Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Dr. Lachin Hatemi initiated this appeal challenging the February 2, 2016, denial by the Kentucky Medical Services Foundation, Inc. (KMSF) of his February 1, 2016, request for "[a]ny agreements between KMSF, University of Kentucky and Coldstream Laboratories Inc. between January 2010 and January 2015." KMSF maintained that it was not a "public agency" for purposes of the Kentucky Open Records Act "or otherwise," but professed to be "transparent as to matters where there is a legitimate public interest or a request from a bona fide media outlet." In addition, KMSF advised that it would not provide information "protected by applicable law, information that would not be subjected to the Kentucky Open Records Act if we were a public agency. . . ." KMSF further noted that "it is our policy not to produce information that is more appropriately the subject of discovery in a pending lawsuit in which KMSF is a party or which involves [an] entity to which KMSF provides services." 1
On appeal Dr. Hatemi observed that KMSF was deemed a "public agency" within the meaning of KRS 61.870(1) in a recent Open Records Decision and is therefore subject to provisions of the Open Records Act. Dr. Hatemi relied upon 15-ORD-205 (In re: Lachin Hatemi/Kentucky Medical Services Foundation, Inc., rendered November 6, 2015)(holding that KMSF is a "public agency" pursuant to KRS 61.870(1)(j) as it was "established, created, and controlled by a public agency" ). Upon receiving notification of Dr. Hatemi's appeal from this office, attorney Harry L. Dadds responded on behalf of KMSF. As in 16-ORD-057, KMSF first argued that until its appeal of that ORD to Fayette Circuit Court has been resolved, its ORA status remains the same as it was prior to 15-ORD-205. Here, as in 16-ORD-057, this office respectfully disagrees and must decline to hold the instant appeal in abeyance pending resolution of the pending lawsuit as requested. "Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected" in 15-ORD-205. 07-ORD-132, p. 7; 06-ORD-230; 08-ORD-049. Holding otherwise "would result in conflicting open records decisions issuing from this office the outcome of which would be dependent upon the circuit in which a similar dispute arose or might arise, and, within the same circuit, where co-equal divisions of the court reach conflicting conclusions. To hold thus promotes certainty in the application of established legal principle . . . ." 07-ORD-132, p. 7; 11-ORD-204 (conflicting opinions from the same circuit "amply illustrate why this office has taken the approach of continuing to follow existing precedent, . . . until a published opinion by either the Supreme Court or the Court of Appeals to the contrary is rendered"). The analysis contained in 15-ORD-205 remains controlling as to KMSF's first argument. Based upon the following, this office must also conclude that KMSF has failed to satisfy its burden of justifying the denial of Dr. Hatemi's request per KRS 61.880(1) and 61.880(2)(c).
KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 12-ORD-211. "Whereas in most disputes both sides have more-or-less equal access to the relevant facts, so that factual assertions and legal claims can be adversarially tested," the Kentucky Supreme Court has observed, "in ORA cases only the agency knows what is in the records."
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). The Court suggested that a public agency "should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim and the court to assess it." Id. at 852. See 14-ORD-039; 15-ORD-003.
On appeal KMSF argued that all documents responsive to Dr. Hatemi's request "are exempt from disclosure under the Act as being subject to the attorney-client privilege, constituting preliminary drafts, and/or containing information that is personal in nature or generally recognized as confidential or proprietary. As such the information is exempt from release under KRS 61.878(1)(c)1; (i) or (l) respectively." KMSF made no attempt to identify the documents with specificity or explain how any of the cited exceptions applied. Instead, KMSF relied upon the affidavit of Dr. Marcus E. Randall, which essentially restated its earlier arguments, generally advising that responsive documents "are agreements entered into with attorneys and/or third party consultants that are subject to the attorney-client privilege, personal in nature, subject to confidentiality provisions similar to trade secrets and/or constitute drafts and preliminary memoranda."
KMSF merely paraphrased the language of KRS 61.878(1)(a), (i), and (j) without sufficiently identifying the documents or portions thereof to which said exceptions applied or providing a detailed explanation of how those statutory exceptions applied to same; likewise, the agency referenced KRS 61.878(1)(l), but failed to cite KRE 503, and made no attempt to describe any of the documents withheld on that basis or establish that all of the necessary elements were present as required to justify invocation of the attorney-client privilege. Bearing in mind that KMSF has the burden of justifying its denial under KRS 61.880(1) and 61.880(2)(c), the Attorney General must conclude that KMSF's initial and supplemental responses "lacked the requisite specificity and thus were both procedurally and substantively deficient." 12-ORD-211, pp. 7-8.
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 privileges are present. See 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)[(l)] and the attorney-client [privilege] simply because it is represented by an attorney in the matter.'" 01-ORD-246, p. 17(citation omitted). 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). KMSF has not established that any of the responsive documents in their entirety fall within the parameters of KRE 503(b). In so holding this office is not implying that KMSF cannot successfully build a case for withholding some of the documents on that basis, only that it has failed to provide sufficiently detailed information to substantiate its position thus far. See 11-ORD-108.
With regard to application of KRS 61.878(1)(a), this office refers the parties to pages 3-4 of 16-ORD-057, following
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992) and
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994), for the relevant analysis. Here, as before, "[w]ith no detailed explanation of the privacy interest at issue, we must find that KMSF has not met its burden of proof under KRS 61.880(2)(c) to sustain its invocation of KRS 61.878(1)(a), and therefore the exemption cannot be relied upon." 16-ORD-057, p. 4. Even assuming that portions of the responsive documents may contain personal information, the nondisclosure of which can be justified under these authorities, KMSF is required under KRS 61.878(4) to "separate the excepted and make the nonexcepted material available for examination."
The record also lacks adequate information to justify KMSF's belated invocation of KRS 61.878(1)(i) and implicit reliance on 61.878(1)(j)(Dr. Randall's affidavit). Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983);
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) ("investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action");
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (2013). Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status to the extent adopted by the agency as a basis for its final action. See OAGs 83-405 and 89-69; 99-ORD-220; 07-ORD-156; 10-ORD-075; 11-ORD-052. The apparent position of KMSF "fails to recognize that our analysis does not end with a determination that documents are preliminary in character, but instead also requires a determination of whether such documents, or portions thereof, were ultimately adopted as the basis or a part of the agency's final action. " 11-ORD-052, p. 3. Assuming that some of the documents qualify as "drafts, notes, or correspondence with private individuals? ." or "preliminary recommendations, and preliminary memoranda," which is unclear from the record, particularly given that Dr. Hatemi requested "agreements," those records or portions thereof which formed the basis of the agency's final action, i.e. , agreement, etc., whether explicitly or implicitly, forfeited their preliminary characterization and must be separated for disclosure per KRS 61.878(4).
KMSF also referenced KRS 61.878(1)(c) 1. on appeal, which excludes from application of the Open Records Act "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records[.]" To successfully invoke this exception, a public agency must establish that the public records in dispute satisfy all three of the required elements. 03-ORD-064, p. 5; 10-ORD-150. See KRS 61.880(1) and 61.880(2)(c). In the absence of any proof that certain records in dispute were confidentially disclosed to KMSF or required to be disclosed to it, are generally recognized as confidential or proprietary, and are of such a character that disclosure would provide an unfair commercial advantage to competitors of the private corporation, this office must conclude that KMSF has failed to substantiate its position. See 11-ORD-076 (copy enclosed), following
Marina Management Service, Inc. v. Commonwealth of Kentucky, Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995) and
Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766, 768 (Ky. 1995).
Finally, as in 16-ORD-057, this office finds that KMSF has not presented "clear and convincing evidence" that Dr. Hatemi's request is unreasonably burdensome or made "for purposes of harassment," i.e. , intended to disrupt other essential functions of KMSF, as required to justify its denial on the basis of KRS 61.872(6), which it also invoked for the first time on appeal. See 16-ORD-057, pp. 4-5. The subject request for specified agreements between the identified parties from a certain time period is not so burdensome in scope as to alter the result here; the only additional fact offered in support of this argument by KMSF is that Dr. Hatemi has made "several requests" following issuance of 15-ORD-205, "each of which requires KMSF to devote significant resources to research and respond." However, "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden."
Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008). KMSF improperly relied on KRS 61.872(6) in denying the request.
Either party may appeal this decision 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 In Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001)(expressly agreeing with decisions of the Attorney General holding that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation"), the Court of Appeals rejected this position. Citing Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Court reaffirmed the principle that the General Assembly "'clearly intended to grant any member of the public as much right to access to information as the next.'" Quoting from decisions by the Attorney General holding that "[a]lthough there is litigation in the background of the open records request . . ., the requester . . . stands in relationship to the agency under the Open Records Law as any other person. . . ." Stewart at 863. See 07-ORD-180.