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 Lexington Fayette Urban County Government violated the Kentucky Open Records Act in denying the request of Benjamin P. Hicks for a copy of any "written communication from Mr. Cegelka" to Andrea Weddle, Attorney Senior, "in regards to the fence" that is the subject of the underlying dispute. Although the LFUCG is authorized to withhold those records that constitute privileged attorney-client communications, the LFUCG has failed to identify the specific records being withheld and articulate the basis for denial in terms of the privilege codified at KRE 503(b), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), as required to satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c). Until the LFUCG identifies and generally describes any responsive records being withheld on this basis in terms of the privilege, as required by the courts and prior decisions of this office, the LFUCG has not complied with the Open Records Act.
By letter dated November 17, 2006, Keith Horn, Attorney Senior (to whom Mr. Hicks' letter addressed to Ms. Weddle on November 10, 2005, was forwarded), advised Mr. Hicks that his request was denied because the records are "protected by the attorney/client privilege" and therefore are "exempt from inspection." In support of his position, Mr. Horn cited KRS 61.878(1)(l), KRE 503, KRS 422A.0503, and SCR 3.130(1.6) without elaborating. In a letter received by this office on May 18, 2006, Mr. Hicks initiated this appeal from the denial of his request. According to Mr. Hicks:
The background of this request is that Mr. Bill Cegelka was and is the Council representative for the neighborhood that had recently been developed and the developer was required to construct an "agricultural fence" between the development and my client's land, i.e. the Tucker property. I am also enclosing a copy of a letter dated October 21, 2005, from Ms. Weddle to the attorney for the developer. As you can see, it is obvious that the City was absolutely requiring Commonwealth Development to begin building this fence. However, to this day, that fence has not been constructed.
In Mr. Hicks' view, it "is in the public's best interest to know why the City has decided that a developer does not have to comply with the building and zoning regulations applicable" to the rest of the public.
Upon receiving notification of Mr. Hicks' appeal from this office, Mr. Horn responded on behalf of the LFUCG. Quoting the language of KRS 61.878(1)(l), Mr. Horn reiterates that documents responsive to Mr. Hick's request, "as explained in the letter denying his request, is a communication between a client and his attorney and is, therefore, exempt from public inspection pursuant to the attorney-client privilege (KRS 422A.0503, renumbered as KRE 503, and SCR 3.130(1.6))." As correctly noted by Mr. Horn, these rules "are promulgated under Kentucky Constitution § 116 and KRS 447.154" and "the attorney-client privilege is incorporated into the Open Records Act by operation of KRS 61.878(1)(l)." In his view, "Mr. Hicks' request was appropriately denied." Because the LFUCG has not satisfied the burden of proof imposed upon public agencies by KRS 61.880(2)(c), this office respectfully disagrees.
In 97-ORD-127, this office was asked to determine whether the Natural Resources and Environmental Protection Cabinet properly denied a request for a copy of an opinion prepared by the Cabinet's Office of Legal Services on the basis of KRE 503, incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). Of particular significance here, the Attorney General observed:
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 otherwise public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege:
Thus, the privilege consists of three elements: The relationship of attorney and client, communication by or to 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. Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3rd ed. 1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2nd Cir. 1989). Its purpose is to [e]nsure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. The term "client" is defined to include "a person, including a public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer. . . ." KRS 503(a)(1). The privilege extends to communications from attorney to client "if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence." Kentucky Evidence Law Handbook at § 5.10 citing United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objective." Kentucky Law Evidence Law Handbook § 5.10.
Id., p. 1.
In holding that the Cabinet had properly withheld the legal opinion at issue, this office emphasized that a public agency can be a "client" and agency lawyers can function as "attorneys" within the relationship contemplated by the privilege with the corollary being that a memorandum containing legal analysis and advice authored by agency counsel in response to a request for a legal opinion qualified for exclusion under KRE 503. Id., p. 2. That result hinged upon the fact that the agency had "dealt with its attorneys as would any private party seeking counsel to protect its interests," thereby necessitating the "same assurances of confidentiality. " Id. See also 04-ORD-149; 03-ORD-243; 02-ORD-42. Expressly rejecting the appellant's argument that the record in dispute forfeited its exempt status if and when it was incorporated into the agency's final decision on the matter, the Attorney General reasoned:
This office has previously recognized that although a number of exceptions to the Open Records Act are forfeited "upon the occurrence of a specific event, this has never been the rule with respect to attorney work product [and documents shielded by the attorney-client privilege]." OAG 91-214. It is our opinion that reliance on legal advice is not synonymous with "incorporation" as that term is defined in the long line of cases interpreting KRS 61.878(1)(j) . Simply stated, reliance on legal advice does not negate the attorney-client privilege.
97-ORD-127, p. 2.
More recently, the Kentucky Court of Appeals recognized that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] by the Kentucky General Assembly."
Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771, 774 (2001). In upholding the University's reliance upon the privilege, the Court concluded:
Article V of the Kentucky Rules of Evidence (KRE) describes the nature and application of various privileges for confidential communications. The attorney-client privilege, the oldest of the privileges known at the common law, is governed by the provisions of KRS 503. It recognizes that sound legal advice and advocacy serve vital public purposes and that such advice and advocacy depend upon a guarantee of confidentiality between attorney and client. Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981).
KRE 503(b) provides that:
KRE 503(a)(5) states that a communication is deemed
The privilege attaches to confidential communications made for the purpose of facilitating the process of rendering professional legal services to a client; counsel must be acting in the course and scope of employment for the client, and the communication must pertain to the matter within the course and scope of that employment. KRE 503(a)(2); Underwood and Weissenberger, Kentucky Evidence 2001 Courtroom Manual, § 503 (2000).
The University's proof indicated that the contested communications were sent by University counsel to the Chairman and Business Manager of the Psychiatry Department where Hahn was employed. Both of these individuals qualify as "representative[s] of the client." KRE 503(a)(2)(B). Our review of the documents demonstrated that the communications were made for the purpose of providing legal services to the University.
Hahn at 775-776. Accordingly, the Court held that the communications in dispute were protected by the attorney-client privilege.
In responding to both Mr. Hicks' request and this appeal, the LFUCG has merely referenced the privilege without identifying the records to which the privilege purportedly applies or attempting to establish how the records satisfy the requirements of the privilege. 1 In short, the LFUCG has not offered any proof that all of the records withheld were generated during the course of the attorney-client relationship, represent a communication by or to the client relating to the subject matter on which professional advice was sought, and were maintained in a manner designed to ensure confidentiality, as required to successfully invoke the attorney-client privilege. 2 Simply put, the LFUCG "paints with broad brush strokes and entirely omits the details" in violation of the Open Records Act. 98-ORD-124, p. 8.
Based upon the foregoing, it is the decision of this office that the LFUCG erred in adopting a policy of blanket exclusion relative to the responsive "written communications" and any unidentified responsive records on the basis of the attorney-client privilege. In construing the mandatory language of 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 . . . . [W]e 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); 00-ORD-10, p. 10. Expanding upon this view, the Attorney General has consistently held:
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 [or privilege] and are therefore not excludable.
97-ORD-41, p. 6; 00-ORD-10, p. 10. In that decision, the Attorney General suggested 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." Id., p. 7; 00-ORD-10, p. 10. More generally, the Attorney General has said:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6) which requires clear and convincing evidence to support denials resulting from 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. . . .
00-ORD-10, pp. 10, 11, citing 95-ORD-61, p. 2.
To date, the LFUCG has provided only a "bare assertion" in support of its claim that unidentified responsive records constitute privileged attorney-client communications. "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. As in 00-ORD-10 and 00-ORD-111, the agency has not identified the records or groups of records withheld or adequately explained how the privilege applies to those records as required by KRS 61.880(1) and KRE 503. 3 See also 01-ORD-246. In so holding, this office is not implying that the LFUCG's reliance on the attorney-client privilege was misplaced, only that it failed to provide sufficiently detailed information to substantiate its position. Although the LFUCG is certainly permitted to withhold those records that qualify for exclusion as confidential communications between attorney and client, the LFUCG must identify the records being withheld and articulate its denial in terms of the privilege in order to satisfy its statutory burden of proof as to those 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 Absent further explanation, it is unclear which records are being withheld on this basis. Even if letters between Mr. Cegelka and Ms. Weddle, are the only category of records to which the privilege purportedly applies, a more detailed description is required to successfully invoke the privilege.
2 Likewise, the LFUCG has not established that the records withheld consist of "the mental impressions, conclusions, opinions, or legal theory of an attorney or other representative" of the LFUCG concerning related litigation as required to qualify for exclusion under the attorney work product doctrine. 98-ORD-124, p. 8.
3 In 00-ORD-111, the record reflected the existence of proposed and pending litigation related to the matter and the Attorney General only affirmed the agency's denial of access to records "directly relate[d] to the anticipated litigation involving [the client's injuries] and the termination of his workers' compensation benefits, and which satisf[ied] each of the requirements of KRE 503, or [could] be characterized as "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the [agency] concerning the anticipated litigation." Id., p. 1(original emphasis). All other records were subject to disclosure pursuant to KRS 61.878(3). Id.