Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Lexington-Fayette Urban County Government did not violate the Open Records Act in denying Michael Winkler's March 17, 2008, request for "any and all documents in [his] claim file and any reports of actions taken by LFUCG pertaining to this matter as of this date 3-17-08." In October 2006, Mr. Winkler submitted a claim to the LFUCG Division of Risk Management, in which he alleged that he sustained injury to his health and his property as a consequence of the Gainesway Retention Pond Sediment Removal Project. The Division administers the LFUCG self insurance retention fund by investigating claims, determining liability, denying or resolving claims, and working with the Department of Law or outside counsel when litigation is initiated. Following its investigation, the Division denied Mr. Winkler's request in December 2006.
In response to multiple open records submitted before final resolution of his claim, and since final resolution of that claim, LFUCG has released in excess of 600 pages of records to Mr. Winkler. LFUCG denied Mr. Winkler's request for his Division of Risk Management claim file on the basis of KRS 61.878(1)(l), incorporating the attorney client privilege and/or work product doctrine found at CR 26.02(3), and KRS 61.878(1)(i) and (j). It is the decision of this office that 00-ORD-99, a copy of which is attached hereto and incorporated by reference, supports LFUCG's position and is dispositive of the issue on appeal. We therefore affirm LFUCG's denial of Mr. Winkler's March 17 request.
In 00-ORD-99, this office affirmed the City of Louisville's denial of a request for records maintained by the city's self insurance trust on the basis of CR 26.02(3) and KRS 61.878(1)(l), incorporating the former civil rule into the Open Records Act. There, we recognized that the city and its self insurance trust "share a common purpose in the assessment and handling of potential liability" of the municipality in threatened or actual litigation. 00-ORD-99, p. 9. Further, we recognized that the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party (including consultants, sureties, indemnitors, insurers, or agents) "as to the strengths and weaknesses of a case and the value of a claim go to the very essence of the work product privilege," and that that privilege "should not be deemed waived unless the disclosure is inconsistent with maintaining secrecy from adversaries." Id.
Applying this reasoning to the records at issue in this appeal, we find that the LFUCG properly relied on CR 26.02(3) in denying Mr. Winkler's request for his risk management claim file. Our review of the contents of that file confirm the LFUCG's position. Accordingly, we find that the LFUCG did not violate the Open Records Act in the disposition of Mr. Winkler's March 17 request.
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.