Request By:
Seth Combs
Richard J. Ornstein
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Association of Counties (KACo) violated the Open Records Act in its disposition of Seth Combs's request for insurance claim records. For the reasons stated below, we find that, with one exception, the records were properly withheld.
KACo is an association of Kentucky county governments that provides various services to its members, most pertinently, administering insurance programs, including the Kentucky All Lines Fund (KALF). Seth Combs, attorney, made a written request, dated April 10, 2017, to KACo, requesting all records "pertaining to the KACo claim files(s) for Barkley Scott Hall (Claim [number]) and all insurance policy information pertaining to the Kentucky River Regional Animal Shelter ("Shelter" )."
Richard J. Ornstein, attorney, responded on behalf of KACo on March 21, 2017. He explained that KACo did not store the files on site and was in the process of retrieving the records from the KALF third party administrator, Underwriter's Safety & Claims (USC). He stated that Mr. Combs should receive the results of his request no later than April 6, 2017. A copy of the requested insurance policy was provided to Mr. Combs with that response. On April 6, Mr. Ornstein provided 20 pages of records and explained that a "portion" of the request had been withheld because "[t]hese documents contain communications between the attorney and client and reflect notes, working papers, memoranda or similar materials." Mr. Ornstein stated that the records were withheld under the work product doctrine and the attorney-client privilege. Mr. Combs filed an open records appeal on April 10, 2017, asserting that KACo's April 6 response was insufficient under KRS 61.880(1) which requires that the agency state the "specific exception and a brief explanation of how the exception applies." He further asserted that the entirety of the materials requested were subject to disclosure.
In a response to the appeal, dated April 14, 2017, Mr. Ornstein explained that the request related to a claim made against the Kentucky River Regional Animal Shelter, an agency insured through KALF. KACo withheld a portion of the requested records under the attorney-client privilege and the work product doctrine, and because "the items withheld contained documents prepared, and communications made, in preparation for litigation." Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked Mr. Ornstein to provide copies of the records withheld for an in camera review in order to facilitate a resolution of the appeal. Mr. Ornstein complied by correspondence dated May 4, 2017, providing both the withheld records and a brief explanation of why each of the records were withheld. Mr. Ornstein further clarified that USC also researches and investigates KALF claims and coordinates with KALF-assigned legal counsel in preparation, and during defense of, KALF clients. "In performing these functions, USC acts as an agent of both KACo legal counsel and KALF legal counsel in performing their functions in anticipation of litigation and should be considered as a representative of KACo for purposes of the [work product] doctrine." The records provided for our in camera review are generally what one would expect in an insurance claim file stemming from a dog bite, and we may generally describe them as investigative records by USC and communications between and among USC representatives, and KACo/KALF attorneys regarding the investigation and the ensuing litigation by Mr. Combs on behalf of Mr. Hall.
Mr. Ornstein described each record provided for our in camera review and explained the reasoning for withholding each of those records. The records were withheld on the basis of the attorney-client privilege, the attorney work product doctrine, as preliminary drafts or notes under KRS 61.878(1)(i), and/or as a preliminary memorandum in which opinions were expressed, exempted under KRS 61.878(1)(j). Though some of the undisclosed records were claimed to be confidential under several of the exemptions just named, work product protection was claimed for all of the withheld records.
Work Product Doctrine . This office recognizes that certain records - 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. 1 This doctrine, authority for which is derived from KRS 447.154, is codified at CR 26.02(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which, in turn, 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." At KRS 447.154, the General Assembly recognizes "the power of the Court of Justice to make rules governing practice and procedure in the courts," declaring that no statute shall "be construed to limit in any manner, that power." 2 CR 26.02(3) only applies to materials "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent)."
In 00-ORD-99, this office affirmed the City of Louisville's denial of a request for records maintained by the city's self-insurance trust on the basis of CR 26.02(3) and KRS 61.878(1)(l). There, we recognized that the city and its self-insurance trust "share a common purpose in the assessment and handling of potential liability" of the municipality in threatened or actual litigation. 00-ORD-99, p. 9. Further, we recognized that the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party (including consultants, sureties, indemnitors, insurers, or agents) "as to the strengths and weaknesses of a case and the value of a claim go to the very essence of the work product privilege." Id. As in 00-ORD-99, the Kentucky River Regional Animal Shelter, USC's representatives, and attorneys for KALF and KACo shared "a common purpose in the assessment and handling of potential liability" of the Shelter in potential or actual litigation.
We note that the incident with Mr. Hall occurred on November 27, 2016, and that Mr. Combs notified USC that he was representing Mr. Hall as of November 30, 2016 - prior to USC initiating its investigation of the incident (as reflected in the undisclosed records). In
Duffy v. Wilson, 289 S.W.3d 555, 559 (Ky. 2009), the Supreme Court commented on when parties may reasonably be said to be anticipating litigation:
Prudent parties anticipate litigation and begin preparation prior to the time suit is formally commenced. Thus the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. 8 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2024 (2d ed.1994). Id. at 559.
As Mr. Combs had given notice of his representation of Mr. Hall, and, in light of the Supreme Court's guidance in Duffy v. Wilson , and the facts of the case, it was reasonable that USC, as a representative of KALF and KACo, conducted its investigation with a legitimate anticipation of litigation. Mr. Combs filed suit, on behalf of Mr. Hall, on February 23, 2017.
Based upon our review of the records provided for in camera review, along with Mr. Ornstein's explanations of why the records were excluded (attorney-client privilege, attorney work product, and preliminary records exceptions pursuant to KRS 61.878(1)(i) and (j)), we conclude that all but one record was properly withheld under the work product doctrine. The one record that we find that should have been disclosed is labeled "incident report" on its face and contains typed statements of Minnie Owsley (shelter personnel on duty the day of Mr. Hall's incident) regarding the event, and Allie Mullins (shelter manager) explaining how the dog was handled from the time it came to the shelter, signage about closing the kennel door, and her instructions to Mr. Hall regarding safety with bigger dogs. Pursuant to KRS 61.880(2)(c), the burden of proof rests with the agency in sustaining the nondisclosure of a record. Mr. Ornstein explained that the incident report was excluded under the work product doctrine, and as a preliminary draft or note under KRS 61.878(1)(i) 3, and as a preliminary memoranda (under KRS 61.878(1)(j)) 4 in which opinions were expressed. Our review of this record finds that it does not contain any indicia of when it was prepared, for whom it was prepared, or the purpose for which it was prepared. The incident report appears to be the type of record an agency would create in the normal course of business to document a significant injury at the shelter. KACo has provided no evidence to show that the incident report was created in anticipation of litigation and so it cannot be excluded under the work product doctrine. The incident report contains no indication, in word or form, that it is merely a preliminary draft or a note, and so does not qualify for exclusion under KRS 61.878(1)(i). The incident report contains facts and observations, but does not contain preliminary recommendations or express opinions, and so is not exempt under KRS 61.878(1)(j). For these reasons, we find that KACo failed to sustain its burden of proof to show that the incident report was properly withheld from Mr. Combs. KACo thus violated the Open Records Act and must promptly provide the incident report to Mr. Combs.
From our review of the records withheld from disclosure, we concur that the majority of those records were prepared in anticipation of litigation, or for trial, against the Kentucky River Regional Animal Shelter, by Mr. Hall, and were thus properly withheld under the attorney work product doctrine as incorporated into the Open Records Act through KRS 61.878(1)(l). Although KACo's April 6th explanation for withholding some records was deficient in failing to cite the specific exemption (s) for the withheld records, that deficiency was corrected on appeal.
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.
Footnotes
Footnotes
1 Both the courts and this office have recognized the attorney-client privilege and work product doctrine in the context of an open records dispute if all of the elements of the privileges are met. See Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App.2001), and 11-ORD-108.
2 In CR 26.02(3), the Court affirmatively provides that: "(a) Subject to the provisions of paragraph (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
3 KRS 61.878(1)(i) permits public agencies to withhold: "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency."
4 KRS 61.878(1)(j) permits public agencies to withhold: "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."