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 response of the Department of Military Affairs to the request of Gerald Victor Howard for records regarding his "military and civil service termination as a LTC in the Army National and a GM 13 in the Civil Service" violated the Open Records Act. For the reasons that follow, we conclude that the Department's response affirmatively advising Mr. Howard that it had no records responsive to his request was proper and did not violate the Act. However, we find that the Department did not meet its statutory burden in sustaining its blanket denial of access to certain documents on the basis that they were exempt from disclosure under KRS 61.878(1)(l) incorporating the attorney client privilege and work product doctrine into the Open Records Act.
By letter dated October 9, 2004, Mr. Howard submitted an open records request to the Kentucky National Guard, requesting:
Under the Kentucky Open Records statute, I hereby request the Commonwealth of Kentucky, Department of Military Affairs, Office of the Adjutant General, provide the undersigned a copy or copies of all written communications, notes, memoranda, letters and all supporting documentation pertaining to military and civil service personnel decisions, official actions, or other decisions, governmental or otherwise, made by MG Groves (deceased), MG (ret.) Youngman or MG Storm, TAG, regarding the undersigned's military and civil service termination as a LTC in the Army National Guard and a GM 13 in the Civil Service. "
In his letter of appeal to this office, dated November 16, 2004, Mr. Howard advised that as of that date he had not received a response to this request.
After receipt of notification of the appeal and a copy of the letter of appeal, Dylan F. Seitz, Major, Judge Advocate General's Corp, Kentucky National Guard, provided this office with a response, on behalf of the Department, to the issues raised in the appeal. In his response, Major Seitz, advised in relevant part:
No such records as described by the above exist. Mr. Howard's military and civil service with the Kentucky National Guard was terminated in 1992 under MG Robert L. Dezarn, who served as Adjutant General of the Kentucky National Guard from 10 December 1991 to 12 Dec 1995. The decision regarding Mr. Gerald Howard's military and civil service was finalized under MG (ret.) Dezarn's tenure.
It should be noted that Mr. Howard and others similarly situated have threatened to take legal action in an attempt to enforce a recommendation made by the Army Board for the Correction of Military Records (ABCMR). MG (ret.) Youngman issued a memorandum addressing the propriety of the ABCMR's recommendation and mailed a copy of the memorandum (under a cover letter dated 10 February) to the ABCMR and to all applicants who were the subject of the recommendation (to include Mr. Howard). A copy of this memorandum and cover letter is attached.
All other documents (as described above) concerning the actions and recommendations of the ABCMR are in the form of preliminary notes, drafts, recommendations and/or memoranda that were produced in anticipation of litigation and are protected from release under KRS 61.878 and the attorney-client privilege.
We are asked to determine whether the Department's response to Mr. Howard's request violated the Open Records Act. For the reasons that follow, we conclude that the Department's response was consistent in part and inconsistent in part with the requirements of the Act.
We find that the Department's response affirmatively advising Mr. Howard that it had no records responsive to his request for copies of all records pertaining to "military and civil service personnel decisions, official actions, or other decisions, governmental or otherwise, made by MG Groves (deceased), MG (ret.) Youngman or MG Storm, TAG, regarding the undersigned's military and civil service termination as a LTC in the Army National Guard and a GM 13 in the Civil Service" was proper and did not violate the Act. Mr. Howard's request covered the tenures of Adjutant Generals serving after that of MG Dezarn and after Mr. Howard's termination in 1992. In its response to this office, the Department explained that Mr. Howard's military and civil service with the Kentucky National Guard was terminated in 1992 during the tenure of MG Robert L. Dezarn, who served as Adjutant General of the Kentucky National Guard from 1991 to 1995, and, thus, no records as described by Mr. Howard existed. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Department discharged its duty under the Open Records Act by affirmatively so advising and explaining why the requested record did not exist. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
However, in his response to this office, Major Seitz explained that the Department did have records related to Mr. Howard and others who threatened to take legal action to attempt to enforce a recommendation made by the Army Board for the Correction of Military Records (ABCMB). Major Seitz further explained that MG Youngman issued a memorandum addressing the propriety of the ABCMR's recommendation and mailed a copy of the memorandum along with a cover letter to Mr. Howard explaining his memorandum. In his response, Major Seitz stated that all other records the Department had concerning the actions and recommendations of the ABCMR were in the "form of preliminary notes, drafts, recommendations and/or memoranda that were produced in anticipation of litigation and are protected from release under KRS 61.878 and the attorney-client privilege." As to these records, we find that the Department did not meet its statutory burden in sustaining its blanket denial of access to all documents relating to Mr. Howard on the basis that they were exempt from disclosure under KRS 61.878(1)(l) incorporating the attorney client privilege and work product doctrine into 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.
Moreover, in that decision we held that KRS 61.878(3) applied to former public agency employees, in stating:
It is simply inconceivable that the legislature intended to endow applicants for public employment with a broader right of access to records relating to them than former public employees. Former employees clearly have a greater investment in public service, both professionally and legally, and a corresponding need to preserve their legal rights and professional reputations by insuring the accuracy of records relating to them. Former public employees, whether they voluntarily left public employment to pursue other careers, were forcibly separated from public employment, or, after years of service, retired from public employment, are entitled to know at least as much about records relating to them in their former public employer's possession as applicants for public employment. Any other reading of KRS 61.878(3) is inconsistent with the tenor of that provision as well as the expressed legislative intent and policy of the Act as a whole.
Id.
Thus, Mr. Howard would be entitled to access to Department records relating to him, including preliminary documents, unless they are exempted from disclosure under either KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, or 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. The Department has denied access to records relating to the ABCMR's recommendation, which relate to Mr. Howard and others on the basis that they were produced in anticipation of litigation and are exempt under the attorney-client privilege, incorporated into the Open Records Act by KRS 61.878(1)(l).
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. 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 an attempt to provide additional guidance to public agencies relative to a determination of what may properly be withheld under KRS 61.878(1)(l) and the attorney-client privilege found at KRE 503, this office has observed:
We believe the distinction between confidential and nonconfidential matters drawn in In the Matter of Witnesses before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir. 1984) is instructive. Although the court recognized that information regarding fees is not generally protected by the attorney-client privilege, it also recognized that such records might contain information protected by the privilege. The court noted that billing sheets or time tickets "which indicate the nature of documents prepared, issues researched or matters discussed could reveal the substance of confidential discussions between attorney and client." Id. at p. 495. We believe that [an agency] need only permit inspection of records which describe, in general terms, the nature of the services rendered as, for example, "research," "witness interviews," "discussion with client." It may, of course, exercise its discretion in redacting any portion of its records which disclose substantive matters and litigation strategy. This resolution of the issue of the applicability of the attorney-client privilege to the requested records subserves both the agency's interest in protecting privileged information and the public's interest in monitoring the city's activities to insure that it is properly executing its statutory function and pursuing the public good. Kentucky Board of Examiners of Psychologists v. The Courier Journal and Louisville Times Co., Ky. 826 S.W.2d 324, 327 (1992).
OAG 92-92, p. 6.
In responding to Mr. Howard's request, the Department has done little more than invoke the privilege. The Department 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. Nor has the Department offered specific proof that they consist of "the mental impressions, conclusions, opinions, or legal theory of an attorney or other representative" of the Department concerning the anticipated litigation, thus qualifying for exclusion as attorney work product. In general, the Department "paints with broad brush strokes and entirely omits the details." 98-ORD-124, p. 8.
In a 97-ORD-41, the Attorney General held that the City of Louisville improperly adopted a policy of blanket exclusion relative to the records identified in a request. It is instructive to quote from that decision:
In construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals has observed:
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). Amplifying on this view, the Attorney General has stated:
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:
00-ORD-10, p. 12.
In the instant appeal, we find that the Department did not meet its statutory burden of proof in sustaining its denial of Mr. Howard's request on the basis of the attorney-client privilege and work product doctrine. See also 98-ORD-124. The Department did not identify the documents, or groups of documents, withheld, or adequately explain how the privileges apply to those records. By the same token, we conclude that the Department's reliance on the privilege may not have been entirely misplaced, only that it failed to provide sufficiently detailed information in response to Mr. Howard's request. We therefore find that although the Department may properly withhold those records which are privileged, it must identify the records or groups of records withheld and articulate the reasons for withholding those records in terms of the requirements of the privilege. Accordingly, unless the Department can substantiate that all the records withheld are exempt under the attorney-client privilege, it must make those records that are not protected by the privilege, or other applicable exemption in KRS 61.878(1), available to Mr. Howard for his inspection.
Finally, in his letter of appeal, dated November 26, 2004, Mr. Howard indicated he had mailed his request to the Department on October 14, 2004 and, as of the date of his letter of appeal had not received a response. The failure to respond to Mr. Howard's request within three business days of its receipt constituted a procedural violation of the Open Records Act. KRS 61.880(1).
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.
Gerald Victor Howard36 Timberlawn CircleFrankfort, KY 40601
Major General Donald C. StormAdjutant GeneralKentucky National Guard100 Minuteman ParkwayBoone National Guard CenterFrankfort, KY 40601
Major Dylan SeitzKentucky National Guard100 Minuteman ParkwayBoone National Guard CenterFrankfort, KY 40601