Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Revenue Cabinet properly relied on KS 61.878(1)(l), KRE 503, and CR 26.02(3)(a), as well as KRS 61.878(1)(a), (i), and (j), in denying Celia Dunlap's request for copies of memoranda and other written communications, drafts of memoranda and other written communications, and notes, diaries, and other written communications concerning her which are in the Cabinet's custody. Ms. Dunlap is an employee of the Revenue Cabinet. For the reasons that follow, we find that the Cabinet properly invoked KRS 61.878(1)(l), KRS 422A.0503 and CR 26.02 to support nondisclosure of documents responsive to Ms. Dunlap's request which directly relate to either of the two pending personal actions which she has filed against the Cabinet, and which satisfy each of the requirements set forth in KRS 422A.0503, or can be characterized as "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of "the Cabinet concerning those actions. All other documents in the custody of the Cabinet that are responsive to Ms. Dunlap's request must be released to her pursuant to KRS 61.878(3), KRS 61.878 (1)(a), (i), and (j) notwithstanding.
On June 25, 1998, Ms. Dunlap submitted an open records request to Sarah Jane Schaaf, Secretary of the Kentucky Revenue Cabinet, for:
1. Copies of all memorandums [sic] and any other written communications, signed by employees of the Division of Legal Services, and/or the Commissioner of the Department of Law, and/or the Office of the Secretary issued internally and/or to other agencies of state government, the Governor's Office, outside counsel, and/or other entities wherein my name is directly or indirectly referenced, or any matters concerning me or directly or indirectly referenced.
2. Copies of all drafts of memorandums [sic] or other written communications by or between employees of the Division of Legal Services, and/or the Commissioner of the Department of Law, and/or the Office of the Secretary, and/or other agencies of state government, the Governor's Office, outside counsel, and/or other entities wherein my name is directly or indirectly referenced, or any matters concerning me or directly or indirectly referenced.
3. Copies of any and all notes, diaries, and any other written documentation concerning me directly or indirectly, created, prepared, or maintained by employees of the Division of Legal Services, and/or the Commissioner of the Department of Law, and/or other Senior Management of the Kentucky Revenue Cabinet, including, the secretary, Deputy Secretary Executive Director, Office of Financial and Administrative Services and the Human Resources Branch, and/or outside counsel wherein my name is directly or indirectly referenced, or any matters concerning me or directly or indirectly referenced.
Ms. Dunlap's request was referred to Stoll, Keenon & Park, LLP, the law firm representing the Cabinet in her personnel actions against it, for response.
On June 30, 1998, the Cabinet, through counsel, denied Ms. Dunlap's request. Citing first the exemptions codified at KRS 61.878(1)(a), (i), and (j), which exclude from public inspection records containing personal information the disclosure of which would constitute a clearly unwarranted invasion of privacy and records which are preliminary in character, the Cabinet noted:
By its express terms, Ms. Dunlap's request seeks notes, preliminary drafts and preliminary memoranda and other documents that reflect, express, formulate or recommend policy. Accordingly, the exemptions quoted above apply.
The Cabinet's "basic position," however, was "that the documents requested by Ms. Dunlap are excluded from public inspection as protected both by the attorney-client privilege and work product protection." Elaborating on this view, the Cabinet explained:
An exemption from the Open Records law under KRS 61.878(1)(l) is provided for:
To the extent that documents exist which would be deemed responsive to the request made by Ms. Dunlap, those documents or materials were addressed to or prepared or assembled by legal counsel for the Commonwealth of Kentucky and were made for the purpose of facilitating the rendition of professional legal advice to the client - e.g., responding to then-pending personnel matters as well as in anticipation of litigation growing out of those matters. To the extent documents and materials exist which would be deemed responsive to the request made by Ms. Dunlap, these materials were prepared in anticipation of litigation and reflect or express the mental impressions, conclusion, opinions or legal theories of the Commonwealth's legal counsel, both outside counsel and counsel for the Cabinet who are employees of the Cabinet. Accordingly, these documents and materials are exempt from disclosure under KRS 51.878(1)(l) as work product protected and lawyer-client privileged communications.
Relying on various opinions of this office in which the Attorney General has recognized that records which are privileged or which represent the work product of an attorney are excluded from the application of the Open Records Act, the Cabinet issued a blanket denial of Ms. Dunlap's request. We find that the Revenue Cabinet's response was only partially consistent with the Open Records Act.
KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In construing KRS 61.878(3), the Attorney General has observed:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible [s] on a register." When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
97-ORD-87, p. 4. As a public agency employee, Ms. Dunlap is endowed with a broader right of access to records relating to her than the public's general right of access to those records. Records which would otherwise be shielded from disclosure as an unwarranted invasion of personal privacy (KRS 61.878(1)(a)), or as preliminary drafts or notes (KRS 61.878(1)(i)), or preliminary recommendations or memoranda in which opinions are expressed (KRS 61.878(1)(j)), as to third persons, must be made available to Ms. Dunlap if they relate to her.
As noted above, the "exception to the exceptions" admits of four exceptions. A public agency employee is not entitled to inspect any examination or any documents relating to ongoing criminal or administrative investigations by an agency. Nor is the employee entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)) or records or information made confidential by enactment of the General Assembly (KRS 61.878(1)(l)).
In 96-ORD-40 this office affirmed the Cabinet for Human Resources' denial of an employee's request for all records relating to the Cabinet investigation of the employee's compensatory time. Although the Cabinet opened its files to the employee, it withheld "communications between the Office of Counsel and the Office of Personnel and Budget or among counsel within the Office of Counsel and transcripts of interviews conducted by the Office of General Counsel relating to the review" on the basis of KRS 61.878(1)(l) and the doctrine of work product and attorney client privilege. Rejecting the employee's argument that he was entitled to full access to these records under KRS 61.878(3), the Attorney General opined:
KRS 61.878(1)(l) authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 422A.0503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRS 422A.0503(2) establishes the general rule of privilege:
The privilege thus consists of three elements: The relationship of attorney and client, a communication by or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the communication for which the protection is claimed. R. Lawson, Kentucky Evidence Law Handbook § 5.10 at 232, 233 (1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989);United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). Its purpose is to insure that client confidences to an attorney are protected, thereby encouraging clients to freely communicate with their attorneys. The privilege "must be strictly construed and given no greater application than is necessary to further its objectives." Kentucky Evidence Law Handbook , § 5.10 at 232.
It is clear that an agency can be a "client" and agency lawyers can function as "attorneys" within the relationship contemplated by the privilege. 94-ORD-99. In seeking legal advice from Office of the Counsel, the Cabinet dealt with its attorneys as would any private party seeking counsel. To insure full and frank communication, the same assurance of confidentiality was necessary. Moreover, the attorney-client privilege has pervasive application, extending to legal matters of all types (civil and criminal) and not just to matters related to litigation. Kentucky Evidence Law Handbook, § 5.10 at 231. Clearly, the documents withheld were drafted and exchanged in the course of this attorney-client relationship in order to provide the Cabinet with advice on the legal considerations and ramifications of its actions, thus satisfying the first and second parts of the three part test.
It is equally clear that confidentiality was expected in the handling of these documents, and that attempt was made to insure that the information contained therein was protected from general disclosure. The Cabinet has continually maintained and asserted the attorney-client privilege with respect to these documents. It continues to do so up to the present. In our view, the Cabinet has affirmatively satisfied the third part of the test.
96-ORD-40, pp. 4, 5.
In responding to Ms. Dunlap's request, the Revenue Cabinet has done little more than cite the relevant exception to public inspection and reference three opinions of this office which arguably support its view. The Cabinet has offered virtually no proof that all of the records identified in Ms. Dunlap's request were generated in the course of the attorney client relationship, represent a communication by or to the client relating to the subject matter upon which professional advice was sought, or were handled in a confidential manner, thus qualifying for exclusion as records protected by the attorney client privilege, or that they consist of "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative" of the Cabinet concerning Ms. Dunlap's personnel actions, thus qualifying for exclusion as attorney work product. Given the scope of her request, and the duration of her employment in the Revenue Cabinet, we find it unlikely that every memorandum or other written communication or draft of same, and every note, diary, or other written communication, which was prepared by the persons or offices she named, and which relates to her, can properly be characterized as records qualifying for exclusion under the attorney client privilege and the work product doctrine.
The Kentucky Court of Appeals has stated that "the language of the statute directing agency action [in responding to an open records request] is exact." Edmondson v. Alig, Ky.App., 926 SW2D 856, 858 (1996).KRS 61.880(1):
requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response . . . [does not] even remotely comply with the requirements of the Act--much less . . . amount [] to substantial compliance.
Id. Simply stated, in responding to Ms. Dunlap's request the Revenue Cabinet paints with broad brush strokes and entirely omits the details.
We therefore find that although the Cabinet may properly withhold those records which satisfy the requirements of KRS 442A.0503 and CR 26.02(3)(a) relative to the two pending personnel actions, it "cannot withhold every document which relates to a particular matter under KRS 61.878(1)[(l)] and the attorney/client work product doctrine simply because it is represented by an attorney in the matter." OAG 91-109, p. 4 citing OAG 88-25. The Cabinet is obligated to disclose all records which do not fall squarely within the parameters of the exception, or, consistent with the principles set forth above, to affirmatively, and in good faith, state that no other nonexempt records exist which are responsive to Ms. Dunlap's request.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.