One page of the three is partially duplicative as the University provided copies located in the accounts of both Ms. Shoemaker and Ms. Miles.
. September 23, 2015, e-mail thread originating with Human Resources (three pages total): The September 23, 2015, e-mail directed to Ms. Shoemaker by a University employee, may be properly withheld insofar as it consists of a draft version of a document submitted to Ms. Shoemaker, in her capacity as counsel, for the purpose of review and comment.
. September 23, 2015, e-mail thread originating with Assistant Police Chief Kenneth Brown (one page total): A copy of the September 23, 2015, e-mail forwarded to Ms. Shoemaker by Assistant Police Chief Kenneth Brown is already contained in the record on appeal. Mr. Schmidt may not wish to receive another copy of this responsive document or the November 3, 2015, e-mail that he submitted; however, the question of whether those documents can be properly characterized as responsive and nonexempt is a different question. The copy of the latter e-mail thread is devoid of any comment from counsel and consequently lacks any indication that privileged material is contained therein. Accordingly, this office must conclude that said e-mail does not qualify for protection under KRE 503 and must be released unless the University justifies the withholding by citing another statutory exception among those codified at KRS 61.878(1), per KRS 61.880(1) and 61.880(2)(c), and explains how it applies.
The remaining question is whether the University properly withheld the names of individuals characterized as "complainants and informants" or "witnesses," on the basis of KRS 61.878(1)(a). In resolving this question, 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). As the Kentucky Supreme Court has emphasized, the "unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'"
Beckham v. Board of Education of Jefferson County, 873 S.W.2d, 575, 577 (Ky. 1994), citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records are not open for public inspection. Among those records excluded from application of the Act in the absence of a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a).
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. However, the "clearly unwarranted" standard "tips the scales in favor of disclosure. " 03-ORD-084, p. 4. See 12-ORD-149 (citing 05-ORD-030, wherein the record on appeal was devoid of any facts or evidence that compelled this office to conclude that complainant requested or reasonably expected anonymity in lodging the complaint, and finding that record was equally lacking there), pp. 4-6 for discussion of Kentucky Board of Examiners and its progeny; see also
Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006)(holding that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent" and "case-by-case analysis" is required). Applying this "case-by-case analysis" of the competing interests on the facts presented here validates the University's decision to withhold the names of the complainants/witnesses and their personal information, if any, from the records provided.
In 12-ORD-149 (pgs. 7-10), a copy of which is attached hereto and incorporated by reference, this office had occasion to engage in a thorough analysis of KRS 61.878(1)(a) relative to a complainant's identity. "'[U]nless the [agency] can make a particularized showing that individual complainants' identities were properly withheld, as for example where the complainant requested anonymity or expressed fear of retaliation by the individual against whom the complaint was lodged,'" the Attorney General concluded, "'its reliance on KRS 61.878(1)(a) to support its partial denial'" was misplaced. 12-ORD-149, p. 2, quoting 99-ORD-193 ("the identity of a complainant can be withheld under KRS 61.878(1)(a) where the complainant's privacy interest outweighs the public's interest in disclosure" but a public agency cannot "adopt a policy of blanket nondisclosure"); 07-ORD-199; see also 12-ORD-180 (clarifying that 12-ORD-149 should not be interpreted to stand for the proposition that a request for anonymity is always enough to justify withholding the identity of a complainant regardless of the specific facts or circumstances presented) . Significantly, our holding in both 12-ORD-149 and 12-ORD-180 turned on the absence of a particularized showing to justify redaction of the complainant's identity. The instant appeal differs in this critical respect.
On appeal the University established that complainants who provided Human Resources with information regarding threats of harm allegedly made by Mr. Schmidt against private individuals requested anonymity based on a legitimate concern regarding their personal safety. The records were also submitted to University Police, which intervened in the Jefferson Circuit Court matter involving Mr. Schmidt, but maintained the anonymity of those individuals. All responsive documents were disclosed revealing the specific threats and only the complainants' identities were redacted on the basis of KRS 61.878(1)(a). The documentation provided to Mr. Schmidt, which is attached to his appeal, confirms that fact and the disturbing nature of the reported threats only serves to further validate the legitimacy of the safety concerns which prompted the individuals' requests for anonymity here. As the University correctly observed, the Kentucky Supreme Court has recognized that a private individual's privacy "interest becomes stronger with regard to personal information the dissemination of which could subject him or her to adverse repercussions. Such repercussions can include embarrassment, stigma, reprisal, all the way to threats of physical harm. "
Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013)(reaffirming that ORA forbids "blanket" denials of but characterizing redaction policy of city as "categorical" and thus affirming its withholding of contact information, social security numbers, driver's license numbers, etc . of victims, witnesses, and uncharged suspects appearing in police department's arrest and incident reports). To implicate an individual's privacy interest, "the adverse repercussions of public disclosure need not be severe." Id. Because facts and circumstances have been presented here to justify redaction of the complainants' names on the basis of KRS 61.878(1)(a), this office affirms the University's partial denial. Compare 12-ORD-180.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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.
Footnotes
Footnotes
1 Mr. Schmidt alleged that his due process rights were violated as the University did not interview him during the "personnel or police action." Such issues are beyond our scope of review under KRS 61.880(2)(a). See 05-ORD-089.
2 Mr. Schmidt submitted his request electronically and Records Custodian Sherri Pawson responded in kind. Although e-mail is not included among the permissible methods of submitting a request identified at KRS 61.872(2), a public agency can waive this requirement expressly or by a course of conduct, by responding without objection, as the University did here by e-mail dated November 6, 2015. 07-ORD-064, p. 2; 12-ORD-149. However, the University was obligated under KRS 61.880(1) to not only issue a response within three business days, but also provide timely access to all existing responsive documents or properly invoke KRS 61.872(5), if appropriate, by citing that provision and providing a "detailed explanation" of the cause for delay and specifying the date when all existing nonexempt documents would be available.
Ms. Pawson initially advised that she had asked the "appropriate university officials to identify all responsive records and send them to me for review." Because his request implicated records "from several departments and named individuals," Ms. Pawson advised Mr. Schmidt that "it will take some time to gather and review the records." Ms. Pawson expected to have a response "next week." Even assuming the University's explanation was adequately detailed, this office has consistently recognized that vague estimates of how long the delay will be do not comply with KRS 61.872(5) and its response was deficient in this regard. See 12-ORD-105.
3 PNG is the acronym for Persona Non Grata .
4 The attorney-client privilege extends to confidential communications:
(1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer.
(2) Between the lawyer and a representative of the lawyer;
(3) By the client or a representative of the client or the client's lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein;
(4) Between representatives of the client or between the client and a representative of the client; or
(5) Among lawyers and their representatives representing the same client.
See 06-ORD-125, pp. 3-10.
5 Mr. Schmidt's actual request is, of course, a publicly accessible record, a copy of which is already contained in the record on appeal but was not included as the referenced attachment. Records Series U0123 on the State University Model Retention Schedule governs a "Request to Inspect Public Records (Open Records request)" and specifies that no access restrictions apply to such documents.
6 KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for inspection."