Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Frankfort violated the Open Records Act in the disposition of State Journal reporter Brad Bowman's July 29, 2016, request for "any emails between City Manager Tim Zisoff and the City Commission specifically for June 17, 19, 22 and 29 of 2016." For the reasons stated below, we find no substantive violation of the Act.
On August 8, 2016, City Clerk Chermie Maxwell responded to Mr. Bowman's request:
Certain records were withheld from release because they are subject to the attorney client privilege. Other records were withheld from release because they have a prospective location of a business where no previous public disclosure has been made of the business' interest in locating or expanding in the City of Frankfort. (See KRS 61.878(1)(d).) Records that are preliminary drafts or correspondence with private individuals which was not intended to give notice of final action of a public agency were also not released. (See KRS 61.878(1)(d).) Finally, records that contained preliminary recommendations and preliminary memoranda were also not released. (See KRS [61.]878(1)(j).)
We note that August 8 was six business days after the request was received. With no explanation given for the delay, we must find a procedural violation of KRS 61.880(1), which requires a public agency to issue a written response within three days from receipt of an open records request, excluding weekends and legal holidays.
Mr. Bowman appealed on August 22, 2016, contending specifically that the city had not established the necessary elements to invoke the attorney-client privilege. On September 9, 2016, city attorney Robert C. Moore responded with the following information:
One email from City Manager Tim Zisoff to the City Commission dated June 22, 2016, was not provided to Mr. Bowman in response to his request of July 29, 2016, on the basis of the attorney/client privilege. Attached to Mr. Zisoff's email was a letter from the City Attorney to the City Manager that concerned an ongoing legal issue under discussion by the City. . . . The letter provided a detailed analysis of the legal issue addressed in the letter, and included a legal conclusion. The letter was intended to be confidential and was only provided to those individuals with a specific and necessary involvement in the issue.
The city has provided this office with a copy of the record in question for in camera review pursuant to KRS 61.880(2).
The Kentucky Court of Appeals has recognized that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] by the Kentucky General Assembly." Hahn v. University of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). The court reasoned as follows:
[The attorney-client privilege, codified at KRE 503,] recognizes that sound legal advice and advocacy serve vital public purposes and that such advice and advocacy depend upon a guarantee of confidentiality between attorney and client. Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981).
KRE 503(b) provides that:
KRE 503(a)(5) states that a communication is deemed
The privilege attaches to confidential communications made for the purpose of facilitating the process of rendering professional legal services to a client; counsel must be acting in the course and scope of employment for the client, and the communication must pertain to the matter within the course and scope of that employment . KRE 503(a)(2); Underwood and Weissenberger, Kentucky Evidence 2001 Courtroom Manual, § 503 (2000).
Hahn at 775-776 (emphasis added).
The decisions of this office have also consistently held that the attorney-client privilege is incorporated into the Open Records Act through KRS 61.878(1)(l). In 97-ORD-127, we stated:
KRS 61.878(1)(l) . . . operates in tandem with KRE 503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege, [which] consists of three elements: The relationship of attorney and client, communication by or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed . Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3rd ed. 1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2nd Cir. 1989). Its purpose is to [e]nsure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. . . . The privilege extends to communications from attorney to client " if they constitute legal advice , or tend directly or indirectly to reveal the substance of a client confidence." Kentucky Evidence Law Handbook at § 5.10 citing United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objective." Kentucky Law Evidence Law Handbook § 5.10.
(Emphasis added.) "KRE 503(c) presumes that lawyers have authority to assert the privilege on behalf of clients. It is to be expected that lawyers will claim the privilege for clients in the absence of explicit directions to the contrary." Kentucky Evidence Law Handbook, supra , at § 5.10.
After reviewing the disputed record in camera , we find that Mr. Moore's description is accurate. The e-mail from Mr. Zisoff was merely an internal forwarding of a message sent to him and the police chief by Mr. Moore which, based on our review, was a confidential communication providing legal analysis and advice. All recipients were necessarily involved representatives of Mr. Moore's client, the City of Frankfort, and there is no indication that confidentiality was compromised by communication to other parties. 97-ORD-127. This communication was therefore protected by the attorney-client privilege under KRE 503, as incorporated into the Open Records Act by KRS 61.878(1)(l). Accordingly, the city could properly withhold the e-mail.
We do, however, find additional procedural violations in connection with the Department's invocation of the attorney-client privilege. The city's initial response, dated August 8, 2016, was procedurally deficient insofar as it did not "include a statement of the specific exception authorizing the withholding of the record," namely subsection (1)(l) of KRS 61.878, as required by KRS 61.880(1). Furthermore, the city failed to describe the records it was withholding on the basis of the attorney-client privilege and give "a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1); see 12-ORD-062. Substantively, however, we find no violation of the Open Records Act.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.