Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether a request to the Montgomery County Board of Education ("Board") created an unreasonable burden or was intended to disrupt the essential functions of an agency, and whether the Board violated the Open Records Act in withholding emails involving a third party on the grounds of attorney-client and work product privileges. We find that the request does not create an unreasonable burden and is not intended to disrupt the essential functions of the Board. We also find that the Board did not violate the Open Records Act in withholding emails between Board counsel and other parties which were not in the possession of or used by the Board, but did violate the Open Records Act in withholding emails concerning open records requests.
Background
Dr. Brian Wallace submitted an open records request to the Board on Aug. 25, 2016. Dr. Wallace requested "all written communications between (to or from) any Board of Education of Montgomery County member, including Michelle Williams, and Jacob Payne from January 1, 2016 to present. Also include the dates of September 1, 2015 to October 15, 2015." Dr. Wallace further specified that "this includes any public business correspondence or business conducted on private email accounts, such as those of Alice Anderson . . ., Kelly Johnson . . ., or any other person referred to or mentioned above."
The Board responded to the appeal on Sept. 6, 2016, providing a link to documents meeting the search criteria. The Board further stated:
Personal addresses, phone numbers, personal email addresses, and personal medical information were redacted due to their exemption as personally identifiable information under KRS 61.878(1)(k) .
Other documents currently meeting the search criteria fall under records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. (KRS 61.878(1)(l) and KRE Rule 503 Lawyer-client privilege).
Documents requested from the private email accounts of board members are exempt from production pursuant to KRS 61.878(1)(a) as they constitute a public record "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
It is important to note that the school district has not, "prepared, owned, used, possessed, or retained the requested records. . . the Open Records Act only applies to records which are in existence, and in the possession or control of a public agency. " (Citations omitted.)
Dr. Wallace initiated this appeal on Sept. 9, 2016. Dr. Wallace objected to the Board's assertion of attorney-client privilege on the grounds that "the requested communications would be either: 1) not between lawyer and client, and/or 2) not exclusively between lawyer and client." 1
The Board responded to the appeal on Sept. 29, 2016. The Board began by stating:
This matter arises out of a pending civil lawsuit against the Montgomery County School Board and a former Superintendent . . . by the wife of Dr. Brian Wallace. . . . Since July 1, 2015, Dr. Brian Wallace has filed at least 33 open records requests which resulted in more than 290,000 potential documents being discovered. Out of those requests filled, Dr. Wallace received more than 1,390 documents totaling more than 3,100 pages. . . .
Since July 1, 2015, these 33 open records requests have resulted in an average of one every two weeks. These 33 requests have taken, at least, part or all of 75 days of Superintendent Thompson's time and attention to review and respond. . . .
Dr. Thompson has responded to each open records request . . . . Very few of Dr. Wallace's voluminous and overly burdensome open records requests have been objected to or denied. At times, Dr. Thompson has helped Dr. Wallace refine some of his requests to better describe documents requested by Dr. Wallace.
The Board provided a log of Dr. Wallace's requests and the Board's response to them, beginning with a request received on July 15, 2015 through Sept. 13, 2016.
Regarding the issues raised in this appeal, the Board stated:
First, the sheer volume of these requests and the voluminous number of potential documents, has placed, and is placing, an unreasonable burden on the school district. Second, Dr. Wallace's requests for copies of attorney-client correspondence have been properly denied because such correspondence is protected from disclosure by law.
The Board also asserted attorney-client and work product privileges on the grounds that "the requested documents pertained to ongoing litigation and were within the scope of employment for the client."
On Oct. 4, 2016, this office requested to view the documents for which the Board claimed attorney-client and work product privileges under KRS 61.880(2)(c). The Board complied with that request on Oct. 12, 2016. 2 On Oct. 13, 2016, the Board sent a follow-up response in which the Board's counsel stated that "Dr. Wallace's open records request relates to communication between a private individual and myself. . . . The Board's current Superintendent, as custodian of records, does not possess the records at issue. . . . All records that were in the possession of the custodian have been disclosed." The Board's counsel reasserted its claims of attorney-client and work product privileges.
I. Unreasonable Burden or Intent to Disrupt Essential Functions of a Public Agency .
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In 11-ORD-173, we noted that "KRS 61.872(6) 'is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency.'" 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).
In this case, the Board did not assert unreasonable burden in its initial response to Dr. Wallace's request, or provide any reason why this particular request is unreasonably burdensome. Instead, the Board argues on appeal that "the volume and frequency of Dr. Wallace's repeated requests are intended to disrupt the essential functions of the school district. " As additional evidence of an intent to disrupt the functions of an agency, the Board provides an email from Dr. Wallace which it describes as a "proposal to settle ongoing litigation," n3 citing to 15-ORD-015. 4
Based on the log provided by the Board, Dr. Wallace initially sent requests received on July 15, 2015 covering 18,690 emails, and on Aug. 13, 2015 covering over 270,000 emails. The Board denied both of those requests on the grounds of unreasonable burden. A third request received on Aug. 17, 2015 was also denied on the grounds of unreasonable burden because it required searching all Board employees' email accounts, and the system returned an error message that the number of accounts was too great to search. Of the remaining requests, only four resulted in more than the production of more than one hundred documents or pages. While Dr. Wallace's initial requests may have been voluminous, his subsequent requests have been more narrowly tailored, and the Board has cooperated with Dr. Wallace in attempting to narrow down his requests. Further, the volume of thirty-three requests over a fourteen-month period is not by itself sufficient to demonstrate an intent to disrupt the functions of an agency. See 00-ORD-072 ("We do not believe that this constitutes sufficient empirical evidence to support a claim under KRS 61.872(6), where the record demonstrates a total of only thirty requests in twenty months.").
While we recognize that "there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6)," 00-ORD-072, although the evidence is mounting, we do not find that point to be reached yet. In 15-ORD-015, we found the standard of intent to disrupt the essential functions of an agency was met based on the combination of the following factors:
the number and partially duplicative nature of the requests, the volume of records implicated and the necessity of redacting information protected under federal and state law, his previous failure to promptly render payment for copies provided in response to a request(s), and his willingness to discontinue making requests in exchange for a large sum of money . . . .
The records before us indicates that while Dr. Wallace's initial requests were voluminous, his subsequent requests have been comparatively reasonable and not duplicative, there are no allegations of his failure to pay for records, and he has not requested a large sum of money. Accordingly, at least at this point, we do not find that the request in this appeal places an unreasonable burden on the agency, or that Dr. Wallace's repeated requests are intended to disrupt the official functions of an agency.
II. Possession or Use by the Board, Attorney-Client Privilege, and Work Product Privilege
The Board argues that "Dr. Wallace's open records request relates to communication between a private individual and myself. . . . The Board's current Superintendent, as custodian of records, does not possess the records at issue." The Board also asserts attorney-client and work product privileges for the emails. We start with the threshold issue of whether the documents are in the possession of or used by the Board. KRS 61.870(2) provides that "'public record' means all . . . documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " A private attorney is not a public agency:
A private attorney . . . does not fall within the definition of "public agency" codified at KRS 61.870(1), nor can the requested records properly be characterized as "public records" subject to inspection pursuant to KRS 61.870(2) since the records are not "prepared, owned, used, in the possession of or retained by a public agency. "
07-ORD-114. However, mere possession by an agency's attorney does not deprive an otherwise public record of its status. "It is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " 05-ORD-007. "Public records in the custody of a private agent, or that are otherwise secreted away on private premises, are subject to public inspection unless otherwise exempt. " 06-ORD-223. "An agency's attorney holds such records at the instance of and as custodian on the agency's behalf." 05-ORD-007.
While we cannot disclose the contents of the emails provided to us for in camera inspection, a review of the emails provided indicates that they all involve Jacob Payne. Several of the emails are informational correspondence from Payne to Williams, counsel for the Board; based on the record before us, they do not appear to have been possessed or used by the Board. Several of the emails are informational correspondence from Payne to Williams and Board member Alice Anderson's personal email address. These emails also do not appear to have been possessed or used by the Board. Several emails involve open records requests. One of these requests was made by Payne to the Board via Williams on Mar. 11, 2016, and one was made from Payne to Superintendent Thompson on Aug. 16, 2016. One was made by Payne to Marcie Lowe at the Education Professional Standards Board on Apr. 12, 2016, and does not appear to have been sent to Williams or the Board, but is in the possession of Williams. The open records requests sent to the Board via Williams or Thompson and their responses are public records in the possession of the board. The open records request to Lowe, although it is in the possession of Williams, is not in the possession of the Board.
Regarding the Board's assertion of attorney-client privilege, KRS 61.878(1)(l) exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." "The protections generally afforded by the attorney-client privilege have been recognized and incorporated into the statute by the Kentucky General Assembly."
Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. Ct. App. 2001). "The attorney-client privilege attaches to a confidential communication 'made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]; the client, the client's representatives, the lawyer, or the lawyer's representatives.'"
The St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 776 (Ky. 2005). However, "revelation of the statements to a third party who is neither a representative of the client or the attorney would amount to a waiver of the privilege."
Collins v. Braden, 384 S.W.3d 154, 160 (Ky. 2012). See also 16-ORD-113 ("The attorney-client privilege is generally waived if communications are made in the presence of a third party. "). The presence of Payne, as a third party, waives any claim of attorney-client privilege by the Board for the emails.
Regarding the Board's assertion of work product privilege, CR 26.02(3)(a) provides the basis for the work product privilege in Kentucky. "Records which are the work product of an attorney prepared or collected in anticipation of litigation or when advising a client are not discoverable under CR 26.02 and, therefore, may be withheld under the Open Records Act. " 07-ORD-147. Kentucky courts use a two-step analysis to determine work product. "First, the court must determine whether the document is work product because it was prepared 'in anticipation of litigation. ' . . . Second . . ., the court must determine whether the requesting party has a 'substantial need' of the document and is unable to obtain the 'substantial equivalent' without 'undue hardship.'"
Duffy v. Wilson, 289 S.W.3d 555, 559 (Ky. 2009). 5 Applying this analysis, it does not appear from a review of the emails that any of them were prepared in anticipation of litigation. The emails are routine informational correspondences or open records requests from a third party to counsel for the Board, Board representatives, or other state educational officials. They do not contain any substantive mental impressions or legal theories of an attorney or other Board agent concerning litigation. Accordingly, we do not find that any of the emails are protected by attorney work product.
In withholding the emails documenting open records requests from Payne to the Board via Williams or Thompson, the Board violated the Open Records Act. The Board did not violate the Open Records Act in not providing the open records request from Payne to Lowe, and the informational correspondences between Payne, Williams, and Anderson's personal email address, as they do not appear to have been possessed or used by the Board.
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 proceedings.
Footnotes
Footnotes
1 Dr. Wallace also attached "part of an email thread that was redacted in its entirety," and while noting that "personally identifiable information, such as a private email address, may be redacted . . . . the entire email thread should not be . . . ." The Board's response to the appeal indicated that "the custodian later provided an unredacted copy of the email which was initially partially redacted."
Dr. Wallace further objected that "when asked what specific General Assembly actions are being referred to, the response was that I was asking for information and not records, and therefore a response to my question was not required and would not be provided. . . . I believe that they are obligated to provide the 'specific' grounds for denial . . . ." However, nothing provided with Dr. Wallace's appeal related to this objection. 40 KAR 1:030 § 1 provides that "the Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." Regardless, the Board's response to the request stated that it was relying on KRS 61.878(1)(l) and KRE 503.
2 Under 40 KAR 1:030 § 3, those documents have been destroyed concurrent with the issuance of this decision.
4 In 15-ORD-015, the requester offered to stop submitting open records requests in exchange for a payment of either $ 500,000 or $ 1,000,000. Id. at n. 3.
5 Work product protection is waived only if disclosure to a third party substantially increases the risk that it will be obtained by an adversary . . . ." United States v. Ghavami, 882 F. Supp. 2d 532, 541 (S.D.N.Y. 2012).
eg ative publicity, could likely be avoided in most or all of the cases for much less than even half of what the Board bonded for the McNabb renovation . . . .