Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D.Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Campbell County Fiscal Court ("Fiscal Court") violated the Open Records Act in partially denying attorney James W. Morgan, Jr.'s September 13, 2017, request "to inspect or take copies of public records that include any and all correspondence exchanged by and between the Campbell County Planning and Zoning Commission; the Campbell County Fiscal Court; the Campbell County Board of Adjustments; the Brighton Center and/or any of [its] affiliates; the Diocese of Covington and/or any of [its] affiliates; as well as any individuals, Board members, and/or employees on behalf of any of the referenced entities." In a timely written response per KRS 61.880(1), Deputy Judge/Executive Matthew Elberfeld advised Mr. Morgan that 667 pages of responsive documents had been identified, seventy-one (71) pages of which "are exempt from disclosure pursuant to KRS 61.878(1)(i) and 61.878(1)(j) which exempts preliminary drafts, notes, correspondence and preliminary recommendations and memoranda in which opinions are expressed or policies formulated. " Mr. Elberfeld advised that forty-two (42) pages were being withheld as protected under the attorney-client privilege, 1 incorporated into the Act by operation of KRS 61.878(1)(l). 2
Upon receiving notification of Mr. Morgan's appeal from this office, Assistant Campbell County Attorney Robert E. List responded on behalf of the Fiscal Court. Mr. List initially clarified that Mr. Morgan asked the Fiscal Court to reconsider its position regarding the application of KRS 61.878(1)(i) and (j) and the attorney-client privilege upon receipt of its response. By letter dated October 5, 2017 (the date of Mr. Morgan's appeal), a copy of which Mr. List attached to his October 13, 2017, appeal response, Mr. List notified Mr. Morgan that of the 71 pages initially withheld under the preliminary exceptions, the Fiscal Court had ultimately released all but 6 pages, two of which are duplicative, resulting in only 4 pages being withheld. "These emails discuss a matter that is not final," Mr. List explained on appeal, but regarding which "opinions were expressed and recommendations were made." Mr. List also noted in his October 5 letter, and reiterated on appeal, that "one email from a Campbell County Assistant Attorney to Cindy Minter was redacted pursuant to attorney-client privilege that is incorporated into the Open Records Act pursuant to KRS 61.878(1)(l) ."
Additionally, Mr. List noted in his appeal response that Mr. Morgan's letter of appeal incorrectly stated that 42 pages of documents were being withheld under the attorney-client privilege. Mr. List further advised that following a telephone conversation with Mr. Morgan, he met with Matthew Smith, attorney for the Campbell County Zoning Administrator, and Mr. Smith indicated that he was not asserting the privilege as to all 42 pages, but that not all 42 pages were responsive to Mr. Morgan's request. Mr. Morgan subsequently clarified the scope of his request.
By letter dated September 25, 2017, a copy of which Mr. List attached to his appeal response, Mr. List notified Mr. Morgan that twenty-nine (29) pages initially withheld under the attorney-client privilege were being released following additional review. Mr. List advised that "[a]ll of the records claimed exempt are between Campbell County Fiscal Court employee Cindy Minter and attorney Matt Smith who represents Cindy Minter as the Campbell County Zoning Administrator." For the first time, the Fiscal Court cited KRE 503, where the attorney-client privilege is codified. Mr. List also described each of the "privileged documents. " 3 In closing, Mr. List confirmed that the additional 29 pages would be made available on September 26, 2017. Mr. List reiterated on appeal that six pages were ultimately withheld as exempt under KRS 61.878(1)(i) and (j). In addition, the Fiscal Court maintained that 29 pages, consisting of e-mail communications between Mr. Smith and Ms. Minter, were protected under KRE 503, along with a single page consisting of an e-mail between Ms. Minter and an Assistant Campbell County Attorney.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, this office asked the Fiscal Court to provide us with unredacted hard copies of the records withheld on the basis of KRE 503 for in camera review. 4 This office also requested clarification as to what constitutes the final action of the Fiscal Court in the relevant context. Mr. List promptly responded on behalf of the Fiscal Court. With regard to e-mails withheld under KRS 61.878(1)(i) and (j), Mr. List advised:
. Email dated January 27, 2017 from Matt Elberfeld, Campbell County Administrator -- This email contains discussions regarding Housing vouchers. Final action would be the Brighton Center and the County's Housing Authority executing a contract for project-based vouchers. No final action has been taken as no decision has been made to grant project-based vouchers and no contract has been entered into between the Brighton Center and the County Housing Authority regarding the housing vouchers discussed in the email.
. Email dated June 19, 2017 from Matt Elberfeld -- This contains discussions regarding the possible options available for awarding project-based vouchers with opinions expressed on the best options. Final action would be the awarding of project-based vouchers for the location under discussion. No final action has been taken as project-based vouchers have not been awarded for the proposed location.
. Email dated July 14, 2016 from Cindy Minter, Campbell County Zoning Administrator -- This contains a discussion from Cindy Minter to a private citizen who expressed interest in how he might be able to develop the property. . . . This individual did ask for advice on what could be done with the property that he was interested in acquiring. This email qualifies as correspondence with private individuals where the candor of the correspondents depends on assurances of confidentiality. Furthermore, this is not a communication where an agency is expected to rely on the correspondence to take some action. This was a confidential communication regarding development ideas for a specific property that the private citizen was considering to purchase. Final action on the email, if there were any, would not occur sooner than the private individual completing the purchase of the property. The purchase of the property has not been completed as of this date.
With regard to records withheld under KRE 503, Mr. List noted that he detailed these records in his letter to Mr. Morgan of September 25, 2017, which also explained that the May 16, 2017, e-mail had a 12-page attachment consisting of "prior zoning records on the subject property." 5 Mr. List advised those 12 pages of records had already been provided to Mr. Morgan. 6 Lastly, Mr. List reiterated that a "one-page email dated May 16, 2017 from [A]ssistant Campbell County Attorney Tom Edge to Cindy Minter requesting confidential information concerning the email from an individual named Denny Glenn dated May 15, 2017," was being withheld on the basis of KRE 503. Based upon the following, this office affirms the Fiscal Court's disposition of Mr. Morgan's request.
Among those records excluded from disclosure are those identified at KRS 61.878(1)(i) and (j). 7
Beckham v. Board of Educ. of Jefferson Cty., 873 S.W.2d 575, 577-578 (Ky. 1994);
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j) in a variety of contexts but little has changed regarding the relevant analysis. See
City of Louisville v. Courier-Journal and Louisville Times Co. 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 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"); 8
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);
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013)(holding that certain e-mails fell within KRS 61.878(1)(i) and (j), and retained their preliminary character as the subject meeting did not conclusively resolve the ultimate issue and "piecemeal disclosure along the path of the decision making process is not mandatory"); 99-ORD-220; 11-ORD-052; 15-ORD-189; 16-ORD-167.
Our in camera review of the records withheld under KRS 61.878(1)(i) and (j) confirms that Mr. List's description set forth above is entirely accurate. The January 27, 2017, e-mail and the June 19, 2017, e-mail contain discussions regarding the subject of housing vouchers in general and specific recommendations and opinions regarding the options available for the County relative to a specific project or property. See
Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006)(holding that "emails that were exchanged between the mayor and the city council members were preliminary discussions involving what course of action should be taken in regard to a controversy . . . [and therefore] preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . [which] were not subject to disclosure" ); 08-ORD-266; 14-ORD-024. Mr. List also credibly explained what constitutes the final action of the Fiscal Court in the relevant context and no contrary evidence has been presented. "Final agency action" is understood as "when the ultimate issue to be decided [is] resolved."
University of Louisville v. Sharp, 416 S.W.3d at 315; OAG 91-21 (Letter of Intent is not final agency action, because the "incentive package" is subject to negotiation and change until such time as final agreement is reached among the parties); 12-ORD-217 (holding that final action would occur when the fiscal court approved the sale of the property, not upon its approval of a resolution declaring the intent to close the apartment complex); 05-ORD-048; 15-ORD-087; 16-ORD-231. Because the Fiscal Court has not taken any final action, these preliminary recommendations and opinions retain their preliminary character and can be properly withheld under KRS 61.878(1)(j).
Likewise, Mr. List accurately described the July 14, 2016, e-mail (see page 4). In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to 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. " Id. , p. 2; 04-ORD-125. Rather, "[w]ritings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee, or enter into a government contract based on bids." OAG 90-142, p. 6; see 07-ORD-181; 12-ORD-134. Ms. Minter's July 14, 2016, e-mail responding to a citizen's inquiry falls within the parameters of this exception. Compare 17-ORD-156. Because the County has not taken any final action, this correspondence with a private individual also retains its preliminary character and can be properly withheld under KRS 61.878(1)(i). The remaining question is whether the Fiscal Court properly denied access to 15 pages of e-mails pursuant to KRE 503.
Both the courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege in the context of an Open Records dispute if , as in
Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), all of the elements of the privilege are present. 9 See 01-ORD-246; 10-ORD-177. The Kentucky Supreme Court has recognized that KRE 503 "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."
Cabinet for Health and Family Serv. v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008); 10-ORD-125. In short, KRE 503 only applies when a public agency can establish that all three of the following elements are present: 1) relationship of attorney and client; 2) communication by or to the client relating to the subject matter upon which professional advice is sought; and 3) the confidentiality of the expression for which the protection is claimed. 10 97-ORD-127, p. 1 (citation omitted); 13-ORD-052.
This office cannot reveal the contents of the 15 pages that were provided for in camera review pursuant to KRS 61.880(2)(c); 40 KAR 1:030 Section 3. Once again, however, independent review of the records withheld validated the Fiscal Court's position. Mr. List provided accurate descriptions of the March 14, 2017, e-mail thread, the May 16, 2017, e-mail, and the June 5, 2017, e-mail, in his letter of September 25, 2017 (see note 3). In simple terms, each relevant e-mail consists of either a confidential communication by the client, Ms. Minter, to her attorney, Mr. Smith, requesting his professional opinion/advice, or a response from the attorney to his client, and relates to the "rendition of legal services, " i.e. , "the subject matter about which professional advice [was being] sought." Likewise, the single responsive e-mail between Ms. Minter and Assistant Campbell County Attorney Tom Edge relates exclusively to how the Fiscal Court should address the letter that a citizen directed to Judge/Executive Pendery. See 14-ORD-101 (any communications from the County Attorney's office advising the fiscal court "on the narrow subject of the rights or interests of the county as a property owner would be communications between attorney and client 'for the purpose of facilitating the process of rendering professional legal services'"). Each of the 15 pages remaining in dispute falls within the parameters of KRE 503 and was therefore properly withheld. Based upon the foregoing, this office affirms the Fiscal Court's disposition of Mr. Morgan's request.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Pursuant to KRS 61.880(1), a public "agency response denying, in whole or in part, inspection of any record shall 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." The City's initial response was procedurally deficient insofar as it contained no specific reference to KRE 503(b)(the attorney-client privilege).
2 The Fiscal Court notified Mr. Morgan that minimal redactions were being made on the basis of KRS 61.878(1)(a); he did not challenge those redactions on appeal.
3 Mr. List provided the following descriptions:
. Email dated March 14, 2017 from Cindy Minter to Matt Smith providing information regarding subject property and response email dated March 17, 2017 from Matt Smith to Cindy Minter providing legal opinions. A follow-up email dated March 17, 2017 from Cindy Minter to Matt Smith providing additional information consisting of four (4) pages. The email chain is duplicated in three (3) additional pages.
. Email dated May 16, 2017 from Cindy Minter to Matt Smith providing information for the purposes of obtaining an opinion regarding the subject property consisting of one (1) page and attaching twelve (12) documents that will be made available to you. . . .
. Email dated June 5, 2017 from Cindy Minter to Matt Smith providing information for the purposes of obtaining an opinion regarding the subject property consisting of two (2) pages.
. Email dated September 1, 2017 from Matt Smith to Cindy Minter that provides the legal opinion of Matt Smith regarding the subject property consisting of three (3) pages.
4 The Fiscal Court included hard copies of the six pages withheld under KRS 61.878(1)(i) and (j) with its appeal response for this office to review in camera .
5 See note 3, above.
6 Mr. List explained that his letter of September 25, 2017, described the e-mails dated March 14, 2017, March 17, 2017, June 5, 2017, and September 1, 2017, which total 14 pages. These 14 pages and the 12 pages of zoning records already provided to Mr. Morgan totaled twenty-six (26) pages. "The difference in the page count between twenty-nine (29) pages and the twenty-six (26) pages is either a mistaken count," Mr. List advised, or can be explained by the fact that "several emails in the chain were copied together rather than separately." Mr. List acknowledged that he failed to subtract the 12 pages of zoning records when he initially counted the pages; he enclosed the 14 pages of records that are the only records "claimed exempt under attorney-client privilege between attorney Matt Smith and Cindy Minter." These 14, combined with the "one-page e-mail dated May 16, 2017," from Mr. Edge to Ms. Minter bring the total number of pages withheld on the basis of the attorney-client privilege to 15.
Mr. List explained that a copy of the e-mail from Denny Glenn to Judge-Executive Steve Pendery was provided to Mr. Morgan. Only the e-mail from Mr. Edge to Ms. Minter was ultimately withheld under the attorney-client privilege. Disclosing that e-mail, Mr. List advised, "would disclose the subject matter of the confidential information that the County Attorney was requesting from Ms. Minter."
7 KRS 61.878(1)(i) and (j), respectively, exclude from disclosure:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
8 A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034, p. 11 (quoting City of Louisville, 637 S.W.2d at 660). "It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action." 16-ORD-256, p. 4.
9 The attorney-client privilege extends to confidential communications:
(1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer.
(2) Between the lawyer and a representative of the lawyer;
(3) By the client or a representative of the client or the client's lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein;
(4) Between representatives of the client or between the client and a representative of the client; or
(5) Among lawyers and their representatives representing the same client.
See 06-ORD-125, pp. 3-10. See 15-ORD-214, pp. 6-8 for discussion of the attorney-client privilege in the context of attorneys representing government clients ("The attorney-client privilege extends to a communication of a governmental organization . . . and of an individual employee or other agent of a governmental organization as a client[.]")(Citation omitted).
10 By letter dated December 6, 2017, Mr. Morgan replied to Mr. List's November 13, 2017, supplemental response. Mr. Morgan emphasized, "if any such emails or other records documenting communications that are claimed to be exempt under the attorney/client privilege have been disclosed, i.e. , copied to, or simply included in the communication, third parties other than the County Attorney and his staff or the [Fiscal Court], then the attorney/client privilege has been destroyed." Mr. List clarified:
There was only one communication from the County Attorney's Office to an employee of the Fiscal Court that was claimed as privileged. The other communications are from the attorney for the Campbell County Planning Commission, Matthew Smith, to the County's Zoning Administrator, Cindy Minter, who is an employee of the Campbell County Fiscal Court. . . . Matthew Smith's communications with his client, Cindy Minter, the Zoning Administrator are also privileged communications.
Mr. List also emphasized, "the communications between Matthew Smith and Cindy Minter and the communication between the County Attorney and the [Fiscal Court] employee were not disclosed to third parties." "[R]evelation 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."); 16-ORD-262. The Fiscal Court did not waive the attorney-client privilege in this case.