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 Regional Water Resource Agency ("RWRA") violated the Open Records Act in the disposition of attorney Greg Jennings' March 20, 2017, request for various records "for the years 2015, 2016, and 2017," primarily relating to work performed near a certain address in Owensboro, Kentucky, evidently owned or occupied by his client. For the reasons stated below, we find a partial violation of the Act.
The portions of Mr. Jennings' request at issue in this appeal are the following:
4) All written and electronic correspondence regarding David Thompson, and/or the property located at 4214 Morgan Court, Owensboro, Kentucky.
. . . .
6) Board meeting minutes for 2015, 2016, and 2017.
. . . .
8) Copy of any agreement for insurance coverage with the Kentucky League of Cities.
9) Copy of RWRA policy manua1(s); and
10) Copy of all settlement agreements for the past ten (10) years.
RWRA responded to Mr. Jennings' request on March 28, 2017.
With regard to item 4, RWRA provided some documents and stated: "RWRA has withheld documents otherwise responsive to this request based on the attorney-client privilege and the work product doctrine. " Regarding items 6 and 8, RWRA stated: "RWRA will provide copies of documents responsive to this request upon receipt of the payment authorized by KRS 61.874(1)," a payment RWRA calculated at $ 350.00 based on 10 cents per page. As to item 9, RWRA stated as follows:
This request does not readily identify any specific document or provide any basis for determining what policies you seek documentation on. RWRA has many documents that could be described as setting forth "policy" and it is unreasonably burdensome to review every document in the agency to determine which ones may or may not meet your definition of "policy manual. " If you have a specific area of policy that you believe RWRA might have documentation on, RWRA will review such a request.
In response to item 10, RWRA stated:
There's a conflict in your request for 10 years of settlement documents in request 10 and your overall time frame of three years you state is applicable to all requests. RWRA will respond to this request for 2015, 2016, and 2017. If you confirm that your request is for 10 years, RWRA will have to assess it in light of the burden that places on its staff. The one settlement agreement RWRA that [ sic ] is responsive to this request as defined is attached.
Mr. Jennings initiated this appeal on June 2, 2017.
Attorney-client privilege
Regarding item 4, Mr. Jennings argues that RWRA failed to identify the withheld documents, cite an exception to the Open Records Act, and explain how it applies to the records withheld. We agree. KRS 61.880(1) requires that a public agency denying any portion of a request for public records "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. " Since RWRA failed to do any of this, we find that it procedurally violated this subsection.
On appeal, RWRA explains that it withheld four documents, consisting of three e-mail "communications . . . between RWRA and its insurer regarding claims by Mr. Thompson," and "a page of hand-written notes by an RWRA staffer made to facilitate communications with RWRA's insurer. " We have reviewed these records in camera pursuant to KRS 61.880(2)(c) and note that this description is indeed accurate.
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 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). See, e.g. , 97-ORD-127; 14-ORD-167.
In Asbury v. Beerbower, 589 S.W.2d 216 (Ky. 1979), the Supreme Court of Kentucky extended the attorney-client privilege to confidential communications between an insured and a liability insurance company concerning potential claims covered by the policy. Such communication is treated "as if it were between an attorney and client." 92-ORD-1024. The rationale for this treatment is that "the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured. " Asbury, supra, 589 S.W.2d at 217 (quoting People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964)). Furthermore, "communications between an insured and a representative of the insurance carrier are privileged because the carrier is required to represent the insured and the insured is obligated to cooperate with the carrier, thus making it, in effect, an attorney-client relationship." Com. v. Melear, 638 S.W.2d 290 (Ky. App. 1982).
The e-mails withheld clearly fall within the scope of this privilege. Additionally, the handwritten notes, evidently made in furtherance of such confidential communication, are protected by the privilege. 1 Since it does not appear in this case that the privilege was waived by disclosure to third parties, we find that the privilege is properly invoked as to these records.
Reasonableness of copying charges
With regard to the copying fees assessed by RWRA, Mr. Jennings argues that "there is not a breakdown of the costs per record per request" and that "[i]t is doubtful that there are 3500 pages of records for an insurance agreement and three (3) years of board minutes. " RWRA confirms that items 6 and 8 are indeed the only requests represented by the $ 350.00 figure, as the "board minutes and insurance policies . . . are quite voluminous and are beyond what RWRA was willing to copy for Mr. Thompson at no cost." Since RWRA has indicated that the charge is based on 10 cents per page, we cannot find the charges unreasonable. Further, since KRS 61.874(1) allows a public agency to "require . . . advance payment of the prescribed fee, including postage where appropriate," we find no violation in RWRA's conditioning the fulfillment of this request upon such payment.
Mr. Jennings contends that since RWRA has provided certain other records to him in PDF form at no cost, it must do the same with these records. KRS 61.874(2)(a) provides that "[n]onexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. " Alternatively, records may be provided in a non-standard electronic format "for standard fees as specified by the public agency" if it "conforms to the requester's requirements." Id. ; see generally 14-ORD-148. Mr. Jennings' argument, however, presupposes that the insurance policies and board minutes are maintained in electronic form, which is not evident from the record on appeal. Moreover, Mr. Jennings did not designate electronic format in his request. Accordingly, we find no violation as to the copying charges.
Policy manuals and "unreasonable burden"
Mr. Jennings takes issue with RWRA's position that locating all of its "policy manuals" would constitute an unreasonable burden. KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records. . ., 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 .
(Emphasis added.) RWRA argues on appeal:
RWRA maintains written policies on everything from employee firearm storage to combined sewer overflows. . . . [A]sking for all of them places an unreasonable research burden on RWRA which the Act does not require. . . . Mr. Thompson's blanket request for a copy of "RWRA policy manuals" is no different than the request found to be insufficiently specific in 16-ORD-242 and was properly declined.
Mr. Jennings, meanwhile, maintains that his request was "specific enough for RWRA to make a good faith effort to look for any policy manual in its possession."
The request in 16-ORD-242, cited by RWRA, bears no resemblance to the one presently before us. That request identified no specific type of documents, but constituted the type of "open-ended any-and-all-records-that relate" request we have repeatedly held to be too imprecise a description under KRS 61.872(3)(b) 2 when records are requested by mail. See 08-ORD-058. By contrast, Mr. Jennings specifically asked for "RWRA policy manua1(s)," which is as precise a description as can reasonably be expected. "[A]n open records request should not require the specificity and cunning of a carefully drawn set of discovery requests." Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) (internal quotation omitted).
Moreover, a public agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Id. at 666. If RWRA has policy manuals, it should be able to locate them. If policy manuals do not exist, RWRA must affirmatively so state. See 09-ORD-181. Since RWRA has failed to show by clear and convincing evidence that producing all of its policy manuals would constitute an unreasonable burden, its refusal to do so is in violation of the Open Records Act.
Settlement agreements
Mr. Jennings, on appeal, appears to confirm that he intended to request all RWRA settlement agreements over the last 10 years, rather than merely for 2015 through 2017. RWRA responds that it would "decline that request under the authority of 16-ORD-242, as significant research into closed files and stored records would be required," thus reiterating its previous argument that producing the records would pose an unreasonable burden.
RWRA does not argue, with respect to settlement agreements, that Mr. Jennings has not precisely described the records. Rather, it merely claims that it should not have to look through "closed files and stored records." We find no authority to support that proposition. To the contrary, KRS 61.872(5) expressly allows a public agency additional time when necessary to fulfill a request for records that are "in storage or not otherwise available." Since RWRA has failed to establish by clear and convincing evidence that producing the settlement agreements would be unreasonably burdensome, it must comply with Mr. Jennings' request.
Conclusion
We therefore find that RWRA properly withheld the four records covered by the attorney-client privilege and the work product doctrine, although it failed to comply with the procedural requirements of KRS 61.880(1) in that portion of its response to Mr. Jennings; and that producing copies of board minutes and insurance policies was lawfully conditioned on advance payment of a copying fee of 10 cents per page. With respect to RWRA policy manuals and settlement agreements, RWRA has not established an unreasonable burden under KRS 61.872(6) to sustain its refusal to produce those records.
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