Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Reporter Brad Bowman, The State Journal , initiated this appeal by letter dated July 19, 2016, challenging the denial by the City of Frankfort ("City") of his June 11, 2015, request for "access to emails or memos between City Manager Tim Zisoff, City Attorney Rob Moore, Mayor William May and Police Chief Jeff Abrams between June 5, 2015 and June 11, 2015 regarding Police Chief Abrams' Facebook and Twitter post on the Frankfort City Police's Facebook page and Twitter feed." In a timely written response, City Clerk Chermie Maxwell advised Mr. Bowman that his request was denied as the records "are exempt from release, as the documents are preliminary documents and are therefore not subject to release pursuant to KRS 61.878(1)(i)." Alternatively, the City Clerk advised that said records "are also exempt from release pursuant to the attorney/client privilege since the records are communications involving City Attorney Rob Moore concerning this matter." 1 On appeal Mr. Bowman observed that Chief Abrams' Facebook post was "later taken down, but there was no reprimand or personnel action documented in Abrams' personnel file over the matter." 2
Upon receiving notification of Mr. Bowman's July 19, 2016, appeal, City Attorney Robert C. Moore responded on behalf of the City. Mr. Moore initially argued that Mr. Bowman's appeal was untimely but acknowledged that KRS 61.870, et. seq . "does not appear to provide a deadline by which an appeal of a denial" of a request made under that statute must be filed. The City nevertheless maintained that, "consistent with KRS 61.880(5), the Attorney General should require an appeal to be filed within thirty (30) days of receipt of the denial of the request." However, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002) (citation omitted). In
Dept. of Revenue, Finance and Administration Cabinet v. Wyrick, 323 S.W.3d 710, 713 (Ky. 2010) the Kentucky Supreme Court rejected this argument, holding that an Open Records Appeal to the Attorney General was not time-barred and that "the omission of a deadline for a 'complaining' party to forward the request and the denial to the Attorney General is intentional." Following Wyrick , in 16-ORD-005 this office specifically noted that "[t]he Open Records Act gives time limitations for various actions to be taken, but imposes no deadline on filing an appeal to the Attorney General." 16-ORD-005, p. 3; 14-ORD-040. Accordingly, this office must address the substantive issues.
In reiterating the City's reliance on the attorney-client privilege, codified at KRE 503(b), Mr. Moore advised that he was "appointed as the City Solicitor for the City of Frankfort on or about February 9, 2014, and is the 'general law officer and legal counsel of the city. (See City of Frankfort Ordinance 31.37(B)).'" Thus, he is "required 'to advise the Board of Commissioners, the City Manager and all other city officers and employees in all legal matters pertaining to their municipal duties or affecting the interests of the city. . . . (See City of Frankfort Ordinance 31.37(C)).'" Citing
Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), Mr. Moore asserted that "by the very nature of his request, Mr. Bowman seeks to obtain documents that contain communications between the City Attorney and his clients, which are subject to the attorney-client privilege." Likewise, Mr. Moore reiterated the City's original position that e-mails responsive to Mr. Bowman's request are protected under KRS 61.878(1)(i), citing
Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006), as the requested e-mails contain "preliminary communications between the City Manager and the Chief of Police and other City officials concerning an internal city matter, and these e-mails did not reflect a final decision or final action of the City of Frankfort."
Unable to determine from the record on appeal whether all of the records in dispute satisfied all of the elements of KRE 503 or, alternatively, whether any of those records fell within the parameters of KRS 61.878(1)(i) and, if so, were ultimately adopted, in whole or in part, as the basis of the agency's final action regarding the matter (including the decision to take no action), 3 this office asked for additional information per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and requested to review the records in camera . The City promptly complied with our KRS 61.880(2)(c) request. Before addressing the accessibility of the other e-mails provided, this office must clarify that any e-mails generated after the City received Mr. Bowman's June 11, 2015, request, consisting of internal communications regarding the manner in which said request should be handled procedurally, are not responsive and their content will therefore not be further analyzed. See 09-ORD-203 (reaffirming that standing requests are improper as the Act only regulates public access to existing records); OAG 90-112; OAG 91-78. No right of inspection attaches to "records that have not yet come into existence" as of the request date. 99-ORD-155, p. 3; 06-ORD-171; 13-ORD-001; 15-ORD-130. Accordingly, our analysis will focus exclusively on the (partially duplicative) seven pages in dispute.
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. See 01-ORD-246; 10-ORD-177. 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); 01-ORD-246. KRE 503(b) only applies when a public agency establishes 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)(recognizing the privilege "must be strictly construed and given no greater application than is necessary to further its objective"); 16-ORD-055 (no basis for withholding an e-mail simply because a copy was forwarded to counsel even assuming her brief comment upon receipt of the e-mail could be properly withheld under KRS 61.878(4) and KRE 503); 12-ORD-075; 13-ORD-052. This office is not permitted to reveal the content of the subject e-mails but our in camera review did not confirm that all seven pages withheld satisfy all of the elements of KRE 503(b). An exchange between Chief Abrams and City Manager Zisoff alone, for example, does not satisfy the initial requirements of KRE 503(b); likewise, the subsequent exchanges were "devoid of any comment from counsel," and lacked "any indication that privileged material is contained therein." 16-ORD-055, p. 6. Accordingly, the question becomes whether KRS 61.878(1)(i) applies to any of the records withheld.
Among those records excluded from disclosure are those identified at KRS 61.878(1)(i), upon which the City relied, and (1)(j). 4
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577-578 (Ky. 1994);
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of KRS 61.878(1)(i) (and (j)) in a variety of contexts but little has changed regarding the relevant analysis. See
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983)(recognizing that "documents defined in subsections [(i)] and [(j)] which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records . . ." but unless those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded");
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001);
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013)(holding that certain e-mails fell within KRS 61.878(1)(i) and (j), and retained their preliminary character as the subject meeting did not conclusively resolve the ultimate issue and "piecemeal disclosure along the path of the decision making process is not mandatory"); 99-ORD-220; 11-ORD-052; 15-ORD-189. These authorities remain controlling; however, the final action inquiry under KRS 61.878(1)(i), the City's alternative basis for denial, is moot rather than determinative on the facts presented. 06-ORD-135, p. 12.
With regard to KRS 61.878(1)(i) specifically, this office has long recognized that insofar as it extends protection to "correspondence to private individuals," that exception is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168, p. 2 (emphasis added); 04-ORD-125. If a record cannot be properly characterized as correspondence with a private individual , "the question of whether final action has been taken by the agency becomes irrelevant." 99-ORD-220, p. 7. Simply put, "we do not reach the second part of the KRS 61.878(1)(i) analysis, requiring final action of a public agency, if [,as in this case,] the first part of the analysis, requiring that the disputed record consist of correspondence [with a private individual], is not met." Id. See 14-ORD-017.
Our in camera review of the subject e-mails revealed that none can be properly characterized as either "drafts" or "notes" according to the "common and approved uses" of those terms. KRS 446.080(4). Nor does the City make that claim. However, the final clause upon which the City relied is facially inapplicable. See 04-ORD-244 (holding that three Athletic Directors of public schools were public employees, not private citizens, and correspondence between them and KHSAA was not exempt under KRS 61.878(1)(i)); 09-ORD-041 (KRS 61.878(1)(i) does not extend to correspondence exchanged between representatives of public agencies. . . .); 13-ORD-051 (KRS 61.878(1)(i) was inapplicable to communications between two public officials). Accordingly, the City's reliance on KRS 61.878(1)(i) was also misplaced. Unless the City is able to satisfy its burden of justifying the denial per KRS 61.880(2)(c) and 61.880(1) on a different statutory basis, in writing, the records must be disclosed.
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 Pursuant to KRS 61.880(1), a public "agency 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." The City's initial response was procedurally deficient insofar as it contained no reference to either KRS 61.878(1)(l) or KRE 503(b)(the attorney-client privilege), the former of which incorporates the latter into the Open Records Act.
2 On appeal the City confirmed that the City Manager "reviewed this issue with the Chief and there was no disciplinary action taken so there is no record in the Chief's personnel file."
3 See 11-ORD-052 (appellant failed "to recognize that documents retain their preliminary character unless and until adopted as the basis or a part of the final action by the agency regardless of how much time has gone by" whereas agency failed "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").
4 KRS 61.878(1)(i) and (j), respectively, exclude from disclosure:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency .
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
(Emphasis added.) The City's argument ("preliminary communications" that "did not reflect a final decision or final action of the City of Frankfort") is premised upon the italicized language.