Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in denying Rob Dixon's December 15, 2009, request for copies of records relating to an automobile accident involving Josue De La Cruz Medina. Mr. Dixon is an investigator employed by Mr. De La Cruz Medina's attorney, Christopher L. Jackson, to conduct an investigation into a December 8, 2009, accident that occurred in Dry Ridge, Kentucky in which Mr. De La Cruz Medina was seriously injured. Because Mr. Dixon was employed by Mr. Jackson to assist him in rendering legal services, and proof of that employment relationship was presented to KSP, we find that KSP improperly denied Mr. Dixon's request on the basis of KRS 189.635(5), incorporated into the Open Records Act by KRS 61.878(1)(l). Additionally, we find that KSP's response was procedurally deficient.
The records identified in Mr. Dixon's December 15 request consisted of:
The 911 audiotape and associated C.A.D. report, accident report, accident reconstruction report, videotapes, reprints of all photographs, witness statements either handwritten or recorded, officers' field notes; Mobile Data terminal print-outs, any documentation associated with the operators of the vehicles involved in the accident, e.g., driving histories, criminal histories, etc., witness list, driver and vehicle data sheets, vehicle inspection reports, lab analysis reports, diagrams, documentation listing any and all physical evidence, and results of event data recorder analysis, if applicable.
On December 22, KSP notified Mr. Dixon that the requested records would be released to him "to the extent required under the Kentucky Open Records Act upon completion of [KSP] review," and that "[t]he records or a letter stating the status of [his] request would be mailed to [him] on or before December 30, 2009."
By letter dated December 28, 2009, Mr. Jackson notified KSP that he had retained Mr. Dixon and Northern Kentucky Investigative Services "to conduct an investigation regarding his client, Josue De La Cruz Medina" and asked that KSP mail Mr. Dixon a copy of the report. On January 7, 2010, KSP advised Mr. Jackson that although he and his office were an "entitled party" under KRS 189.635, "that statute does not allow for attorneys to have a written designee to provide a copy to." (Emphasis in original.) Having received no further correspondence from KSP, Mr. Dixon initiated this appeal on January 8, 2010. KSP issued "a final response letter" to him on January 13, 2010, providing him with copies of "driver statements, audio recordings of 911 calls and radio traffic, the dispatch log, and commercial vehicle inspection sheets," but withheld "the accident report itself and the photographs of the accident, as they are an attachment to the accident report. " In supplemental correspondence directed to this office, KSP explained:
KRS 189.635 clearly states that accident reports are a confidential record as opposed to a public record and are only to be released to the parties to the accident, the attorneys of the parties to the accident, the insurers of the parties, and media sources. The statute does not have a provision to allow attorneys to the parties to provide a written designee to obtain the records on their behalf. The KSP must strictly adhere to the provisions of KRS 189.635, and denial of the request for the accident report and photos was appropriate in compliance with KRS 189.635 and 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall be exempt from the provisions of the Open Records Act.
KSP therefore requested that Mr. Dixon's appeal be dismissed.
Procedurally, KSP's response to Mr. Dixon's request was deficient. In the event nonexempt records are not available for inspection or mailing on the third business day after receipt of the request, 1 KRS 61.872(5) 2 requires a detailed explanation of the cause for delay, in writing, along with a statement of the earliest date on which the public record will be available . . . ." KSP issued a timely response to Mr. Dixon's request, but failed to offer a detailed explanation of the cause for delay. Further, KSP indicated that the records, "or a letter stating the status of [his] request" would be mailed to Mr. Dixon "on or before December 30, 2009." KSP did not fulfill this commitment, but instead issued a final response to him on January 13, offering no explanation for the additional delay. KSP thus violated KRS 61.880(1) and KRS 61.872(5) in responding to Mr. Dixon's request.
Turning to the substantive issues on appeal, we find that KSP improperly denied Mr. Dixon copies of the requested accident reports and related photographs pursuant to KRS 189.635(5). That statute, which is incorporated into the Open Records Act by KRS 61.878(1)(l), 3 provides:
All accident reports filed with the Department of Kentucky State Police in compliance with subsection (4) above shall not be considered open records under KRS 61.872 to 61.884 and shall remain confidential except that the department may disclose the identity of a person involved in an accident when his or her identity is not otherwise known or when he or she denies his or her presence at an accident. Except as provided in subsection (9) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (8) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and insurers or their written designee for insurance business purposes of any party who is the subject of the report, or to the attorneys of the parties.
In construing these provisions, the Attorney General has observed:
KRS 189.635(5), in tandem with KRS 61.878(1)(l), requires that a public agency deny a request for copies of accident reports not submitted by parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys of the parties, and news gathering organizations "solely for the purpose of publishing or broadcasting the news." KRS 189.635(6). This specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act.
02-ORD-155, p. 4; see also, 03-ORD-188; 01-ORD-127. While this provision admits of only the specifically enumerated exceptions found in its concluding sentence and in KRS 189.635(6) , KSP interprets the provision too narrowly in excluding employees of attorneys representing the parties. Fundamental to this conclusion is the recognition that the attorney-client privilege extends to representatives of the attorney when those representatives are employed by the attorney to facilitate the rendition of legal services and the identity of purpose that underlies the privilege.
KRE 503(b) provides, in part:
General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:
"A communication is 'confidential' " within the meaning of KRE 503(b), "if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." KRE 503(a)(5). A "representative of the lawyer" is, in turn, "a person employed by the lawyer to assist the lawyer in rendering professional services." KRE 503(a)(4). Mr. Dixon is a representative of Mr. Jackson, the attorney retained by a party to the accident, and disclosure of the accident reports and photographs to Mr. Dixon "is made in furtherance of the rendition of professional legal services to the client," just as it would be if the reports and photographs were disclosed to Mr. Jackson. Evaluating the purpose underlying KRE 503(a)(5), the authors of Kentucky Evidence Courtroom Manual remark:
KRE 503(a)(4) is consistent with the modern cases in that it recognizes that today lawyers use the services of accountants, investigators, paralegals, secretaries, short-hand reporters and media technicians, and various experts, to deliver legal services to the client. If communications to and from such persons are part of the facilitation of legal services, then the privileges should apply.
R. Underwood and G. Weissenberger, Kentucky Evidence 2005-2006 Courtroom Manual, Ch. 503 at 198, 199 (2005). Given the identity of purpose and privilege between the client, the client's attorney, and the attorney's representative recognized in the Kentucky Rules of Evidence, we find no support for the exclusion of an investigator employed by an attorney to facilitate the rendition of legal services to the attorney's client from the statutorily recognized exceptions to the general rule of confidentiality codified at KRS 189.635(5) .
Mr. Jackson confirmed Mr. Dixon's status as an investigator in his employ and requested that KSP provide Mr. Dixon with a copy of the accident reports in the furtherance of the rendition of legal services to Mr. De La Cruz Medina. Under these facts, KSP's refusal to treat Mr. Dixon as an "entitled party" constituted a restriction on access that exceeded the intended scope of KRS 189.635. KSP willingly released to Mr. Dixon all other records relating to the accident to which he requested access. To withhold the accident reports and photographs violated KRS 61.878(1)(l) insofar as that provision only incorporates public records "the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," and KRS 189.635(5) does not restrict an attorney, representing a party to the accident, from obtaining a copy of the accident report. Mr. Dixon stands in Mr. Jackson's shoes for purposes of obtaining a copy of the accident reports relating to the accident he was hired by Mr. Jackson to investigate. Accord OAG 09-009, p. 7 (recognizing that KRS 422.317 authorizes a patient to obtain a free copy of his or her medical records, but "does not preclude someone, acting as the agent for a patient, from asserting the patient's right under the statute, provided they have the consent of the patient . . . .")
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.
Rob DixonEmily M. PerkinsRoger Wright
Footnotes
Footnotes
1 The statutory right to obtain copies by mail is contingent on prepayment of copying and postage charges. KRS 61.872(3)(b); KRS 61.874(1). Under these facts, the law assumes that the records have been compiled and are available for mailing.
2 KRS 61.872(5) thus provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
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3 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."
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