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 City of Ludlow violated the Open Records Act in the disposition of attorney Matthew Dusing's June 29, 2018, for various records on behalf of his client, Paul Miller, an individual who had sought to obtain city approval for proposed uses of certain properties. For the reasons stated below, we find a partial violation of the Act.
Mr. Dusing divided his request into ten numbered categories, asking for:
1. All written communications in 2018 between Nancy Mullins and the current city attorney.
2. All written communications in 2018 between Nancy Mullins and the former city attorney.
3. All written communications in 2018 between Nancy Mullins and city employee Elishia Chamberlain.
4. All written communications in 2018 between Nancy Mullins and Ludlow Mayor Ken Wynn.
5. All written communications in 2018 regarding Paul Miller's Oak and Davies properties sent or received by the current or former city attorney, Elishia Chamberlain, Mayor Wynn, and city employee Tom Garner.
6. All written communications regarding a proposed text amendment for the Marquee for the Ludlow Theater at 322 Elm Street sent or received by the current or former city attorney or Elishia Chamberlain.
7. All written communications in 2018 between the Northern Kentucky Area Development District and the current or former city attorney, Elishia Chamberlain, Ken Wynn, or Tom Garner.
8. "All written communications from August 2017 to February 1, 2018 between Fred Johnson and Adam Wisler."
9. "All written communications from August 2017 to February 1, 2018 between Jeff Otis and Adam Wisler."
10. "The UDRB Approval Letter of Fagade funding for Paul Miller in 2017. There was more than one letter sent, this one reflects approval."
(Emphasis omitted.)
On July 3, 2018, city attorney Frederick Johnson responded to the request on behalf of the City of Ludlow. Without addressing any particular records or categories of records, he stated:
Dear Matt, after considering your request, I find that the records you requested are exempt under the open records act because they were either prepared by me, Jeff Otis, or at my direction or within my investigative process and are documents or communications which are either preliminary recommendations, preliminary memoranda, privileged attorney client communications, communications created for the purpose of rendering legal advice and services to my client, and are attorney work product communications. My opinion is supported by a number of OAG opinions, caselaw, and statutory authority. Thanks[.]
The response, however, identified none of these "opinions, caselaw, and statutory authority. " KRS 61.880(1) provides:
Each public agency . . . shall notify in writing the person making the request . . . of its decision. An 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.
(Emphasis added.) See also
Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1996). The city's failure to state a statutory exception under KRS 61.878(1) or explain its application to particular records violated of the Open Records Act.
In a communication dated August 16, 2016, responding to this appeal on behalf of the City of Ludlow, Mr. Johnson stated: "I have gone ahead and given the UDRB letters to Mr. Dusing." This renders the appeal moot as to item 10 of the request.
As to the remaining items, we requested an in camera review of the responsive records pursuant to KRS 61.880(2)(c) and the city complied. We find no records responsive to items 2, 7, 8, or 9 of the request. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In this case, however, the City of Ludlow did not affirmatively so state as to items 2, 7, 8, and 9 (and still has not expressly done so). The response to Mr. Dusing, therefore, did not discharge the city's duty. See, e.g. , 02-ORD-144 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to [state their nonexistence] in clear and direct terms . . . . While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient"). Thus, the city committed another procedural violation of the Act.
Attorney-client privilege
Although the City of Ludlow has cited no legal authority in support of its claim of privilege for the communications at issue, 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 court reasoned that 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)." 80 S.W.3d at 775.
As the Hahn court noted, KRE 503(b) provides that:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:
(1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer.
. . .
(4) Between representatives of the client or between the client and a representative of the client[.]
"KRE 503(a)(5) states that a communication is deemed '"confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.' 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)." 80 S.W.3d at 775 (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.)
"Communications" between attorney and client, for purposes of the privilege, are not limited to "verbal exchanges of pertinent information," but may include "physical acts that are disclosive in nature," such as "[t]he delivery of a document." Kentucky Evidence Law Handbook, supra , at § 5.10 (citing
Phoenix Ins. Co. v. Wintersmith, 30 Ky. L. Rptr. 369, 98 S.W. 987 (1907)). Accordingly, an attachment or enclosure may, in appropriate circumstances, be subject to the privilege. 18-ORD-102. Finally, "[a] client who discloses confidential information to persons outside the lawyer-client relationship (or authorizes counsel to do the same) loses the protection of the privilege." Kentucky Evidence Law Handbook, supra , at § 5.10 (citing
Hyden v. Grissom, 306 Ky. 261, 206 S.W.2d 960 (1947)).
In this case, the withheld records include numerous e-mails between Mr. Johnson and representatives of the City of Ludlow. Those representatives include Elishia Chamberlain, Mayor Ken Wynn, and Tom Garner (listed in item 6 of the request). Other representatives of the City of Ludlow include Tom Amann, Eric Love, Josh Boone, and Scott Smith, as well as Patrick Snadon, a member of the city's Urban Design Review Committee. 1 We find, upon examination, that those e-mails were sufficiently related to matters on which Mr. Johnson was providing legal advice to the city to fall under the attorney-client privilege, so long as confidentiality was maintained.
In the case of many e-mails with Mr. Johnson, however, the city did not maintain confidentiality. A number of those communications were shared with persons outside the lawyer-client relationship, such as Mr. Dusing's client Paul Miller; Mr. Dusing's employer, attorney Shannon Smith; Mr. Miller's architect; and Nancy Mullins, a member of the public similarly situated to Mr. Miller. 2 The inclusion of these individuals constituted a waiver of any attorney-client privilege, and thus with regard to those e-mails the city may not rely on such a claim of privilege.
Some of the withheld e-mails do not include Mr. Johnson, and therefore are simply communications between or among representatives of the City of Ludlow. Such communications are only privileged if they are "made for the purpose of facilitating the rendition of professional legal services to the client." KRE 503(b)(4). Since we do not find this to have been the case with most of these e-mails, they not protected by attorney-client privilege. The exception is a March 27, 2018, e-mail from Tom Amann to Mayor Wynn, which does appear to have been in facilitation of professional legal services and therefore is privileged.
Similarly, e-mails between Fred Johnson and persons who were not his clients or representatives of his client (including but not limited to Nancy Mullins, named in item 1 of the request) are not subject to privilege. Furthermore, communications between Nancy Mullins and representatives of the City of Ludlow (items 3 and 4 of the request) are in no sense protected by attorney-client privilege.
Also incorporated into the Open Records Act by KRS 61.878(1)(l) is the work product doctrine codified in CR 26.02(3)(a), which protects from disclosure "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party" in contemplation of litigation. 07-ORD-147 (citing 98-ORD-156 and 00-ORD-99). In this case, we need not address the city's assertions regarding the work product doctrine, since any of these communications constituting attorney work product would already be covered by attorney-client privilege.
Preliminary recommendations or memoranda under KRS 61.878(1)(j)
The City of Ludlow makes a blanket assertion that responsive records constitute "preliminary recommendations" or "preliminary memoranda," implicitly invoking the protection of KRS 61.878(1)(j). That subsection creates an exception to the Open Records Act in the case of:
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
This office has described the purpose underlying KRS 61.878(1)(j) as follows: "To preserve the integrity of a public agency's internal decision making process by promoting full and frank discussion between and among public employees and officials and by equipping them with the tools needed in hammering out official action, 'the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality' in pre-decisional records not adopted in that official action." 14-ORD-014 (emphasis added) (quoting
Beckham v. Board of Educ. of Jefferson Cnty., 873 S.W.2d 575, 578 (Ky. 1994)).
Many of the communications in dispute are between representatives of the City of Ludlow (including the city attorneys) and Paul Miller, the Shannon Smith law office representing him, or his architect, and are concerned with Mr. Miller's efforts to secure city approval for his proposed uses of the Ludlow Theater at 322 Elm Street and other properties described in the request as "Paul Miller's Oak and Davies properties" (encompassed within items 5 and 6 of the request). Communications of this nature are not "internal" discussions "between and among public employees and officials" which are protected by KRS 61.878(1)(j). Rather, these e-mails were communications by a public agency with outside individuals concerning a matter over which the agency had authority to act. Therefore, they did not constitute "preliminary recommendations" or "preliminary memoranda" within the meaning of the statute. Cf . 16-ORD-256; 18-ORD-134 (agency's communications with outside entity about a matter over which it had regulatory authority were not "preliminary" under KRS 61.878(1)(i)-(j)). For the same reason, any communications between Nancy Mullins and the various representatives of the City of Ludlow (items 1, 3, and 4 of the request) were not "preliminary" under KRS 61.878(1)(j).
Also within the scope of items 5 and 6 of the request are certain communications among representatives of the City of Ludlow, but not involving a city attorney, which might potentially qualify as "preliminary recommendations" or preliminary memoranda" expressing opinions or recommendations under KRS 61.878(1)(j) if they meet the conditions for the exception. In
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes a basis for the final agency action. "In our view, the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing City of Louisville, supra).
Specifically, an e-mail dated December 28, 2017, from Eric Love to Elishia Chamberlain and Scott Smith contains an expression of opinion, but the limited record indicates that the city relied upon that opinion as the basis of final action in the matter at issue, thus rendering KRS 61.878(1)(j) inapplicable. Two other e-mails, between Elishia Chamberlain and Patrick Snadon on May 27, 2017, contain opinions and/or recommendations, which may be redacted 3 if they did not form the basis of final agency action; however, the record is insufficient for us to conclude whether they were so adopted.
The remaining disputed communications, other than those which we have already found are protected by attorney-client privilege, do not appear to contain statements of opinion or recommendation, and we therefore find that the City of Ludlow has failed to meet its burden of proof as to those records. Accordingly, we conclude that the City of Ludlow substantively violated the Open Records Act as to all responsive records for which neither KRS 61.878(1)(j) nor the attorney-client privilege was properly applicable.
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 Some e-mails responsive to item 6 of the request include Rob Himes, a Code Administrator with Planning and Development Services of Kenton County ("PDS"), and Brian Sims and Jeff Bechtold, also with PDS. According to its website, PDS is a city-county agency providing services to Kenton County's 20 local governments and their collaborative Kenton County Planning Commission. http://www.pdskc.org/about-us/pds-council.aspx (last visited September 5, 2018). For purposes of the e-mails at issue, it appears that Messrs. Himes, Sims, and Bechtold were acting as agents of the City of Ludlow in a matter on which counsel was providing legal advice, and accordingly may also be regarded as representatives of the client for purposes of attorney-client privilege.
2 In addition to those e-mails to which Nancy Mullins was initially a party, we find that the city waived attorney-client privilege as to a January 3, 2018, e-mail to Mr. Johnson, which Elishia Chamberlain forwarded to Ms. Mullins on March 22, 2018.
3 KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."