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 City of Louisville violated the Open Records Act in responding to Royden K. Cullinan's September 29, 1999, request for records. For the reasons that follow, we find that the city's response constituted a partial violation of the Act.
In his September 29 application to inspect public records, Mr. Cullinan requested access to records reflecting the following:
1. The original and/or any revised amount set aside or charged to expense and reflected in the City's Insurance and Risk Management Fund under "Liability for incurred claims" or "Claims and judgments payable" or Reserved for claims" pertaining to Cullinan, et al v Abramson, et al.
2. The amount of excess liability coverage per occurrence purchased by the City through LAGIT.
3. LAGIT meeting minutes and annual reports from 1/1/94 through 9/1/99.
4. Correspondence from Kevin O'Donnell or the City of Louisville to the LAGIT board or [sic] trustees and/or correspondence from LAGIT to Kevin O'Donnell or the City of Louisville regarding Cullinan, et al v Abramson, et al from 1/1/94 to 9/1/99.
5. The firm or firms currently employed to manage LAGIT's assets.
6. Correspondence from the City of Louisville to LAGIT requesting indemnification of Jerry Abramson, Christina Heavrin, Stuart Jay, Mac Unger, John Nevin and Andy Cherry.
Shortly after receiving this request, the city advised Mr. Cullinan that it would "take approximately 5-7 days to compile the records if such records exist."
On October 14, Assistant Director of Law, Stephanie Harris, formally responded on behalf of the city as follows:
With regards to item # 2, I am advised that the amount of Excess Liability coverage per occurrence purchased by the City through LAGIT depend [sic] upon the actual time frame in question. From January 1, 1987 until July 1, 1998 the policy limits in force applicable to the City of Louisville through LAGIT were $ 5,000,000 per occurrence or wrongful act, subject to all policy limitations and exclusions. Subsequent to July 1, 1998, available policy limits for the City through LAGIT were amended to between $ 5,000,000 and $ 20,000,000 per occurrence or wrongful act. Again, please be advised that this is subject to all policy limitations and restrictions in both the LAGIT and commercial excess policies.
With regards to item # 3 and # 7, you may contact Ms. Sara Parks in the Department of Finance and Budget at 574-3211 to make an appointment to review and/or copy the records.
With regards to item # 5, I am advised that the firm employed to manage LAGIT's assets is Fifth Third Bank.
The remainder of your request for items # 1, # 4 and # 6 is denied pursuant to KRS 61.878(1)(i), (j) and (l) (preliminary drafts, notes, internal, inter-office correspondence, attorney-client privilege and work product) . Additionally, you are a principle of a party and the son of another party to the litigation you reference and the exempt materials are also exempt under subsection 1 of KRS 61.878, (parties cannot use the open records law to get around discovery procedures).
Dissatisfied with the city's response, Mr. Cullinan notified Ms. Harris that the response was deficient insofar as it did not contain a brief explanation of how the cited exceptions applied to the records withheld, and challenged her interpretation of KRS 61.878(1). He commented:
That section of the statute does not, as you seemingly contend, give the City of Louisville a blanket exception to deny records. May I also refer you to 95-ORD-19 which found improper a previous attempt by the City Law Department to use the aforementioned subsection of KRS 61.878 to withhold public records. In addition, as I am not a party to the litigation to which you refer, according to the Kentucky Open Records Act my relationship to parties in that litigation is wholly irrelevant.
Mr. Cullinan expressed his expectation that the city would furnish him with "a new, procedurally compliant response to [his] September 29, 1999, request, within the required three working days."
On October 20, Ms. Harris reaffirmed the city's position, asserting that its answer "was procedurally compliant" and substantively correct. She observed:
I am surprised at your response concerning your relationship with Cullinan Associates, Inc. Cullinan Associates, Inc. is a party to the lawsuit you referenced in your request. You are a corporate officer of Cullinan Associates, Inc. It is rather evident that you are requesting the records for or on behalf of your corporation, a party to the litigation. Additionally, it is apparent that you are also requesting the records on behalf of your father, R. Keith Cullinan, a plaintiff in the lawsuit against the City and other officials. Accordingly, your father and your company should contact their attorney in the litigation and utilize discovery rules, not open records law, to obtain the records, if they are discoverable.
In closing, she suggested that if Mr. Cullinan was no longer a corporate officer of Cullinan Associates, Inc., and if he was not requesting the records on behalf of his father, R. Keith Cullinan, or Cullinan Associates, Inc., he should so advise the city which would then reevaluate its position. Eight days later, Mr. Cullinan initiated this appeal.
In a supplemental response directed to this office, Ms. Harris emphasized that only three categories of records remain in dispute:
1. The original and/or revised amount set aside or charged to expense and reflected in the City's Insurance and Risk Management Fund under "Liability for incurred claims" or "Claims and judgments payable" or "Reserved for claims" pertaining to Cullinan, et al v. Abramson et al.
4. Correspondence from Kevin O'Donnell or the City of Louisville to the LAGIT board of trustees and/or correspondence from LAGIT to Kevin O'Donnell or the City of Louisville regarding Cullinan, et al v. Abramson, et al. From 1/1/94 to 9/1/99.
7. Correspondence from the City of Louisville to LAGIT requesting indemnification of Jerry Abramson, Christina Heavrin, Stuart Jay, Mac Unger, John Nevin and Andy Cherry.
In support of the city's argument that its response was "procedurally compliant, " Ms. Harris noted:
In accordance with KRS 61.880(1) our reference to KRS 61.878(1)(i), (j) and (l) identified the specific exception to which the records were being withheld. In addition to stating the exception, we "briefly identified" how the exception applied to the record by briefly describing that the nature of the records were preliminary drafts, notes, internal, inter-office correspondence, attorney-client privilege and work product.
With reference to the city's reliance on KRS 61.878(1), Ms. Harris explained:
When the person requesting the record is either a party to litigation or acting on the party's behalf, the General Assembly intended that the open records act not be used as an alternative to discovery. In OAG 89-65, it was noted that it was "not the intention of the Attorney General to suggest that the Open Records Act be used by parties to litigation as a substitute for request under discovery procedures associated with civil litigation. " The General Assembly codified that principle when it amended KRS 61.878(1) in 1992. A party in civil litigation must use the proper mechanism for obtaining records relating to litigation and in the case of pending litigation the proper mechanism for obtaining such records is discovery.
. . .
The plaintiffs in the federal lawsuit referenced by Mr. Cullinan are R. Keith Cullinan and Cullinan Associates, Inc. R. Keith Cullinan is Royden K. Cullinan's father. Royden K. Cullinan is a principal officer (secretary and agent of process) in Cullinan Associates, Inc. (Exhibit B & C).
It is the city's position that KRS 61.878(1) "does not require that the records be the subject of any court order or that the records fall outside the rules of discovery to fall within its terms." Because Mr. Cullinan has not specifically denied that he is requesting the records on behalf of his father or Cullinan Associates, Inc., Ms. Harris urged this office to conclude "that Royden K. Cullinan is attempting to obtain records outside the rules of discovery pertaining to litigation involving a corporation of which he is an officer, and his father, both of whom are parties to the litigation." Ms. Harris enclosed a copy of an entry from the Kentucky Secretary of State's website which reflects that Royden K. Cullinan currently serves as Secretary for Cullinan Associates, Inc.
Regardless of the application of KRS 61.878(1) to the records withheld, Ms. Harris reaffirmed the city's view that "the records in question are preliminary drafts, memorandum [sic], notes, internal interoffice [sic] correspondence, attorney-client privilege, work product. " She observed:
For instance, some of the information requested by Mr. Cullinan is the original amount or any revised amount of the City's reserves for claims set aside or charged to expense and in the City's Insurance and Risk Management Fund. We are not surprised that a litigant against the City would like to know how much value the City has placed on a case. Such information would, no doubt, prove invaluable in the litigant's development of a settlement or mediation strategy.
Ms. Harris did not further elaborate. While we concur with the city in its view that Mr. Cullinan was acting on behalf of Cullinan Associates, Inc., in requesting these records, we are not persuaded that he is therefore entirely foreclosed from access to records pertaining to the litigation. Nor are we persuaded that the city discharged its duty under KRS 61.880(1) by adequately explaining how the exceptions it relied on apply to the records withheld.
We begin by recognizing that sufficient objective indicia exist to establish an identity of purpose between Royden K. Cullinan and R. Keith Cullinan and Cullinan Associates, Inc., and to undermine Royden K. Cullinan's assertion that he is not trying to circumvent the rules of discovery for a party litigant. In 99-ORD-92, this office addressed the issue "whether KRS 61.878(1) applies to anyone attempting to obtain information for a litigant outside the rules of discovery as well as the litigant himself (or an attorney acting on behalf of the litigant)." At pages 7 and 8 of that decision, we observed:
In 94-ORD-19, the Attorney General held that KRS 61.878(1) could not be invoked by a public agency to deny non-litigants access to public records which relate to a pending civil action. See also Department of Corrections v. Courier-Journal and Louisville Times, Ky.App., 914 S.W.2d 349 (1996) (affirming 94-ORD-19).
In 95-ORD-18, the Attorney General held that the provision:
95-ORD-18, p. 4. In 94-ORD-19, we recognized that this narrow construction creates the potential for abuse of KRS 61.878(1). At page three of that decision, we expressed concern that "litigants may circumvent the provision [KRS 61.878(1)] by securing 'materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery' through individuals who are not parties to litigation." On appeal of 94-ORD-19, the Franklin Circuit Court addressed this concern, holding that KRS 61.878(1) "would also apply to anyone attempting to obtain this information for a litigant outside the rules of discovery. " Department of Corrections v. Courier-Journal and Louisville Times Company , Franklin Circuit Court, Civil Action No. 94-CI-00457, Division 1, entered July 27, 1994, at page 2.
There, we concluded that the public agency had provided "sufficient bases . . . to establish [the requester] is attempting to obtain this information for [a litigant] outside the realm of discovery. " 99-ORD-92, p. 8, 9. These "bases" included prior professional associations between the requester and the litigant, and the fact that the requested records were the same records which the litigant had unsuccessfully attempted to obtain through discovery. Compare 99-ORD-125 (agency fails to establish that nonlitigant requester was seeking to obtain records on behalf of litigant, and therefore KRS 61.878(1) was improperly invoked as the basis for denying her access).
Royden K. Cullinan is biologically related to, and professionally associated with, R. Keith Cullinan, the plaintiff in the federal lawsuit to which his records request directly relates. We proceed no further in our analysis. It defies logic to suggest that Royden K. Cullinan's interest in these records is that of a disinterested third party, or purely academic. Although Royden K. Cullinan is not a named party in the federal lawsuit, KRS 61.878(1) applies to him as a person "attempting to obtain . . . information for a litigant outside the rules of discovery. Department of Corrections at page 2. On this issue, we concur with the City of Louisville.
We do not, however, share the city's view that KRS 61.878(1) therefore relieves it of its duties under the Open Records Act relative to any request for public records relating to the litigation which he submitted. In a recent open records decision, the Attorney General construed the language which appears at KRS 61.878(1) in the context of a public agency's denial of an open records request submitted by a party to litigation with the agency. There we held that although "the Attorney General has discouraged the use of the Open Records Act as a substitute for discovery, we are bound to follow the line of opinions issued by this office from 1982 to the present holding that the presence of litigation between the requester [or, in this case, an individual acting on the litigant's behalf] and the public agency does not suspend the agency's duties under the Act." 98-ORD-39, p. 2 (attached hereto and incorporated by reference); see also 98-ORD-87; 99-ORD-64; compare 98-ORD-15 (records requested by a party litigant which pertain to pending litigation, and fall within the attorney-client privilege, may be withheld under KRS 61.878(1) because they are protected from pretrial discovery by the Rules of Civil Procedure) . As this line of authorities demonstrates, the cautionary language in OAG 89-65, upon which the city relies, has never been construed to relieve the agency of its duties under the Open Records Act relative to disclosure of nonexempt public records. At most, the Attorney General has recognized that the Act is a poor substitute for discovery, and that the courts may well frown on its use in lieu of discovery.
In sum, KRS 61.878(1) does not establish a blanket prohibition on "a party in litigation from using the open records act instead of the discovery rules to obtain records relating to the litigation." The statute does not prohibit access by a party litigant to nonprivileged, nonexempt public records in the custody of a public agency against which the litigant has brought suit or by which he has been sued. 95-ORD-18; 96-ORD-138; 98-ORD-39; 98-ORD-87; 99-ORD-64. Only if the records to which the party litigant requests access are both exempt and nondiscoverable does KRS 61.878(1) authorize disclosure.
The City of Louisville relies on KRS 61.878(1)(l) and the attorney-client privilege and work product doctrine. KRE 503(b) codifies the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communications made for the purpose of facilitating the rendition of professional legal services to the client[.]
In analyzing the privilege, the Attorney General has observed:
The privilege . . . consists of three elements: The relationship of attorney and client, communication by 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. R. Lawson, Kentucky Evidence Law Handbook , § 5.10 at 232 (1993), citing United States Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). Its purpose is to insure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. Of course, 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.
94-ORD-88, p. 4. Continuing, we noted that "an agency can be a 'client' and agency lawyers can function as 'attorneys' within the relationship contemplated by the privilege." Id.
In responding to Mr. Cullinan's request, the city has done little more than cite the arguably relevant exception. The city has offered virtually no proof that all of the responsive records 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 is 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 theory of an attorney or other representative" of the city concerning the federal litigation, thus qualifying for exclusion as attorney work product. In general, the city "paints with broad brush strokes and entirely omits the details." 98-ORD-124, p. 8. 1
It is the opinion of this office that the City of Louisville improperly adopted a policy of blanket exclusion relative to the records identified in Mr. Cullinan's request. In construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . We cannot agree [that a] . . . limited and perfunctory response to . . . [a] request even remotely complie[s] with the requirements of the Act--much less that it amount[s] to substantial compliance.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). Amplifying on this view, the Attorney General has stated:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6. In the cited decision, this office suggested, by way of example, that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal,' and deny access on the basis of KRS 61.878(1)(l) and KRE 503 as privileged lawyer client communication which was not disclosed to third persons." 97-ORD-41, footnote 2, p. 7.
In 95-ORD-61, the Attorney General further opined:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on unreasonably burdensome requests,] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
We find that the City of Louisville did not meet its statutory burden of proof in sustaining its denial of Mr. Cullinan's request on the basis of KRS 61.878()1)(i), (j), or (l). In our view, the city did not adequately explain how the cited exceptions apply to the records withheld. "A generic determination that entire categories of records are excluded from the mandatory disclosure provisions of the Open Records Act does not satisfy the requirements of the Act." 97-ORD-41, p. 4. This is not to say that the city's reliance on the cited exceptions was entirely misplaced, only that it failed to provide sufficiently detailed information in response to Mr. Cullinan's request. We therefore conclude that although the city may properly withhold those records which are privileged, or which fall squarely within the parameters of KRS 61.878(1)(i) and (j), it is obligated to disclose any nonexempt records which are responsive to Mr. Cullinan's request, and to clearly articulate the reasons for withholding the remaining responsive records.
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
1 The city does offer an explanation for its refusal to disclose records revealing the original or any revised amount of the city's reserves set aside in its insurance and risk management fund relative to the federal action. Ms. Harris notes that such information would be useful in the litigant's development of a settlement strategy. Although it seems likely that records reflecting these amounts qualify for exclusion, the city does not offer sufficient evidence to support its claim of privilege.