Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Louisville Metro Council ("Council") violated the Open Records Act in its disposition of David Fink's open records request regarding a Metro Council ordinance. For the reasons stated below, we find that the Council did not substantively violate the Act.
In his March 3, 2018, request, Mr. Fink asked for:
" ? [P]ublic records that are related to any correspondence, written or email between any or all of the following parties pertaining to Metro Council Ordinance 0-460-17 aka Planning and Design case number 16ZONE1037. The parties involved include Brian Wacker, Chad Whitaker, Chris Crumpton, Paul Whitty and Councilman Robin Engle. A separate request will be submitted specifically to Councilman Engel."
Lisa Franklin Gray, Open Records Coordinator, responded to the request on behalf of the Council on March 14, 2018. 1 Ms. Gray responded to the request by asserting that there were 12 records responsive to the request, but that the records were exempt pursuant to KRS 61.878(1)(i) and (j) 2, as well as the attorney-client privilege, incorporated into the Open Records Act pursuant to KRS 61.878(1)(l). 3
Mr. Fink appealed this response by letter dated March 19, 2018, and stated that the attorney-client privilege "should not apply as Metro Council attorney Paul Whitty was not offering legal advice but was acting as author of amendments and apparently as a negotiator with a 3rd party, the applicants for the zoning change."
Annale Renneker, Assistant Jefferson County Attorney, responded to the appeal on behalf of the Council. Ms. Renneker again asserted that the responsive records are all protected by attorney-client privilege, citing 10-ORD-177, and 97-ORD-127. She explained that Paul Whitty is an Assistant County Attorney with the Jefferson County Attorney's Office and further stated:
Pursuant to KRS 67C.115(5), the county attorney is to serve as the legal advisor and representative of the consolidated local government. The assistant county attorneys are appointed by the county attorney to act on his behalf. Therefore, Mr. Whitty is required to serve as the legal advisor and representative of Metro Council, a part of the consolidated local government. In his role as legal counsel to Metro Council, Mr. Whitty is required to advise and assist in drafting legal documents for councilmembers on matters relating to their performance as members of the legislative body of Louisville Metro Government. Councilman Engel requested Mr. Whitty's assistance in researching and drafting amendments to a zoning ordinance. Thus, the scope of his work in drafting and advising Councilman Engel on the legal issues associated with the ordinance is protected by the attorney-client privilege, assuming confidentiality has not been broken.
In her response to the appeal, Ms. Renneker described each of the emails 4 withheld on the basis of the attorney-client privilege. Pursuant to KRS 61.880(2)(c), this office requested that the Council provide us with unredacted copies of the records withheld for the purpose of in camera review, and the Council promptly complied. Our review of the records comports with Ms. Renneker's descriptions of the emails. Each of those emails was a communication between Mr. Whitty and Councilman Engel, though some emails also include Councilman Engel's legislative aide, other Assistant County Attorneys, and two Metro Government City Planners involved in evaluating options for the subject ordinance.
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. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). The court reasoned as follows:
[The attorney-client privilege, codified at KRE 503,] recognizes that sound legal advice and advocacy serve vital public purposes and that such advice and advocacy depend upon a guarantee of confidentiality between attorney and client. Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981).
KRE 503(b) provides that:
KRE 503(a)(5) states that a communication is deemed
The privilege attaches to confidential communications made for the purpose of facilitating the process of rendering professional legal services to a client; counsel must be acting in the course and scope of employment for the client, and the communication must pertain to the matter within the course and scope of that employment . KRE 503(a)(2); Underwood and Weissenberger, Kentucky Evidence 2001 Courtroom Manual, § 503 (2000).
Hahn at 775-776 (emphasis added).
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). In 97-ORD-127, we stated:
KRS 61.878(1)(l) . . . operates in tandem with KRE 503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege, [which] consists of three elements: The relationship of attorney and client, communication by or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed . Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3rd ed. 1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2nd Cir. 1989). Its purpose is to [e]nsure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. . . . The privilege extends to communications from attorney to client " if they constitute legal advice , or tend directly or indirectly to reveal the substance of a client confidence." Kentucky Evidence Law Handbook at § 5.10 citing United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objective." Kentucky Law Evidence Law Handbook § 5.10.
(Emphasis added). "KRE 503(c) presumes that lawyers have authority to assert the privilege on behalf of clients. It is to be expected that lawyers will claim the privilege for clients in the absence of explicit directions to the contrary." Kentucky Evidence Law Handbook, supra , at § 5.10.
After reviewing the disputed records in camera , we find that Ms. Renneker's descriptions of the withheld records are accurate. Each of the ten records ultimately withheld reflected: 1) a relationship of attorney and client; 2) communication by or to the client relating to the subject matter upon which professional advice was sought; and 3) the confidentiality of the expression for which the protection is claimed. The communications are therefore protected by the attorney-client privilege under KRE 503, as incorporated into the Open Records Act by KRS 61.878(1)(l). Accordingly, the Council properly withheld the e-mails.
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 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 Ms. Gray's letter states that the open records request was received on March 5, 2018. KRS 61.880(1) requires a response "within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The Council's response was due no later than March 8, but the date of the response is March 14, 2018. This delay of six (6) days constitutes a procedural violation of the Act.
2 KRS 61.878(1)(i) and (j) exempts from the Open Records Act, respectively:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
3 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[.]"
4 Ms. Renneker explained that the initial identification of twelve (12) responsive emails was incorrect because one of those emails was determined to be a duplicate. As Ms. Renneker further explained, that same email from Mr. Whitty, the sixth record listed in her description of all the records, was inadvertently sent to Mr. Christopher Bush, Ricketts Law Offices, and the attorney-client privilege was thus destroyed by unintentionally including Mr. Bush on that communication. That email was provided to Mr. Fink with Ms. Renneker's response to the appeal. Thus there are only ten (10) records remaining at issue in this appeal.