Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the City of Villa Hills relative to the February 16, 2004 and March 4, 2004 open records requests of Art E. Schutte violated the Open Records Act. We find that the City's actions did not violate the Act.
By letter dated February 16, 2004, Mr. Schutte requested copies of the following City records:
1. All contracts/agreements with Schutzman Inspection Services, LLC from January 1, 2001 to the present.
2. All records of time worked submitted by Schutzman Inspection Services for services rendered from January 1, 2001 to the present.
Sue Kramer, City Clerk, responded to Mr. Schutte's request on behalf of the City, advising him:
1. All contracts/agreements with Schutzman Inspection Services, LLC from January 1, 2001 to the present will be copied.
2. The records requested for Schutzman Inspection Services for services rendered from January 1, 2001 to the present have already been copied for your (sic) in response to your January 30, 2004 Kentucky Open Records Request.
The cost for the copies is $ .10 per copy, and shall be paid prior to the receipt of these records. The copies are ready for you to pick up at the City Building as you had requested.
By letter dated March 4, 2004, Mr. Schutte requested the City to provide him copies of:
1. All contracts/agreements with Schutzman Inspection Services, LLC from January 1, 2001 to the present prepared by city attorney, Mike Duncan, as so indicated in the billings to the City in April 2002 by the firm of Ziegler and Schneider.
2. All monthly reports from Schutzman Inspection Services submitted to the Mayor and Council detailing activities as so stated in the Agreement you provided to me on February 24, 2004. This request is for the period beginning April, 2002 through December 31, 2003.
Also, in the near future, I would like to inspect the records maintained by the Company (Schutzman Inspection Services) since "all records maintained by the Company are the sole property of the City of Villa Hills.
In response to this request, Ms. Kramer advised:
1. The contract/agreement with Schutzman Inspection Services, LLC, referenced in your numerical paragraph one of your March 4, 2004 Open Records Request was not executed and therefore is exempt from inspection pursuant to KRS 6[1].878(1)(i) and KRS 6[1].878(1)(j).
2 Your request for all monthly reports from Schutzman Inspection Services submitted to the Mayor and Council referenced in your numerical paragraph two of your March 4, 2004 Open Records Request is denied. These reports were included with the City Council Meeting Minutes which were provided to you pursuant to a previous request. This request is denied pursuant to KRS 6(1).872(6) since it places an unreasonable burden that repeated requests are intended to disrupt other functions of the City.
You have had an opportunity to inspect all records of the City pertaining to Schutzman Inspection Services.
In his letter of appeal to this office, Mr. Schutte, in reference to the City's response to the February 16, 2004 request, complains he did not receive "any records as to the time worked." In reference to the City's response to his March 4, 2004 request, he complains that the City improperly denied his request for a copy of the unexecuted copy of the contract, since the City "was billed by the City Attorney and in turn, paid by the City, as a taxpayer, I should have access to these records, which are public." In addition, Mr. Schutte argues that the individuals involved are public officials, the Mayor and a police officer (Schutzman) and not private individuals.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Duncan provided this office with a response to the issues raised in the appeal. Elaborating on the City's original response, Mr. Duncan explained:
The City has maintained the position that the Open Records Act only requires a public agency to produce records that are not otherwise exempt, but does not require a public agency to provide information. See, 98-ORD-141; 98-ORD-41. The City has provided Mr. Schutte with all records that are responsive to his request for "records of time worked submitted by Schutzman Inspection Services, LLC for services rendered from January 1, 2001 to the present." (Schutte Exhibit E) The City does not have any other records responsive to that request other than those records previously provided to Mr. Schutte. Schutzman Inspection Services, LLC does not submit time worked, as it is compensated on a flat monthly fee for services rendered. It submits a monthly invoice for the services rendered and the City pays the invoice. Mr. Schutte has been provided with these records.
Regarding the City of Villa Hills' denial of request number one of Mr. Schutte's March 4, 2004 Open Records request, as indicated in the City's denial of this request, the request was denied because the record requested was excluded from the application of the Open Records Act under KRS 61.878(1)(i) and KRS 61.878(1)(j). The City has denied Mr. Schutte the draft of the contract prepared by the City Attorney, because it has not been executed and is a preliminary draft and recommendation. It is not final and does not memorialize the parties' agreement. It could be unceremoniously thrown in the waste basket. See, 97-ORD-191. Additionally, no executed contract has yet been reduced to writing, and the City is not required to produce a record that does not exist. See, 98-ORD-141; 95-ORD-82. In the event the Contract/Agreement is reduced to writing, the City is willing to provide Mr. Schutte with a copy of the same.
The City has provided Mr. Schutte with Schutzman Inspection Services, LLC's proposal and records reflecting the payment history, which in part reflect the contractual arrangement between the parties. Mr. Schutte's assertions that Schutzman Inspection Services, LLC is a public employee/officer is misplaced, albeit irrelevant. Although it is true that Mr. Schutzman is a police officer employed by the City of Villa Hills, as a police officer he does not serve as a building inspector/ zoning administrator for the City. Mr. Schutzman is a member of a limited liability company, Schutzman Inspection Services, LLC that operates a Home and Building Inspection company. It is within this capacity that he serves as the Building Inspector. Mr. Schutte has been provided with the opportunity to inspect records from Schutzman Inspection Services, LLC that pertain to the home and building inspection services rendered to the City of Villa Hills.
Moreover, Mr. Schutte's assertions that he has a right to inspect the contract because the City attorney billed the City for his legal work, and thus, is a public record because city taxpayer money was used to pay the attorney bill is seriously misplaced. There are many documents that a City attorney may prepare for the City that are not public records and are excluded from the application of the Open Records Act under KRS 61.878(1)(l) and other applicable laws, rules and regulations. It is absurd to think that by virtue of the City paying the City Attorney for the services rendered with taxpayer money that the attorney prepared documents are therefore public records within the meaning of the Open Records Act. Besides this thought process being illogical, it flies in the face of the ethical canons for which an attorney is bound, including the doctrines of attorney client privilege and attorney work product.
We are asked to determine whether the actions of the City relative to the open records requests of Mr. Schutte violated the Open Records Act. For the reasons that follow, we affirm the City's actions and find no violation of the Act.
We address first the issues raised in the City's response to Mr. Schutte's February 16, 2004 request. As to the request for copies of City contracts/agreements with Schultzman Inspection Services, LLC, Ms. Kramer advised Mr. Schutte that all contracts/agreements would be copied. In his response to this office, Mr. Duncan explained that the City had provided Mr. Schutte with Schultzman Inspection Services' proposal and records reflecting payment history, which in part reflected the contractual arrangement between the parties. He further explained that no executed contract between the parties had been reduced to writing. Responding to Mr. Schutte's request for "records" of time worked by Schultzman Inspection Services for services rendered, " Ms. Kramer advised that records of services rendered by the company had already been copied for him in response to his January 30, 2004 open records request.
We find this response did not violate the Open Records Act. The City provided Mr. Schutte with copies of records it maintained that were responsive to his request for records reflecting the contractual arrangement between the parties. The City affirmatively advised him that it had no executed contract. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
We also find that the City's response to Mr. Schutte's request for records of times worked by Schultzman Inspection Services did not violate the Act. In the City's February response to Mr. Schutte, Ms. Kramer advised him that time records for services rendered by Schultzman Inspection Services had already been provided to him in response to his January 30, 2004 request. With respect to duplicative requests, this office has stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. Unless Mr. Schutte can explain the necessity of reproducing the same records which have already been provided to him, we find the City's response was proper and did not constitute a violation of the Act. 04-ORD-018.
We next address the issues raised in the City's response to Mr. Schutte's March 4, 2004 request. In response to his request for copies of all City contracts/agreements with Schultzman Inspection Services prepared by City Attorney Michael Duncan, Ms. Kramer advised that the contract prepared by Mr. Duncan had not been executed and thus was exempt from disclosure pursuant to KRS 61.878(1)(i) and (j). In his response, Mr. Duncan also advised that the draft of the response had not been executed and, as such, was a preliminary draft and recommendation and did not memorialize an executed agreement between the parties.
This office has consistently held that preliminary interoffice and intraoffice memoranda setting forth opinions, observations, and recommendations which are not adopted as part of final agency action may properly be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). These exemptions are intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. They are premised on the notion that:
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)(g) [now (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. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.
02-ORD-099, at p. 4. Only if these predecisional documents are adopted as part of any final action of the public agency do they forfeit their preliminary characterization. Accordingly, we conclude the City could properly withhold disclosure of the unexecuted contract as a preliminary document not adopted as final agency action, under authority of KRS 61.878(1)(i) and (j). Once the contract is signed and executed by the parties, it would be subject to disclosure.
Addressing Mr. Schutte's repeated request for all monthly reports from Schultzman Inspection Services, the City advised that these records had previously been provided to him. As noted above, an agency is not required to satisfy an identical and duplicative request a second time. 95-ORD-47.
In his letter of appeal, Mr. Schutte further argues that records or correspondence between the parties cannot be considered correspondence with a private individual because it is between the Mayor of Villa Hills and Mr. Schutzman, a police officer employed by the City. As Mr. Duncan explained in his response to this office, Mr. Schutzman is a member of a limited liability company, Schutzman Inspection Services, LLC that operates a Home and Building Inspection company. It is in this capacity that he serves as a Building Inspector and not in his capacity as a police officer employed by the City. Mr. Duncan further advised that Mr. Schutte had been provided with the opportunity to inspect records from Shutzman Inspection Services, LLC that pertain to home and building services rendered to the City. Under these facts, we find no violation of the Open Records Act.
Finally, Mr. Schutte argues that he is entitled to inspect all records created for the City by the City Attorney because he is paid for this work with public funds. This argument is without merit. Although the records may be public records, some may be exempt from public inspection under one of the exceptions set forth in KRS 61.878(1). For example, KRS 61.878(1)(l), incorporates the attorney-client and work product privileges into the Open Records Act.
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[.]
With respect to 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. Thus, "an agency can be a 'client' and agency lawyers can function as 'attorneys' within the relationship contemplated by the privilege." Id. Accordingly, the City can withhold disclosure of public records prepared by its attorney, notwithstanding he is paid for his work with public funds, if the work is exempt from disclosure under one of the exceptions set forth in KRS 61.878(1). Moreover, as noted above, a public record may properly be withheld from disclosure as a preliminary document not adopted as final agency action.
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 proceedings.
Art E. Schutte835 Keeneland Greens DriveUnion, KY 41091
Sue Kramer, City Clerk719 Rogers RoadVilla Hills, KY 41017
Michael A. DuncanCity Attorney 541 Buttermilk PikeP.O. Box 175710Covington, KY 41017-5710