Request By:
William S. DolanAnne E. Burnham
Assistant Counsel
Cabinet for Health & Family Services
Office of Legal Services
275 E. Main Street, 5W-B
Frankfort, KY 40621Carlton S. Shier
Team Leader
Office of Legal Services
Cabinet for Health and Family Services
275 E. Main Street, 5W-B
Frankfort, KY 40621
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in denying William S. Dolan's February 14, 2007, request for copies of the Root Cause Analysis, Vision Plan, and Clinical and Operational Assessment referenced in Secretary Mark Birdwhistell's May 22, 2006, Administrative Order to Commissioner John Burt regarding Oakwood Community Center. Mr. Dolan is a staff attorney supervisor at Protection and Advocacy and his request was submitted on behalf of the agency he serves, an agency "charged with providing legal representation to Kentuckians with disabilities." 1 For the reasons that follow, we find that because the Cabinet failed to meet its statutory burden of proof in denying Mr. Dolan's request, its denial constituted a violation of the Open Records Act.
On March 6, 2007, 2 the Cabinet denied Mr. Dolan's request. 3 Relying on KRS 61.878(1)(j), the Cabinet argued that the requested documents consisted of "preliminary recommendations or memoranda in which opinions are expressed or policies formulated or recommended. " Specifically, the Cabinet asserted, the documents "represent opinions and recommendations to the Secretary advising him on the possible courses of action to be taken with regard to Oakwood," and because "the Cabinet has not taken any final action adopting any of the opinions and recommendations contained in these records," they retain their preliminary characteristics.
On appeal, Mr. Dolan questions the Cabinet's assertion that no final action has been taken on Secretary Birdwhistell's order, the apparent purpose of which was to "bridge . . . a temporary, albeit significant impediment in Oakwood's drive for improvement." 4 It is his position that the Cabinet took final action, "bridg[ing] the temporary . . . impediment in Oakwood's drive for improvement," when it "contracted with the Bluegrass Regional Comprehensive Care Center to run all aspects of Oakwood . . . based [in] part on the three documents in question." The Cabinet disputes this position, in supplemental correspondence directed to this office, arguing that "[t]he decision to turn the operation of Oakwood over to Bluegrass was unrelated to the documents submitted by Commissioner Burt," none of which contained "any suggestion that the operation of the facility should be relinquished to a private company." Relying on 02-ORD-14, the Cabinet maintained that the requested records "are simply part of an 'investigational file' and . . . the information contained therein was 'not adopted as part of [the] dispositional orders," concluding that its denial of Mr. Dolan's request was therefore proper.'" 5
Unable to resolve the issues on appeal based on the record before us, on May 1, 2007, this office requested that the Cabinet respond to a series of questions and provide us with copies of the disputed records pursuant to KRS 61.880(2)(c). Among other questions, we asked that the Cabinet:
. describe, in at least general terms, the Vision Plan and the Clinical and Operational Assessment;
. indicate for what purpose and to what end Secretary Birdwhistell directed Commissioner Burt to generate the report and whether it has, or will be, put to this end;
. indicate on what basis the Cabinet decided to contract with Bluegrass Regional Comprehensive Care Center to run all aspects of Oakwood; and
. provide us with copies of the disputed records Mr. Dolan requested, as well as records documenting the final decision to contract with Bluegrass.
With reference to our final inquiry, we expressly acknowledged our obligation to maintain the confidentiality of these records per KRS 61.880(2)(c).
From the Cabinet's May 18 responses to our inquiries, we gleaned the following:
. The Vision Plan was generated by the staff at Oakwood in conjunction with the staff of the Department for Mental Health and Mental Retardation, is identified as a "draft," and contains recommendations and opinions on which no final action has been taken.
. The Clinical and Operational Assessment of Subdividing Oakwood into Multiple Licenses "is a preliminary report submitted to Secretary Birdwhistell expressing the opinions of the drafter(s) of said assessment upon which no final action has been taken," and "the full title of the report should speak for itself."
. Secretary Birdwhistell's Administrative Order "clearly delineates the reasons the documents requested therein were generated."
. Neither the Administrative Order, nor the documents produced as a result thereof, "contemplate the hiring of Bluegrass . . . or any other entity as the 'final action' on the issues addressed therein."
Unfortunately, the Cabinet's response sheds little additional light on the issues on appeal, and the records it produces for our in camera inspection largely muddy the already murky waters. It is for this reason that we cannot affirm the Cabinet's denial of Mr. Dolan's request.
To begin, we know little more about the general content of the two remaining documents in dispute than we did before we tendered our KRS 61.880(2) inquiries. We know who drafted the Vision Plan, but little about its content or intended use in general terms or otherwise. We know that, in the Cabinet's view, the Clinical and Operational Assessment is self-descriptive, but nothing about its drafters, its content, or its intended use. We have not been apprised of the purpose for which, and end to which, the Secretary directed the creation of the remaining disputed records, having instead been redirected to the terms of his order. Nor do we know whether the records have been, or will be, put to this purpose or end. We know even less about the basis for the Cabinet's decision to contract with Bluegrass, a response to that question having been entirely omitted.
As for the disputed records produced for in camera inspection, we received from the Cabinet a five page document entitled "Administrative Order Response from the Department for Mental Health and Mental Retardation Services," dated June 5, 2006, that includes an unsigned letter to an individual which appears to contain a final decision on the multiple licenses issue, and a multi-page document entitled "Administrative Order Response from the Department for Mental Health and Mental Retardation Services," dated July 5, 2006, portions of which are stamped "DRAFT," 6 containing, inter alia , what appears to be a powerpoint presentation directly related to Oakwood and a published article that does not directly relate to Oakwood. 7 Additionally, the records produced for in camera inspection contain some fifty-one pages of email relating to Oakwood which are by no means self-explanatory, twenty-five pages of federal regulations whose bearing on the issue of Oakwood and/or the decision to contract with Bluegrass are entirely unclear, eleven pages of flow charts, one letter, and one memorandum, all devoid of explanation. Although some of these records contain attorney-client confidentiality notices, and the Cabinet asserts the privilege generally in its May 18 response, no explanation accompanies this claim of exemption. Our review of these records, as well as the Cabinet's responses to our KRS 61.880(2)(c) questions, neither confirms nor refutes the Cabinet's position that it properly relied on KRS 61.878(1)(j), or any other exemption, in denying Mr. Dolan's request. Because the Cabinet is statutorily assigned the burden of proof in sustaining its actions, per KRS 61.880(2)(c), and the record on appeal contains insufficient proof to support its denial of Mr. Dolan's request, we find that that denial constituted a violation of the Open Records Act.
KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency , and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.) In construing this provision, the Attorney General has frequently observed:
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.
95-ORD-61, p. 5 (emphasis in original) cited in 96-ORD-206; 99-ORD-36; 04-ORD-031; 05-ORD-167. Moreover, the Kentucky Court of Appeals has declared:
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.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Although the Cabinet offers more than a "bare assertion relative to the basis for denial," it has repeatedly failed "to provide [the] particular and detailed information" contemplated by KRS 61.880(1). Indeed the Cabinet had not one, but three opportunities to comply with KRS 61.880(1): by responding to Mr. Dolan's original request with particular and detailed information, by amplifying on its position in response to this office's notification of receipt of Mr. Dolan's appeal, and by fully answering the questions tendered to it by this office under our KRS 61.880(2)(c) authority. The Cabinet failed to do so.
While the Cabinet and Mr. Dolan correctly articulate the legal standard for determining if a preliminary document has forfeited its preliminary status, 8 we agree with Mr. Dolan that the record on appeal is devoid of any proof relative to the Cabinet's claim that no final action has been taken on the disputed reports. 9 Like Mr. Dolan, we do not know, despite having expressly asked, to what specific end Secretary Birdwhistell directed Commissioner Burt to generate the reports and whether they have, or will be, put to this end. Nor do we know on what basis the decision to contract with Bluegrass to run Oakwood was made. Simply put, we cannot trace the reports to their conclusion, or anticipated conclusion, if we do not know what that conclusion is. Nor can we eliminate the Cabinet's decision to contract with Bluegrass to run Oakwood as the final action stemming from the reports in the absence of any proof relative to how that decision was reached. Finally, we lack the expertise to infer from a reading of the disputed reports what their underlying purposes and ultimate goals were. The Cabinet has not satisfied its burden of proof, and we therefore conclude that it violated the Open Records Act in denying Mr. Dolan's request.
The record before us contains no specific proof that the disputed reports were generated by Cabinet counsel for the purpose of providing legal services or that measures were taken to maintain the confidentiality of the reports other than the Cabinet's resistance to Mr. Dolan's request. Again, the Cabinet fails to meet its burden of proof in this regard. Accord, 96-ORD-206; 05-ORD-007; 06-ORD-166.
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 KRS 61.878(5) provides for agency sharing of otherwise exempt public records between public agencies "when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function." The Cabinet could, therefore, consider discretionary sharing of these records with Protection and Advocacy assuming, arguendo , that the records are exempt.
2 The Cabinet initially denied Mr. Dolan's request in its entirety. By letter dated May 1, 2007, this office reminded the Cabinet that in August 2006 it released the Root Cause Analysis identified in Mr. Dolan's request to Courier-Journal reporter Deborah Yetter in response to her request. Noting that Ms. Yetter's request "was handled by an attorney who has since left the Cabinet's employment," and that the current legal staff was unaware of the earlier disclosure, the Cabinet agreed to release the Root Cause Analysis provided to The Courier Journal to Mr. Dolan.
3 The Cabinet offers no explanation for its delay in responding to Mr. Dolan's request beyond the three business day statutory response time. This unexplained delay constituted a violation of KRS 61.880(1).
4 May 22, 2006, Administrative Order from Mark D. Birdwhistell to John Burt, p. 3.
5 The Cabinet also argues, in its supplemental response, that the Root Cause Analysis is shielded from disclosure by the attorney-client privilege, noting that Commissioner Birdwhistell's order identifies it as privileged communication. In view of the fact that the Cabinet has now released the Root Cause Analysis, we do not address this argument.
6 This office has recognized, on a number of occasions, that placing a notation such as "draft" or "confidential" on a public record does not restrict the public's right of access to the record unless the notation is supported by an applicable statutory exemption. See, e.g., 93-ORD-125 and 98-ORD-140.
7 The Cabinet also provided us with a copy of a June 9, 2006, document related to Oakwood's future, also stamped "DRAFT," that does not appear to have been requested by Mr. Dolan, per KRS 61.872(2), or this office, per KRS 61.880(2)(c).
8 With reference to the scope and application of KRS 61.878(1)(j), this office recently observed:
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871 as well as by the Kentucky Supreme Court's holding in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992), that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of the fact that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended. " KRS 61.878(1)[(i) - (j)]. From these exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578; see also, Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Guided by these principles, and an evolving body of case law, the Attorney General has consistently recognized that public records that are preliminary in nature qualify for exclusion only if they consist of drafts, notes, or correspondence with private individuals and/or recommendations or memoranda in which opinions are expressed or policies formulated, and that such records forfeit their exempt status if they are adopted by the agency as part of its final action. See, e.g., City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 659 (1982) (holding that if agency decision maker "adopts" preliminary notes or recommendations "as part of his final action, " their preliminary characterization is lost to that extent); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953, 956 (1983) (holding that preliminary records that are adopted by the agency "as the basis of its final action" become releasable); University of Kentucky v. Courier-Journal and Louisville Times Company, Ky., 830 S.W.2d 373, 378 (1992) (holding that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action").
07-ORD-108, p.6-8.
9 The record on appeal is also devoid of specific proof relative to the Cabinet's claim that the disputed reports are excluded from public inspection by operation of the attorney-client privilege. In 2001, the Kentucky Court of Appeals opined that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] . . . ." Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771,774 (2001). Affirming the University's reliance on 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 KRE 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 Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981).
. . .
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 a 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. On this basis, the court held that the disputed email communications were protected by the attorney-client privilege.