Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the University of Louisville's reliance on KRS 61.878(1)(i) and (j) to justify the denial of William E. Sharp's June 17, 2011, request for records relating "to the pending merger between the University of Louisville Hospital, Jewish/St. Mary's Hospital System, and Catholic Health Care Initiatives . . . between June 1, 2011, and June 17, 2011" was partially misplaced. These exceptions authorize nondisclosure of "[p]reliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency" and "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " Having reviewed the thirteen disputed emails identified by the University as responsive to Mr. Sharp's request, we affirm the denial of emails 2, 5, 6, 7, 8, 9, 10, 12, and 13, but find that emails 1, 3, 4, and 11 forfeited their preliminary characterization when they were adopted by the University as part of its final action relative to the subject discussed therein. For this reason, we conclude that the University violated the Act in withholding emails 1, 3, 4, and 11.
The parties to this appeal are well-versed in the pertinent legal authority but disagree about its application to the email in dispute. Both cite 06-ORD-021, an open records decision recognizing that "electronic records enjoy the same protection as hard copy records containing the same communications under a line of decisions dating back to 2000 [footnote omitted]," and
Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006). In Baker , the Court of Appeals affirmed the city's denial of a request for emails "exchanged between the mayor and the city council members," characterizing them as "preliminary discussions involving what course of action should be taken in regard to a controversy," and concluding that they were "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . [which] were not subject to disclosure. " Baker at 752. Our review of the thirteen disputed emails confirms that all but four of them are also "preliminary discussions involving what course of action should be taken in regard to" the merger controversy, punctuated by opinions and recommendations, and that they therefore fall squarely within the parameters of KRS 61.878(1)(i) and (j). The remaining four emails do not qualify for exclusion under these exceptions because they forfeited their preliminary characterization upon adoption into final agency action relative to their subject. Although we cannot disclose their content, by virtue of KRS 61.880(2)(c), 1 we can affirm that they relate to the details of a "communications meeting" 2 that occurred earlier this year. Inasmuch as the meeting "necessarily stem[med] from them, they must be deemed incorporated as a part of [the meeting]."
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659-660 (Ky. App. 1982).
In so holding, we note that a portion of email 11 reflects University counsel's advice regarding attendance at the meeting. That portion of email 11 is shielded from disclosure by KRE 503(a)(2), the attorney-client privilege.
Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001). Although proof of the elements of the privilege are sketchy, we can infer that counsel's advice was confidentially communicated, 3 in the course and scope of counsel's employment, for the purpose of facilitating the process of rendering professional legal services to the University. Thus, the paragraph commencing "Based on counsel's advice . . ." may be redacted pursuant to KRE 503(a)(2) as construed in Hahn. KRS 61.878(4). 4 Because KRS 61.878(1)(i) and (j) authorize nondisclosure of the nine emails cited above, we do not address the application of KRE 503(a)(2) to them. Neither KRS 61.878(1)(i) and (j) nor KRE 503(a)(2) apply to the remaining four emails, and, with the exception noted, the University's refusal to disclose them to Mr. Sharp constituted a violation of the Open Record Act.
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:
William E. SharpSherri F. PawsonAngela D. Koshewa
Footnotes
Footnotes
1 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.)
2 The University employed this terminology in its index of responsive emails.
3 As noted in Hahn , "KRE 503(a)(5) states that a communication is deemed 'confidential' 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." Disclosure of the disputed records to this office under the terms of KRS 61.880(2)(c) does not constitute waiver of the attorney-client privilege. 10-ORD-039.
4 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.