Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Office of the Jefferson County Attorney (JCAO) violated the Open Records Act in its disposition of broad requests for records relating to "Drive Safe Louisville," JCAO's traffic safety program. We conclude that JCAO properly withheld the majority of the records, but that two sets of records, constituting seven pages of the total 625 pages withheld, must be produced.
By letter dated October 24, 2016, Michael Mazzoli, made the following requests to the Office of the Jefferson County Attorney:
1) Memoranda and correspondence concerning the methods, practices, and policies for prosecution of (or alternative proceedings for) violations of the traffic codes set forth in KRS Chapters 177, 186, or 189, including but not limited to offenses within the scope of Drive Safe Louisville or other traffic safety program operated pursuant to KRS 186.574(6). This request is not intended to include documents identifying specific offenders or informants, or records pertaining to the investigation or prosecution of discrete individuals.
2) Memoranda and correspondence among or between the Jefferson County Attorney's Office and law enforcement agencies (such as Louisville Metro Police Department) regarding methods, practices, and policies for enforcement or other administration of the traffic codes (KRS Chapters 177, 186, or 189).
3) Documents expressing policies, guidelines, or similar general directives for Assistant Jefferson County Attorneys regarding the prosecution of (or alternative proceedings concerning) violations of the traffic codes set forth in KRS Chapters 177, 186, or 189.
4) Records concerning funds paid to or otherwise received by the Jefferson County Attorney's Office pursuant to KRS.186.574(6)(c)(1).
5) Records concerning the expenditure, investment, or other disposition of all funds described in Item 4.
6) Records of audits of Drive Safe Louisville's operations and/or finances.
7) Reports to the Prosecutors Advisory Council made pursuant to KRS 186.574(6)(c)(2).
8) Records of communications between or among the Office of the Jefferson County Attorney and any of the following entities:
A) employees, officers, owners, founders, or board members of PSI Kentucky LLC;
B) software designers or website managers responsible for the creation or operation of Drive Safe Louisville.
9) Memoranda and correspondence regarding Drive Safe Louisville among or between the Jefferson County Attorney's Office and any of the following entities:A) The Office of the Attorney General of Kentucky;B) The Office of the Jefferson County Circuit Court Clerk;C) The Office of the Commonwealth's Attorney for Jefferson County (30th Judicial District);D) The Office of the Governor of Kentucky.
By letter dated February 8, 2017, 1 Sarah Stewart Ashburner, Assistant County Attorney, responded on behalf of JCAO to Mr. Mazzoli. Ms. Ashburner explained that Mr. Mazzoli's request had generated a large volume of records and that approximately 628 records "are internal communications between attorneys on our staff, or with clients/and or vendors for the Drive Safe Louisville Program. Those records are being withheld pursuant to 61.878(1)(i) and/or (j) (preliminary, notes, emails, drafts, not reflecting final action; or containing recommendations and opinions) and/or (l) (disclosure prohibited or restricted by state law)(KRE 503)." JCAO provided 355 records deemed to be responsive and for which no exemption was claimed. JCAO also provided a CD it deemed responsive to Requests No. 4 and No. 5. There were no records responsive to Requests No. 6 and No. 9. Mr. Mazzoli responded on March 22, 2017, that the CD contained emails that referenced attached files that were not included on the CD or in JCAO's earlier response. Mr. Mazzoli provided a list of these records and requested JCAO to produce them. On April 26, JCAO responded with another CD containing 115 pages of attachments. Two of the records were "withheld as they constitute preliminary drafts and recommendations and are therefore exempt pursuant to KRS 61.878 (l)(i) and(j)."
Mr. Mazzoli, by letter dated July 25, 2017, appealed the responses of JCAO. JCAO responded by letter on August 2, 2017, and explained that a large portion of the requested records "constitute inter-office or privileged communications that fall squarely within the exemptions provided by KRS 61.878(1)(i), (j), and [(l)]."
On August 7, 2017, this office requested to review i n camera the withheld records under the authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. JCAO provided the records on August 29, 2017. In producing the records, JCAO divided the records into five groups and stated the exemptions that applied to each of those groups. The exceptions claimed by JCAO for withholding these records were the "preliminary exceptions," the attorney client privilege, and the attorney work-product rule. We briefly set forth the analysis applicable for each of those exceptions before applying those exceptions to the records provided for our review:
Preliminary Exceptions . "Despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." 2
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing KRS 61.871. In analyzing the preliminary exceptions, both the courts and this office have applied the language of KRS 61.878(l)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See
City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983) (recognizing that "documents defined in subsections [(i)] and [(j)] which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records . . ." but unless those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded under subsections [(i)] and [(j)] of the Act");
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); see 99-ORD-220; 11-ORD-052.
Attorney-Client Privilege and Attorney Work Product . Regarding JCAO's assertion of attorney-client privilege for some records, 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. "[T]he 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. 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). "The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice."
Upjohn Co. v. United States, 449 U.S. 383, 384, 101 S. Ct. 677, 679--80, 66 L. Ed. 2d 584 (1981). However, the "attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions."
Commonwealth, Cabinet for Health & Family Servs. v. Scorsone, 251 S.W.3d 328, 330 (Ky. App. 2008). "The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney."
Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S. Ct. 677, 685, 66 L. Ed. 2d 584 (1981).
The rationale underlying the work-product 3 doctrine has been described as follows:
The work product doctrine is a court made rule, created in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947), and subsequently formalized in Federal Rules of Civil Procedure 26(b)(c), and CR 26.02(3)(a). The rule recognizes that 'it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing party and their counsel.' The work product immunity is the embodiment of a policy that a lawyer doing a lawyer's work in preparation of a case for trial should not be hampered by the knowledge that he might be called upon at any time to hand over the result of his work to an opponent.
1 William S. Haynes, Kentucky Jurisprudence; Kentucky Civil Procedure § 26.02.
The mandatory disclosure provisions of the Open Records Act cannot be construed to limit the power of the Court to protect "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party" concerning anticipated litigation. 98-ORD-156; 00-ORD-99. In Kentucky, the work-product rule is found in the Rules of Civil Procedure at CR 26.02(3)(a). The work-product rule has been deemed incorporated into the exceptions to the Open Records Act by KRS 61.878(1)(l), authorizing public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The statutory enactment restricting access in this context is KRS 447.154. 4
This office used the foregoing guidance regarding preliminary exceptions, the attorney-client privilege, and the work-product rule to analyze the records provided for our in camera inspection and we have made the following determinations regarding those records.
Pages A0001-A0005 . These five pages were withheld as "correspondence with private individuals which is not intended to give notice of final action of a public agency and is therefore exempt pursuant to KRS 61.878(1)(i);" We find that pages A0001-0002, and A0004-0005 do not qualify under the exclusion of KRS 61.878(1)(i) as claimed. In 00-ORD-168, this office held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence with private individuals," is generally reserved for that narrow category of public records that reflects "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168, p. 2. The communications in these pages do not contain explicit assurances of confidentiality, nor does the context imply an expectation or an assurance of confidentiality. Page A0003 is a draft response to the initiating correspondence from the private individual that does not appear to have been adopted into the final response from the agency, and so may be withheld pursuant to KRS 61.878(1)(i) as a preliminary draft and/or KRS 61.878(1)(j) as a preliminary recommendation. Pages A0001-0002, and A0004-0005 do not qualify as preliminary records and must be disclosed.
Pages B0006--B0020 . JCAO described these records as "emails and correspondence regarding specific offenders or the prosecution of discrete individuals which were excluded in the original open records request by requestor but inadvertently turned up in the page count[.]" Our review of these records concurs with JCAO's description; these records concern discrete individuals and are therefore not responsive to the request and were properly excluded.
Pages C0021-C0063, and C0075-C0082 . These pages were withheld on the basis that they include "records resulting from the Metro Technology search based on requestor's search terms which are not related to Drive Safe Louisville, but are still exempt pursuant to KRS 61.878(1)(i)(j) and (l) as they constitute preliminary notes, recommendations, opinions, and internal communications as well as attorney client privilege and work product [.]" Some of these records may be protected by attorney-client privilege or the work-product rule, but the record does not provide sufficient basis for us to conclusively determine which records so qualify. However, our review of these records concludes that they were properly withheld as preliminary records. Page C0059 is a blank page and need not be disclosed as it is not relevant to Mr. Mazzoli's request.
Pages C00064-C0066 . These records are merely transmitting the Department of Criminal Justice Training's Search and Seizure Casebook and are neither preliminary records nor protected by the attorney-client privilege or the work product rule. It appears that these records may be responsive to Mr. Mazzoli's request and so should be produced.
Pages C00067-C00074 . While these records are not excluded by the claimed exemptions, they need not be produced to Mr. Mazzoli as they are not responsive to his requests. These records refer to an organization, "Postpartum Support International," that uses "PSI" as an abbreviation and so may be confused with the Public Safety Institute (PSI) of Kentucky, JCAO's traffic safety program provider.
Pages D0083-D0182 . These records were withheld on the basis that they include "notes, comments, internal discussions, recommendations, and opinions, some of which include communications which are privileged or constitute attorney work product, and are therefore exempt pursuant to KRS 61.878(1)(L) [and (j),] and (l) (incorporating KRE 503)[.]" Some of these records may be protected by attorney-client privilege or the work-product rule, but the record does not provide sufficient basis for us to conclusively determine which records so qualify. While we make no determination regarding these records on those exceptions, our review does however conclude that they were properly withheld as preliminary records.
Pages E0183-E0625 . These records were withheld on the basis that they include "preliminary drafts, notes, and internal communications containing recommendations and opinions, as well as proposed drafts of handouts and internal communications, all of which are exempt pursuant to KRS 61.878(1)[(i)] and/or (j)." Our review found that pages E0355 and E0356 are emails to an unsuccessful vendor notifying him that another vendor had been selected to enter into final negotiations as third-party traffic safety program provider. While this record reflects final agency action and so does not qualify as a preliminary record, it does not appear responsive to Mr. Mazzoli's requests and need not be produced. Our review of the remainder of these records concludes that they were properly withheld as preliminary 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
1 The record indicates that the JCAO may have been in contact with Mr. Mazzoli prior to this date regarding the request and therefore we make no finding as to whether JCAO's response was timely in accordance with KRS 61.880(1).
2 KRS 61.878(1)(i) authorizes the withholding of "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]" KRS 61.878(1)(j) authorizes the withholding of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
3 In CR 26.02(3), the Court affirmatively provides that:
(a) . . . 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.
4 KRS 447.154 states: "No act creating, repealing, or modifying any statute shall be construed directly, or by implication, to limit the right of the Court of Justice to promulgate rules from time to time or to supersede, modify, or amend any rule so promulgated. Nor shall any statute be construed to limit in any manner the power of the Court of Justice to make rules governing practice and procedure in the courts."