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 Department of Insurance violated the Open Records Act in partially denying Joe R. Rowe's October 8, 1999, request for records relating to "the inquiry that was conducted concerning the forgery complaint against [DOI Fraud Division employee] Al Smith." For the reasons that follow, we find that with the exception of a list of state vehicles assigned to Fraud Division employees, which cannot be properly characterized as a preliminary draft or note, DOI properly relied on KRS 61.878(1)(i) and KRS 61.878(1)(l) in partially denying his request.
In a letter dated October 13, 1999, DOI's general counsel, Gale Pearce, agreed to furnish Mr. Rowe with 35 documents which were responsive to his request. These documents consisted of the time records which Mr. Rowe presented to DOI to support his allegations of wrongdoing by Mr. Smith, a letter notifying Mr. Smith that he was being placed on special leave pending an investigation into these allegations, a series of e-mail transmissions relating to the investigation, a letter from Mr. Smith to DOI Commissioner George Nichols, an unclaimed certified letter to Mr. Smith notifying him of DOI's intent to terminate his employment and the reasons therefor, Mr. Smith's letter of resignation, a letter from Commissioner Nichols to Mr. Smith advising him of the results of DOI's investigation, a letter from Commissioner Nichols to Attorney General A. B. Chandler, III, notifying him of the outcome of DOI's investigation and referring the matter to the Attorney General for a determination whether further action was warranted, and a response from Michael Duncan, Director of the Attorney General's Special Investigations Division, to Commissioner Nichols.
DOI declined to furnish Mr. Rowe with a number of documents relating to the investigation on the basis of KRS 61.878(1)(i) and KRS 61.878(1)(l). In her response, Ms. Pearce identified these records, and the statutory basis for denying him access:
1. Handwritten notes of Randy Donahue recording comments made by other persons in the Fraud Division concerning many operational issues. These documents are exempted pursuant to KRS 61.878(1)(i) as being preliminary drafts, notes, correspondence other than correspondence which is intended to give notice of final action of a public agency.
2. Handwritten notes of Suetta Dickinson recording comments made by other persons in the Fraud Division concerning many operational issues. These documents are exempted pursuant to KRS 61.878(1)(i) as being preliminary drafts, notes, correspondence other than correspondence which is intended to give notice of final action of a public agency.
3. Handwritten notes of Suetta Dickinson containing her legal opinions and research regarding this matter. These documents are exempted pursuant to the attorney client privilege.
4. Drafts of letters dated February 5<th> to Al Smith, March 5<th> to Al Smith, March 5<th> to the Attorney General contained in the files of Randy Donahue and Suetta Dickinson. The final version of the letters are included in the documents . . . provided. These documents are exempted pursuant to KRS 61.878(1)(i) as being preliminary drafts, notes, correspondence other than correspondence which is intended to give notice of final action of a public agency.
5. Emails regarding handling investigative and administrative procedures of the Fraud Division. These documents are exempted pursuant to KRS 61.878(1)(i) as being preliminary drafts, notes, correspondence other than correspondence which is intended to give notice of final action of a public agency.
6. Draft of memo from Joe Cohen dated December 22. This document is exempted pursuant to KRS 61.878(1)(i) as being preliminary drafts, notes, correspondence other than correspondence which is intended to give notice of final action of a public agency.
7. List of state vehicles assigned to Fraud Division employees. This document is exempted pursuant to KRS 61.878(1)(i) as being preliminary drafts, notes, correspondence other than correspondence which is intended to give notice of final action of a public agency.
We affirm DOI's denial of items one through six, but find that its reliance on KRS 61.878(1)(i) to deny Mr. Rowe access to item seven, the list of state vehicles assigned to Fraud Division employees, was misplaced.
On October 21, Ms. Pearce submitted a supplemental response to Mr. Rowe's open records complaint that the materials contained in DOI's files relative to this matter forfeited their preliminary characterization upon final agency action, and that the materials were not shielded from disclosure by the attorney-client privilege since said privilege does not apply when an attorney for the state performs an official duty "at the request of another state employee." She reaffirmed that only those records prepared by attorney Suetta Dickinson which clearly fell within the attorney-client privilege were withheld. With respect to preliminary drafts and notes which qualify for exclusion under KRS 61.878(1)(i), Ms. Pearce explained:
Handwritten notes taken by both Randy Donahue and Suetta Dickinson are excepted pursuant to KRS 61.878(1)(i). The Commissioner requested Mr. Donahue and Ms. Dickinson to obtain the thoughts, feelings and opinions of the employees in the Fraud Division regarding many operational issues. Members were invited to freely express themselves regarding not only the operational issues in the Fraud Division, but anything else that was concerning them.
KRS 61.878(1)(i) excepts certain documents that are preliminary drafts, notes, correspondence other than correspondence which is intended to give final notice of a final action of a public action. Both the courts and your office have spent a considerable amount of time in interpreting this section. As indicated in City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982), notes of the fact finder (such as the Internal Affairs Division of the Louisville Police Department) are within the exception, so long as the notes or recommendation are not part of the final action. See also 97-ORD-168.
Mr. Donahue and Ms. Dickinson served as the fact finder regarding the investigation of Mr. Smith, as well as other operational issues in the Fraud Division. These notes were never reviewed by the Commissioner, and were not part of the final decision as it relates to Mr. Smith's investigation. Mr. Donahue and Ms. Dickinson did not submit any written recommendation to the Commissioner regarding their fact-finding investigation as it relates to Mr. Smith.
. . .
Drafts of letters are also not available for inspection. This was explained to Mr. Rowe in our response. Preliminary drafts are specifically excepted pursuant to KRS 61.878(1)(i). However, the final letters are available for Mr. Rowe's inspection.
Emails regarding investigative and administrative procedures of the fraud division were physically included in the files. The emails that related to the administrative procedures in the fraud division were not included because they were addressing issues that did not pertain to the investigation of Mr. Smith. These documents were excluded on the basis of KRS 61.878(1)(i). Emails regarding the actual investigation of Mr. Smith could have also been excluded under KRS 61.878(1)(i) however, those documents are included in the documents available to Mr. Rowe as set forth in our response.
A draft of a memorandum from Joe Cohen to Joe Rowe dated December 22 was not provided. This memo was never delivered to Mr. Rowe and therefore is a preliminary draft of a memo. This document is excluded pursuant to KRS 61.878(1)(i).
A list of state vehicles assigned to the Fraud Division was included in the files. This document was related to the operational issues being investigated and was not considered in the final action of the investigation of Mr. Smith. As such, it was a preliminary draft and note, exempted under KRS 61.878(1)(i).
We address the propriety of DOI's refusal to release these records to Mr. Rowe.
Records excluded from inspection by KRS 61.878(1)(l) and KRE 503
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 KRE 503 to exclude from public inspection public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege:
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;
(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.
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 (7<th> 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.
Contrary to Mr. Rowe's apparent belief, 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 Ms. Dickinson's legal analysis of the issue of Mr. Smith's termination, DOI dealt with its attorney as would any private party seeking counsel. The documents withheld were prepared in the course of this attorney-client relationship in order to provide DOI with advice on the legal considerations and ramifications of its actions, thus satisfying the first and second parts of the three-part test. It appears that confidentiality was expected in the handling of these documents, and that attempts were made to insure that the information contained therein was protected from general disclosure. Thus, DOI also affirmatively satisfied the third part of the test. 1 We affirm its decision to withhold these records on this basis.
Records excluded from inspection by KRS 61.878(1)(i)
The majority of the documents withheld by DOI consisted of preliminary drafts, notes, and email transmissions. In denying Mr. Rowe access to these records, DOI relied on KRS 61.878(1)(i) which excludes from public inspection:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency [.]
It is the opinion of this office that DOI's denial of this portion of Mr. Rowe's request does not offend the Open Records Act.
In an early open records opinion, the Attorney General recognized:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(i). Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2. In a more recent decision, this office dissected the language of the exemption:
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary , 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory. . . ." [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67. (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
97-ORD-183, p. 4. Resolution of this appeal turns on the issue of whether the records withheld qualify for exclusion from public inspection as preliminary drafts or notes.
We find that the records identified in items one and two of Ms. Pearce's original response to Mr. Rowe's request can properly be characterized as notes. These handwritten notes of employee interviews represent a brief record written down to aid the memories of Mr. Donahue and Ms. Dickinson, and are in the nature of the tools used in hammering out official action rather than the official action itself. See OAG 79-333; OAG 88-32; 93-ORD-67.
Similarly, we find that the records identified in items four and six of Ms. Pearce's response can properly be withheld as preliminary drafts. Mr. Rowe was furnished with the final rendition of each of the draft documents withheld. The latter represented nothing more than a tentative version, sketch, or outline of the formal and final written product. See, OAG 89-34; 93-ORD-125; 94-ORD-38. The same reasoning may be extended to e-mail transmissions. The latter category of documents would also qualify for exclusion under authority of KRS 61.878(1)(j) as:
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
To the extent that these communications consisted of electronic intra-office memoranda in which opinions were expressed, but not adopted into final agency action, they were properly withheld.
Our position is not altered by the fact that DOI exercised its discretion in favor of disclosing some records which fell within the parameters of one or more of the exceptions to public inspection. As we noted in an early opinion:
The Open Records Law does not provide any mandate against the opening for inspection of any public records, even records which may be exempt from the requirements of being open for inspection.
OAG 79-326, p. 3 (citing OAG 79-275 for the proposition that "the custodian of the records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 . . ."). By exercising its discretion in favor of disclosure of records which were at least arguably exempt under the Open Records Act, DOI promoted the goal of agency accountability and facilitated public oversight of its operations. It did not waive its right to withhold particular records under a properly invoked exception to public inspection, namely KRS 61.878(1)(i) or (j).
Records not excluded from inspection by KRS 61.878(1)(i)
We do not share DOI's view that the list of state vehicles assigned to Fraud Division employees can be characterized as a preliminary draft or note. The list was not created as an aid to memory or as the basis for a fuller statement. Nor does the list represent a tentative version, sketch, or outline of a formal and final written product. Rather, it is in the nature of a vehicular inventory, reflecting the names of the state employees to whom the vehicles are assigned and other identifiers. Like other records reflecting state-owned property, and the individual to whom it is assigned, it is a nonexempt record in which the public has a legitimate interest. 2 The document, although subject to revision or amendment, is final unto itself, and does not qualify for exclusion as a preliminary draft or note.
Conclusion
With the exception of the state vehicle list, which we believe was erroneously withheld, we affirm the Department of Insurance's partial denial of Mr. Rowe's request. Consistent with the rule of law set forth in City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App. 637 S.W.2d 658 (1982), DOI furnished Mr. Rowe with the records which prompted the investigation into Mr. Smith's activities, records reflecting the results of its investigation, and records reflecting the final agency action taken (which in this case was preempted by Mr. Smith's resignation). DOI exercised its discretion in releasing additional records which it might otherwise have withheld including various emails. The fact that Mr. Rowe's complaint prompted the investigation does not give him any greater entitlement to these records. We find no error in DOI's handling of Mr. Rowe'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.
Footnotes
Footnotes