Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government ("LFUCG") violated the Open Records Act in the disposition of a request made by attorney William L. Davis to inspect records relating to an incident involving his client, James Reynolds, Sr. For the reasons that follow, we find no violation of the Act.
In his request dated March 28, 2013, Mr. Davis requested copies of the following:
(a) LFUCG Police Department's loss report and documentation prepared in connection with Mr. Reynolds; (b) Chris Welch's investigation report and documentation prepared in connection with Mr. Reynolds; and (c) the LFUCG Police Department's reports on LaMarcus, the person that the police accused Mr. Reynolds of being on October 24, 2012.
On April 3, 2013, LFUCG attorney Jacob Walbourn replied in pertinent part:
In regards to request "(a)," you are requesting documents that are subject to the attorney-client privilege and/or are considered attorney work product. Your request for these documents is denied. See KRS 61.878(1)((i), (j), and (l) and CR 26.02(3). The Attorney General has repeatedly held documents of this type are not subject to disclosure under the Open Records Act. [Citations omitted.]
Likewise, in regards to request "(b)," you are again requesting documents related to the investigation of the claim of Mr. Reynolds. These documents are subject to the same privileges articulated above. ?
The only items contained within the claims file of Mr. Reynolds that are not subject to the above articulated privileges are letters and/or emails from and/or to you from and/or to Thomas Sweeney and Chris Welsh [ sic ]. If you wish to review these documents, I can make the[m] available for your review. You may schedule a time to review them during normal business hours ? . Copies of these letters may be obtained at a cost of $ 0.10 per page.
In response to request "(c)," without further identification on the identity of "LaMarcus," we are unable to process your request, as we can not identify records relevant to the inquiry. Should you wish to provide further information so we can adequately identify records relevant to your inquiry, we will attempt to identify and provide responsive records.
(Emphasis in original.)
Mr. Davis appealed to this office on April 4, 2013, arguing that a matter "investigated by a nonlawyer" is not privileged and "the police surely know the full identity of LaMarcus since the police was [ sic ] searching for him and finally arrested him back in October 2012." He then gives his client's account of events that occurred on the afternoon of October 24, 2012. Essentially, Mr. Reynolds alleges that a Lexington police officer and a Fayette County deputy sheriff "forced themselves into his residence, " where they "accused him of being LaMarcus and accused him of running off from them." More peace officers arrived and executed a warrantless search of the residence, while Mr. Reynolds' hands were held behind his back by Lexington police. "Later on that night, the real LaMarcus was arrested by the police."
On April 23, 2013, Mr. Walbourn responded to the appeal on behalf of the LFUCG. He disputes Mr. Reynolds' account of the events of October 24, but does not address the details because they are, for the most part, irrelevant to this appeal. While the LFUCG does not specifically admit or deny Mr. Reynolds' claim that officers called him "LaMarcus" and arrested the real LaMarcus that same evening, Mr. Walbourn addresses Mr. Davis' request for records on "LaMarcus" as follows:
Without further information, the Division of Police was unable to identify any records responsive to that request. The Division of Police has indicated to counsel that there is documentation related to numerous individuals named "LaMarcus," but that without further identifiers (last name, date of birth, social security number, address, etc.) they are unable to identify any specific individual, and thus, can not provide records. The Division has further indicated simply referencing the date of Mr. Reynolds['] interaction with Police does not provide sufficient information regarding LaMarcus' identity so that appropriate records can be located. Accordingly, as no specific records could be identified, the Division was unable to process the request.
?
The Open Records Act requires public agencies to produce public records for inspection, , but does not require public agencies to answer questions. [Citations omitted.] In effect, Mr. Davis is essentially asking for LFUCG to determine LaMarcus' identity, and then produce records related to the person LFUCG determines is the correct LaMarcus. Mr. Davis has failed to provide information sufficient for the Division of Police to locate the records he is describing.
(Emphasis in original.) 1
With regard to requests to receive copies by mail, KRS 61.872(3)(b) provides, in pertinent part:
The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.) "[T]he primary purpose of the [Open Records] Act is making records available for public inspection. ? If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 95-ORD-108. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
In this case, the subject of the request was a person identified only by his first name, which evidently was insufficient to enable the LFUCG to determine the right person. Under these circumstances, the LFUCG did not violate the Open Records Act by requiring a more precise description. Cf. 13-ORD-077 (request for any and all records on an individual identified only by name did not "precisely describe" records sufficiently to enable the agency to identify the proper individual and locate the records).
We now address the LFUCG's invocation of the work product doctrine with respect to the loss report, investigation report, and related documentation concerning the incident with Mr. Reynolds. Mr. Walbourn argues:
The LFUCG Division of Claims Management is responsible for the administration of the LFUCG self insurance retention fund used to pay for losses normally covered by a traditional insurance program. Claims Management, or Risk Management Services Company (a subcontractor of the LFUCG) investigates claims, makes determinations of liability, and takes the appropriate action to deny or resolve claims. In the event that litigation is filed concerning a claim, Claims Management works with the Department of Law or outside counsel to resolve the litigation. Accordingly, even though every claim may not result in litigation, the documents in Claim Management's claims files are prepared in anticipation of litigation, and thus are work product.
In the present case, an investigation is ongoing, and no final determination has been made to date as to Mr. Reynolds' (Mr. Davis' client) claim. Mr. Davis, however, has attempted to obtain LFUCG's loss report, as well as the investigatory report of Chris Welch, an adjustor employed by Risk Management Services Company, and related documents. That request was denied by LFUCG on April 3, 2013, on the basis of KRS 61.878(1)(l), incorporating the attorney client privilege and/or work product doctrine (CR 26.02(3)), and/or KRS 61.878(1)(i) and (j) in that the documents are preliminary in nature.
?
? [E]ven in a case such as the present one where litigation has not yet arisen, documents prepared by Claims Management (or their agent, Risk Management Services Company) which contain the evaluation, mental impressions, conclusions, opinion and legal theories of LFUCG representatives or their agents are and remain work product. Thus, they are exempt from production pursuant to KRS 61.878(1)(l). Solely because Mr. Davis has not filed suit on behalf of his client yet does not impact the applicability of the privilege, as these documents are created in anticipation of litigation.
In addition, many of these documents are exempt in that they are preliminary drafts or notes or contain preliminary recommendations and preliminary memorandum [ sic ] in which opinions are expressed. KRS 61.878(1)(i) and (j). The administration of claims against the LFUCG necessarily entails a process of investigation and evaluation of those claims. Throughout this process, opinions are expressed and recommendations are made regarding resolution of the claim. OAG 91-185. Thus, the Claims Management documents (including the Loss Report and investigatory report of Chris Welsh, and related documents) are preliminary in nature, and exempt. As Mr. Reynolds['] claim has not yet been resolved or denied, the agency has not yet taken final action, and thus, all documents at this juncture remain preliminary.
(Emphasis in original.)
Mr. Walbourn's arguments are well taken. In 00-ORD-99, we upheld the denial of inspection of records of the Louisville Area Government Self Insurance Trust by a claimant against the city on the basis of the work product doctrine. "This doctrine, authority for which is derived from KRS 447.154, is formally recognized at CR 26.02(3) and incorporated into the Open Records Act by KRS 61.878(1)(l)." 00-ORD-99. CR 26.02(3)(a) "protect[s] against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." This extends to both actual and threatened litigation. 08-ORD-120. We have recognized that risk management claim files for the LFUCG are protected by the same rule. Id.
Copies of 00-ORD-99 and 08-ORD-120 are attached hereto, and they are adopted as the basis for our decision in the present appeal. Since the risk management records are subject to the work product doctrine, and records relating to "LeMarcus" were not precisely described with sufficient information to identify their subject, we find no violation of the Open Records 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 proceedings.
Distribution:
William L. Davis, Esq.Jacob Walbourne, Esq.Janet Graham, Esq.
Footnotes
Footnotes
1 Since "the date of Mr. Reynolds['] interaction with Police" is not considered sufficient identifying information, we presume that the Division of Police at least disputes the allegation that the "LaMarcus" for whom Mr. Reynolds was mistaken was arrested on that same date.