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 Department of Public Advocacy violated the procedural and substantive requirements of the Open Records Act in denying James Potter's December 8, 2011, request for documents "identifying Ms. Carolyn Keeley's cases by case name for March and April of 2010 and trial dates." 1 The Attorney General addressed a nearly identical issue in 02-ORD-103 and concluded that disclosure of the names of clients represented by a named DPA attorney "would violate neither the confidentiality of communications between the client and his attorney nor the privacy of the [client]." 02-ORD-103, p. 8. Continuing, we observed, "'the circumstances of the representation' make it obvious that the defendant, seeking representation of DPA counsel in open court, does not expect confidentiality as to the existence of the attorney/client relationship." Id. A copy of 02-ORD-103 is attached hereto and incorporated by reference.
In its December 19, 2011, response, DPA advised Mr. Potter that the agency "treat[s] the names as confidential [and] . . . view[s] the names of clients of proprietary [sic]." This response was procedurally deficient. KRS 61.880(1) establishes the guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
DPA's response was deficient insofar as it contained no statement of the exception to the Open Records Act authorizing the withholding of the requested records or an explanation of how the exception applies to the records withheld. DPA therefore violated KRS 61.880(1) in its initial response to Mr. Potter's request.
DPA amplified on its position in correspondence directed to this office after Mr. Potter filed his appeal. The agency acknowledged that "[w]hile court is public, as are court dockets, any information generated and kept in data form by DPA that contains client information is considered confidential. " DPA relied on "a policy -- based upon Rules of Professional Conduct and an ethics opinion, from the ethics 'hotline' -- not to disclose lists of client names absent a lawful order or other legal requirement to do so." DPA quoted liberally from Policy 9.00, "Performance Guidelines for Data Collection and Reporting," emphasizing a statement that appears in the policy to the effect that "specific case information is not to be shared, but generally case totals or trend data not identifying a particular client may be shared." In support of this statement Policy 9.00 cited "an opinion dated February 4, 2000," from the Kentucky Bar Association Ethics Hotline Committee.
That KBA opinion, which is not identified by opinion number, predates this office's decision in 02-ORD-103. It is unclear whether DPA cited it in the 2002 open records appeal. It is, however, clear that this office carefully considered DPA's arguments that Rule 1.6 of the Rules of Professional Conduct, and the attorney-client privilege, required it to maintain the confidentiality of client names. The Attorney General rejected both arguments. We cited
Hughes v. Meade, 453 S.W.2d 538 (Ky. 1970), for the proposition that the identity of a client is not a privileged communication and KBA E-253 for the proposition that "[a] lawyer may reveal the names and addresses of clients (a) only where that information is in the public record as a result of the attorney's representation of that client; [and] (b) where the circumstances of the representation make it obvious that the client does not expect confidentiality as to the existence of the attorney-client relationship." 02-ORD-103, p. 5-7. DPA did not appeal 02-ORD-103 pursuant to KRS 61.880(5). 2 Under authority of that unappealed open records decision, its position is untenable.
Nevertheless, DPA concluded its supplemental response in the instant appeal with the observation that although the information Mr. Potter requested "exist[s] in a database, and could be printed out in a report, there are not regular reports generated by DPA which contains [sic] client names and they are not used in our regular course of business, either by calendar year or fiscal year, or any portion of a year." Thus, the agency maintained that "the information can be fished out of the database, [but] such reports do not currently exist for any period of time."
Pursuant to KRS 61.874(3);
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred. (Emphasis added.)
Under the rule announced in 05-ORD-116, if it does not maintain a pre-existing query, filter, or sort capable of extracting the records as requested, it is within the discretion of a public agency to tailor the format of existing records to conform to the parameters of a specific request and to recoup both staff costs and actual costs in the event it exercises its discretion affirmatively. If, however, the agency maintains a pre-existing query, filter, or sort capable of extracting the information sought, the agency must produce the records, as requested, and can recover only its actual reproduction costs, excluding staff time and programming costs. A copy of 05-ORD-116 is attached hereto and incorporated by reference.
DPA indicates that the information Mr. Potter seeks "exist[s] in a database and could be printed out in a report," although such reports are not routinely generated. If DPA maintains a query, filter, or sort capable of extracting Ms. Keeley's cases by case name and trial dates for March and April of 2010 from its database, it must produce the report for Mr. Potter at a reasonable fee not to exceed its actual reproduction costs, not including staff time and programming costs, even if such a report does not currently exist or is not routinely generated. 3 If DPA does not maintain a query, filter, or sort capable of extracting the requested report, it may affirmatively exercise its discretion under KRS 61.874(3) to produce the report and assess a reasonable fee that includes its reproduction costs, staff time, and programming costs. If DPA does not maintain a query, filter, or sort capable of extracting the requested information, it may exercise its discretion negatively by refusing Mr. Potter's request, but must, in the alternative, afford him access to the entire Kentucky Unified Criminal Justice Information System database, after redacting any statutorily protected information contained in the database, so that he can extract the information he seeks for himself. If DPA elects this course of action, it may only assess Mr. Potter its actual reproduction costs, not including programming or staff costs associated with redaction. Accord 03-ORD-004 (enclosed). DPA may require Mr. Potter to prepay any of these reproduction fees before releasing the report to him. KRS 61.874(1); KRS 61.872(3)(b).
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:
James Potter, # 237268J. Chris McNeillBrian Scott West
Footnotes
Footnotes
1 In his letter of appeal, Mr. Potter notes that in 11-ORD-140, an open records decision to which he and DPA were parties, the Attorney General suggested at note 6 that if he wished "to obtain records identifying Ms. Keeley's cases by case name," he could "resubmit his request to DPA." He argues that this suggestion somehow governs the outcome in this appeal. This suggestion did not bind the Office of the Attorney General to a particular result in the event DPA denied the request and he filed an appeal of that denial.
2 KRS 61.880(5)(a) and (b) provide:
(a) A party shall have thirty (30) days from the day that the Attorney General renders his decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.882.
(b) If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.
3 Since the records sought are maintained electronically, Mr. Potter may designate whether he wishes to obtain the report electronically or in hard copy format. KRS 61.874(2)(a).