Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of Garrard County Memorial Hospital, Inc. relative to David Wilson's request for "copies of certain records: the listing of all fees paid, within the last 12 months, to any law firms or professional service corporations including but not limited to McBrayer, McGinnis, Leslie and Kirkland, PLLC and Gess, Mattingly and Atchison," violated the Kentucky Open Records Act. Based on the following, we conclude that GCMH violated KRS 61.880(1) in refusing to accept service of Mr. Wilson's request. Having failed to articulate a statutory basis for its denial, GCMH must provide Mr. Wilson with copies of the requested records, which are clearly subject to inspection, in accordance with KRS 61.872(3)(b).
By letter dated May 3, 200[4], Mr. Wilson directed his request for copies of the specified records to "Garrard County Memorial Hospital[,]Inc. Custodian of Records" at "308 West Maple Avenue Lancaster, KY 40444," via certified mail. If the requested "listing" does not exist "as a separate document or part of a document" and GCMH does "not wish to compile it, then copies of the statement of account from each law firm or professional service corporation for each of the last 12 months beginning with April of 2003 will be acceptable" to Mr. Wilson.
In a letter received by this office on May 12, 2004, Mr. Wilson appeals from the "defacto refusal of [GCMH] to provide [him] with copies [of] or allow [him] to inspect certain records." According to Mr. Wilson, his certified letter "was refused on 5-8-2004[,]" and "[i]t should be noted that [his] previous open records request was accepted at this same address on 4-21-2004: see log # 200400120." 1 Attached to Mr. Wilson's letter of appeal was the unopened envelope containing his original request, the delivery of which was "refused" as twice indicated on the front of the envelope, as well as the unsigned certified mail receipt. 2 On May 12, 2004, this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Joe Miller and William A. Bausch, of Gess, Mattingly & Atchison, legal counsel for GCMH, and Jeff Moss, the Garrard County Attorney, advising those parties they could respond to Mr. Wilson's appeal pursuant to 40 KAR 1:030 Section 2, on or before May 18, 2004. As of this date, we have not received any response on behalf of GCMH nor have we been advised that GCMH has taken any subsequent action in this matter.
Here, as in 04-ORD-80, Mr. Wilson's appeal is premised on the assumption that GCMH is a "public agency. " Having previously acknowledged this status, GCMH is subject to the procedural requirements of the Open Records Act codified at KRS 61.880(1), which provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making this request, within the three (3) day period, 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
As evidenced by the foregoing, GCMH had two opportunities to comply with this mandatory provision, first, upon receiving Mr. Wilson's original request, and second, upon receiving the notification of his appeal from this office. It is undisputed that GCMH did not respond to Mr. Wilson's request, and its failure to respond in writing, and within three business days, constitutes a violation of KRS 61.880(1). In short, GCMH "cannot avoid its statutory duties under the [Open Records Act] by refusing to accept service of a request[.]" 00-ORD-93, p. 4. As repeatedly recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
Because GCMH did not respond to Mr. Wilson's request or the notification of appeal from this office, it necessarily failed to provide a legal basis for its apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency, . . . ." In sum, the failure of GCMH to respond to the open records request is "tantamount to a denial of that request" without support in the form of "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" as required by KRS 61.880(1). 02-ORD-116, p. 2; See 01-ORD-15. "The fact that a similar but not identical request, 3 was the subject of an earlier open records decision of this office does not relieve [GCMH] of its statutory duty under KRS 61.880(1), or shift the burden of proof to the complaining party [Mr. Wilson] under KRS 61.880(2)(c)." 02-ORD-116, p. 2.
Even if GCMH was not required to disclose the requested records on this basis, however, Mr. Wilson would prevail on the merits. In addressing the accessibility of records like those at issue, the Attorney General has long recognized the public's right to inspect records documenting disbursements made by an agency to attorneys hired to represent the agency in litigation. 00-ORD-104, p. 7; 95-ORD-18; OAG 92-92; OAG 92-14; OAG 85-91; OAG 82-169. Although the attorney-client privilege, codified at KRE 503, is incorporated in the Open Records Act by virtue of KRS 61.878(1)(l), "the privilege does not extend to contracts and billing records of attorneys working for a public agency. " 97-ORD-66, p. 10. 95-ORD-18; OAG 92-92; OAG 92-14; OAG 85-91; OAG 82-169. Elaborating upon this principle, we have observed:
There can be little doubt that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of [e]nsuring agency accountability. We recognized this principle in OAG 82-169 and OAG 85-91, where we expressly held that the records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys, should be made available for inspection at the conclusion of pending litigation. We believe that that opinion coupled with the authorities cited above, mandate release of the monthly statements prepared by the city's attorneys which reflect the general nature of the legal services rendered. Should those invoices disclose substantive matters protected by the attorney-client privilege, and exempt under KRS [61.878(1)(l),] the exempt material should be separated from the non-exempt materials, and the non-exempt materials [should be] released for public inspection.
In OAG 92-92, we elaborated on OAG 92-14, reaffirming our opinion that information about attorney fees is privileged only if its disclosure would reveal confidential communications between the attorney and client, and announcing that the existence of pending litigation does not preclude release of the records by a public agency unless the agency is a law enforcement agency or an agency involved in administrative adjudication, and premature disclosure of the information would harm the agency. KRS 61.878(1)(h).
00-ORD-104, p. 8, citing 95-ORD-81, p. 3.
In light of these authorities, the public's right to access records reflecting public funds expended for the rendition of legal services is beyond dispute, and this reasoning is equally applicable to records of the type described that are generated by "professional service corporations." Accordingly, GCMH must disclose any existing records in its custody that are responsive to Mr. Wilson's request. If his "residence or principal place of business is outside the county in which the public records are located[,]" GCMH "shall mail [copies of the responsive records] upon receipt of all fees and the cost of mailing" to Mr. Wilson as mandated by KRS 61.872(3)(b).
A party aggrieved by this decision may appeal it by initiating an 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.
David Wilson402 Danville StreetLancaster, KY 40444
Joe MillerGess, Mattingly & Atchison, P.S.C.201 W. Short StreetLexington, KY 40507-1269
William A. BauschGess, Mattingly & Atchison, P.S.C.201 W. Short StreetLexington, KY 40507-1269
Jeff MossGarrard County Attorney102 Stanford Street, Suite OneLancaster, KY 40444
Footnotes
Footnotes
1 At issue in 04-ORD-080, the referenced appeal involving these two parties, was whether GCMH violated the Open Records Act in its disposition of Mr. Wilson's request for "copies of certain records[,]" namely, "a listing of all outstanding debts accumulated by [GCMH] since its inception in September of 2001, including the name and address of each creditor." Id., p. 1. Because Mr. Bausch conceded that GCMH qualifies as a "public agency" under one or more of the definitions codified at KRS 61.870(1), albeit implicitly, or waived any challenge to that characterization at a minimum, we concluded that GCMH committed a procedural violation of the Open Records Act in failing to comply with the requirements of KRS 61.880(1) and decisions from this office interpreting that mandatory provision, "as to any existing records in its custody that [were] responsive to Mr. Wilson's request." With respect to those records that do not currently exist, however, GCMH "fulfilled its obligation under the Act by affirmatively indicating as much to Mr. Wilson, and exceeded its statutory duty in agreeing to compile information and generate documents to satisfy Mr. Wilson's request."
As correctly observed by Mr. Wilson, someone acting on behalf of GCMH accepted delivery of his request that was directed to the identical address at which his second request was refused, on April 21, 2004, as reflected on the certified mail receipt attached to his letter of appeal.
2 As evidenced by the postage label, Mr. Wilson mailed his request on May 4, 2004. Although not specifically identified as such, May 8, 2004, is presumably the date on which delivery of his request was attempted since that date, as well as unidentified initials, apparently those of the postal employee who attempted to deliver the request, appear below the address on the front of the envelope.
3 See 04-ORD-80.