Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act by denying an inmate's request to inspect a selection of medical records that KSP provided to its General Counsel for the purpose of receiving legal services. We find that KSP did not violate the Open Records Act by denying the inmate's request to inspect the selection of medical records because the selection of medical records was protected by attorney-client privilege and exempt from disclosure under Kentucky Revised Statute (KRS) 61.878(1)(l).
On December 5, 2016, Michael Cooper, an inmate at KSP, requested "to 'inspect' the medical file that was released to General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel & Stafford Easterling, III to make sure all the proper documents make it to trail[sic]." KSP denied the request, stating "[t]he records you request are exempt from inspection or copying pursuant to KRS 61.878(1)(l), KRS 447.154, and KRE 503, because allowing inspection would disclose information provided in confidence to counsel and counsel's thought process, which are protected by the attorney-client privilege and work product rule." This appeal followed.
In response to this appeal, KSP noted that Mr. Cooper has filed a federal civil action against KSP employees alleging that he was provided with inadequate medical care in violation of his civil rights. In preparation for defense of that civil action, Mr. Easterling, counsel for KSP and its employees, requested specific medical records related to Mr. Cooper's claims of inadequate care. KSP provided Mr. Easterling with this selection of medical records. KSP acknowledged that it does not oppose Cooper's right to inspect his medical records in general, but opposes his right to inspect which specific medical records were provided to Mr. Easterling in preparation for the civil action. KSP asserts that such a disclosure is protected by the attorney-client privilege and exempt from disclosure pursuant to KRS 61.878(1)(l).
KRS 61.878(1)(l) authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Kentucky Rule of Evidence (KRE) 503, the attorney-client privilege, which states: "A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client: Between the client or a representative of the client and the client's lawyer[.]" KRE 503(b)(1). In the context of an open records appeal, both courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege pursuant to KRS 61.878(1)(l). See Hahn v. City of Louisville, 80 S.W.3d 771 (Ky. App. 2001); 10-ORD-110; 02-ORD-14; 97-ORD-127. The burden of proof to establish the privilege falls upon the agency seeking to deny inspection of communications. KRS 61.880(2).
Here, KSP established that it provided a selection of Mr. Cooper's medical records to Mr. Easterling for the purpose of receiving legal services. While the content of the medical records was not made as confidential communications to an attorney, by providing a selection of documents to an attorney for purposes of receiving legal services, the selection of documents becomes a confidential communication because it communicates which medical records Mr. Easterling thinks are relevant to the defense of the KSP employees named in Mr. Cooper's civil action. Such a communication is protected by attorney-client privilege and may be withheld from disclosure pursuant to KRS 61.878(1)(l). Accordingly, we find no violation of the Kentucky Open Records Act by KSP in the disposition of Mr. Cooper's request.
It is important to note that our decision is necessitated by the specificity of Mr. Cooper's open records request. Because Mr. Cooper specifically sought the medical file that was provided by KSP to Mr. Easterling, KSP cannot comply with Mr. Cooper's request without violating the attorney-client privilege held by its employees.
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.