Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Lachin Hatemi appeals the University of Kentucky's denial of his April 16, 2016, request for "[a]ny documents/agreements/contracts signed between University of Kentucky and [Kentucky Medical Services Foundation] regarding the 'Joint Defense Arrangement' between UK and KMSF." In a timely written response, the University advised Dr. Hatemi that "no such document exists. . . ." Shortly thereafter, Dr. Hatemi initiated this appeal. Noting that the University of Kentucky referenced a joint defense arrangement between the University and Kentucky Medical Services Foundation in an earlier open records appeal, he asserted that the University contradicted itself by "admit[ting] the existence of this 'joint defense arrangement (agreement)'" and later "stating that such document does not exist."
In response, the University advised this office that, "[a]lthough reasonably certain there was no written record establishing the common interest privilege between [itself] and KMSF," attorneys for both agencies searched their files for a responsive record. That statute yielded no results. It was the University's position that, "h]aving made a good faith search for the records and concluded the records do not exist, the University has met its statutory obligations." We agree.
In 15-ORD-210, this office determined that the University's response to an inmate's request for records was deficient "insofar as it did not offer any explanation for the nonexistence of the records being sought notwithstanding the fact that certain of the records' existence [could] be presumed in light of existing legal authority mandating their creation." At page 3 of that decision, we observed:
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), however, public agencies must offer some explanation for the nonexistence of the requested records at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231.
Past decisions of this office have recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable." 11-ORD-074, p. 2; 12-ORD-195. The agency can overcome this presumption by explaining why the record does not exist. Id. In Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), the Kentucky Court of Appeals approved this position, declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence. " See 12-ORD-195. Where, as in this appeal, "the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation," this office found that a public agency's response "was deficient, inasmuch as it offered no explanation for the nonexistence of the record(s) in dispute notwithstanding legal authority mandating creation of such a record(s)[.]" 11-ORD-111, pp. 3-4; 11-ORD-074, pp. 3-5; compare 12-ORD-209.
15-ORD-210 is legally and factually distinguishable from this appeal. Dr. Hatemi has identified no statute, regulation, rule, or case law requiring the creation of a written agreement documenting a "joint defense arrangement," and we have located none. Accordingly, there is no presumption that a written agreement exists.
In 16-ORD-113, also involving the University, the Attorney General briefly analyzed the "joint defense" or "common interest" exception to the rule that the attorney-client privilege is waived if privileged communications are made in the presence of a third party. We did not address the necessity of a written agreement memorializing this arrangement and our efforts to locate any such requirement for purposes of this appeal were not fruitful. The leading case on "the joint defense/common interest privilege," Broessel v. Triad Guaranty Insurance Corporation, 238 F.R.D. 215, 219 (W.D. Ky. 2006), recognized that "[m]ore and more, to protect the joint defense privilege, parties enter into written joint defense agreements in an effort to assure that information shared among the attorneys for each of the defendants will remain privileged despite the sharing." From this statement we can infer that such arrangements are commonly not reduced to writing and that no legal requirement exists mandating written agreements.
Because there is no statute, regulation, rule, or case law mandating a written joint defense agreement, and because the University conducted an adequate but unsuccessful search for a written agreement and properly notified the requester that no responsive record exists, we find no violation of the Open Records Act based on the University's denial of Dr. Hatemi's request. The University is not obligated to explain the nonexistence of a record that does not presumptively exist.
Either party may appeal this decision 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.