Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Alexandria violated the Open Records Act in denying Brandon N. Voelker's request for "all letters from the insurance company in the Jaggers v. City of Alexandria, Campbell Circuit Case Number 07-CI-0046 and Speedway SuperAmerica, LLC vs. City of Alexandria, Campbell Circuit Case Number 07-CI-00746." For the reasons that follow, we find that the City properly denied the request for the records at issue.
By letter dated July 9, 2009, Karen M. Barto, Alexandria's City Clerk, relying on KRS 61.878(1)(i) and (j), denied Mr. Voelker's request, explaining:
Any such documents are preliminary drafts, notes, correspondence with private individuals, other than correspondence with private individuals, other than correspondence which is intended to give notice of final agency action of a public agency, and/or are preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies are formulated or recommended, and thus are excluded from the Open Records Act.
Shortly thereafter, Mr. Voelker initiated the instant appeal. Mr. Voelker argues that the request was simply for any coverage determinations from the City's insurance carrier, and he was not seeking documents possibly created by the City but rather a third party.
After receipt of notification of the appeal, Molly McEvoy Boh, Assistant City Attorney for the City of Alexandria, provided this office with a response to the issues raised in the appeal. In her response, Ms. Boh advised that no final action of the City was taken in any such documents. Expanding on the City's original response, she further advised in relevant part:
In 92-ORD-1024, the Attorney General found that KRS § 61.878(1)(g) and (h) (now codified as (i) and (j)) "are intended to insure the integrity of the decision making process by protecting all pre-decisional documents. Documents which fall within the parameters of these exceptions retain their exempt status unless they are adopted as final agency action. " See also, 00-ORD-195, 00-ORD-99.
The City's correspondence or communication is with its liability insurance company concerning pending litigation. In the event such correspondence does not fall within the exclusions of KRS § 61.878(1)(i) and (j), which the City maintains it does, it clearly falls within the exclusion of KRS § 61.878(1)(l). Kentucky Rule of Evidence 509 states in part:
Moreover in 92-ORD-1024, the Attorney General recognized in citing Asbury v. Beerbower, 589 S.W.2d 216 (Ky. 1979), that one may assume that disclosure of privileged communications to an insurer falls within the scope of the attorney-client privilege, although the insurer is technically a third person, since the communication is made to the insurer as an agent for the dominant purpose transmitting it to an attorney for the protection of the interests of the insured.
Pursuant to KRS 61.880(2)(c) and to facilitate our review of the issue on appeal, we requested the City to provide this office with a copy of records at issue for in camera inspection. As directed by KRS 61.880(2)(c), we cannot disclose the contents of this record. However, we can provide a general description of the records in reaching a decision as to whether an agency has acted consistently with the Open Records Act in relation to that record. Our review confirms that the records at issue are as described by the City in its responses. It can generally be described as correspondence between the City and its liability insurance carrier concerning insurance coverage and pending litigation, in which opinions are expressed and reflects no final action taken by the City.
For the reasons that follow, we find that the City properly denied the request for the records at issue under authority of KRS 61.878(1)(i) and (j) and KRE 509, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 1
In 92-ORD-1024, this office held that the City of Louisville properly relied upon, what is now codified as KRS 61.878(1)(i) and (j), in denying a request for the individual reserve amount estimated by attorneys in reference to pending litigation as it was preliminary, inter-office information reflecting their opinions and recommendations and did not reflect a final dollar amount. In reaching that conclusion, we stated:
KRS 61.878(1)[i] and [j] have been interpreted to authorize nondisclosure of preliminary reports, worknotes, and memoranda containing opinions, observations, advice, and recommendations of personnel within agency, as well as outside of an agency. [OAG opinion citations omitted.] These subsections are intended to insure the integrity of the decision making process by protecting all pre-decisional documents. Documents which fall within the parameters of these exceptions retain their exempt status unless they are adopted as final agency action. Only those records which are so adopted must be made available for inspection inasmuch as they lose their preliminary status. We believe that the cited documents requested by the [requester] fall squarely within these exceptions.
As noted by the City in its supplemental response, the correspondence or communication at issue was between the City and its liability insurance carrier concerning pending litigation and reflect no final agency action. Our in camera review confirms the City's characterization of the records, and we conclude that it properly withheld access to the records under KRS 61.878(1)(i) and (j).
Moreover, we additionally affirm the City's reliance upon KRE 509 for withholding access to the records. In 92-ORD-1024, citing KRE 509, this office held that the attorney-client privilege applied to those portions of attorney billing statements which reveal substantive legal matters, and was not waived by their disclosure to the City of Louisville for purposes of third-party payment for professional services. Recognizing that a client's disclosure of privileged communications to a third party generally constitutes a waiver of the privilege, this office cited to the rule announced in
Asbury v. Beerbower, 589 S. W. 2d 216 (Ky. 1979), which recognized that a communication made by an insured to his liability insurance carrier, concerning an event which may give rise to a claim against him was a privileged communication, as if it were between an attorney and client, and the privilege was not waived by the communication. We concluded that the City of Louisville properly relied upon KRE 509 in denying access to those portions of attorneys' bills which would reveal substantive legal matters, as they were protected by the attorney-client privilege.
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. See also, 08-ORD-120.
Applying the reasoning of 92-ORD-1024 and 00-ORD-99 to the records at issue in this appeal, we find that the City also properly relied on KRE 509, in denying Mr. Voelker's request for communications between the City and its liability insurance carrier concerning pending litigation and insurance coverage. Accordingly, we find that the City did not violate the Open Records Act in the disposition of Mr. Voelker's 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.
Distributed to:
Brandon N. VoelkerKaren M. BartoMolly McEvoy Boh
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes 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.