Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, 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 Clark County Attorney John M. Hendricks properly relied on KRS 61.878(1)(h) in denying William D. Elkins' February 14, 2014, request to inspect and obtain copies of "all written or recorded records ? including emails, text, messages, etc., which relate to the recusal and the seeking and obtaining [of] an out-of-town special prosecutor" in misdemeanor case 12-M-1356, in which the Clark County Attorney's office recused from the prosecution.
KRS 61.878(1)(h) provides, in part:
[R]ecords or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
It is the decision of this office that 00-ORD-116, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. See also
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005). As the Supreme Court observed in Bowling , at 339, KRS 61.878(1)(h) "appl[ies] equally to all records in the litigation files of the [County Attorney and the] Commonwealth's Attorney, regardless of origin." By its express terms KRS 61.878(1)(h) also applies to all records in the investigative files of the County Attorney or Commonwealth's Attorney regardless of what stage of proceeding the case under investigation has reached.
We find no merit in Mr. Elkins' argument that the request for appointment of a special prosecutor does not pertain to criminal litigation. Any pleading filed in the record of a criminal case is pertinent to the criminal litigation. Accordingly, we conclude that the Clark County Attorney did not violate the Open Records Act in denying this portion of Mr. Elkins' request. The same or similar records may be accessible through the court clerk, but not through the County Attorney.
A further question presented in this appeal is whether the County Attorney violated the Open Records Act in the disposition of another portion of Mr. Elkins' February 14 request, which was framed as follows:
You [the County Attorney] acted as plaintiff's lawyer in Honaker v. Circle E (Henry Mattingly/ 09-CI-00026)[,] while at the same time being the elected County Attorney. K.R.S. 69.210 reads, "The county attorney shall attend the fiscal court or consolidated local government and conduct all business touching the rights or interests of the county..." Please produce for inspection records relating to any communication you had with the Fiscal Court, through its members or staff, relating to the rights or interests of the County as owner of the property where this accident occurred. Please provide for inspection all written or recorded records, including emails, text, messages, etc., including any emails or records generated on office machines and used to communicate with the plaintiffs. 1
In response, Mr. Hendricks stated on February 19, 2014:
Your second request for inspection of records for any communication that this office had with the Fiscal Court "relating to the rights or interest of the County as owner of the property where this accident occurred." Any such conversations, records, emails or messages, if such exist, would be subject to the attorney-client privilege and/or work product and would not be subject to the Open Records Act pursuant to KRS 61.878.
Mr. Elkins appealed this disposition to the Attorney General on February 20, 2014, arguing that the attorney-client privilege does not apply in the context of the Open Records Act.
We do not accept Mr. Elkins' argument. The decisions of this office and the courts have consistently held that the attorney-client privilege is incorporated into the Open Records Act through KRS 61.878(1)(l). In 97-ORD-127, we stated:
KRS 61.878(1)(l) . . . operates in tandem with KRE 503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege, [which] consists of three elements: The relationship of attorney and client, communication by or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed. Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3rd ed. 1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2nd Cir. 1989). Its purpose is to [e]nsure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. . . . The privilege extends to communications from attorney to client "if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence." Kentucky Evidence Law Handbook at § 5.10 citing United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objective." Kentucky Law Evidence Law Handbook § 5.10.
More recently, as we noted in 12-ORD-206, the Kentucky Court of Appeals recognized that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] by the Kentucky General Assembly."
Hahn v. University of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). The court reasoned as follows:
[The attorney-client privilege, codified at KRE 503,] recognizes that sound legal advice and advocacy serve vital public purposes and that such advice and advocacy depend upon a guarantee of confidentiality between attorney and client. Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981).
KRE 503(b) provides that:
KRE 503(a)(5) states that a communication is deemed
The privilege attaches to confidential communications made for the purpose of facilitating the process of rendering professional legal services to a client; counsel must be acting in the course and scope of employment for the client, and the communication must pertain to the matter within the course and scope of that employment. KRE 503(a)(2); Underwood and Weissenberger, Kentucky Evidence 2001 Courtroom Manual, § 503 (2000).
Hahn at 775-776 (emphasis added). "[N]ot all communications between an attorney and a client are privileged, and the burden is on the party claiming the privilege to prove that it exists as to the communications so claimed."
The St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky. 2005). For example, billing statements from a private attorney to a public agency are generally not privileged when requested from the agency.
Commonwealth v. Scorsone, 251 S.W.3d 328 (Ky. App. 2008). 2
In this case, any communications from the County Attorney's office to advise the fiscal court on the narrow subject of the rights or interests of the county as a property owner would be communications between attorney and client "for the purpose of facilitating the process of rendering professional legal services. " Regarding the confidentiality of such communications, Mr. Hendricks originally indicated in his February 19 response that no "records generated on office machines [were] used to communicate with the plaintiffs" in the civil action, so it is clear that any responsive records would not have been communicated to the plaintiffs.
Furthermore, In a March 3, 2014, response to Mr. Elkins' appeal, Mr. Hendricks stated the following:
As way of background, it appears that Mr. Elkins is referencing an accident that occurred on August 3, 2008 at the Clark County Fairgrounds. Eventually a lawsuit styled Honaker v. Circle E was filed which is referenced by Mr. Elkins in the opening of the paragraph. At no time in the course of the litigation was Clark County a party, nor did the plaintiff or defendants ever seek to add Clark County as a party to the suit. However, Mr. Elkins requests communications made to the Clark County Fiscal Court regarding the "rights or interests" of the county by the County Attorney's office. Any advice concerning the "rights or interests" of the county would be exempted from the Open Records Act pursuant to the attorney-client privilege and/or work product pursuant to KRS 61.878.
?
? Such communications, if they exist would be subject to the attorney-client privilege as the County Attorney's office acts as the attorney for the county. ?
Since no party ever sought to add Clark County to the lawsuit, it may be supposed that any communications from the County Attorney's office to the fiscal court about the county's rights or interests would have remained confidential as Mr. Hendricks indicates. Thus, inasmuch as such communications were not disclosed beyond the limits stated in KRE 503(a)(5), they would be subject to the attorney-client privilege.
Mr. Elkins points out that it has not been made entirely clear whether any such records exist. In his March 4 response to the appeal, Mr. Hendricks stated:
Finally, Mr. Elkins also takes issue with the use of the words "if such exists" in the denial of his request. The Attorney General's Office has previously affirmed a denial in which the agency stated "any documentation which may exist regarding this subject matter involves protected communication...". 04-ORD-149 (emphasis added). ? KRS 503 provides that the privilege is held by the client, the Clark County Fiscal Court. The County Attorney's office cannot waive the privilege and the mere acknowledgment of communications could be considered a breach of privilege. The records requested by Mr. Elkins so clearly falls within the scope of the attorney-client privilege that identification or acknowledgment of responsive documents is not required.
It is not necessary, in every case, for the Attorney General on appeal to conduct a review of disputed records pursuant to KRS 61.880(2)(c). Cf. Hahn, 80 S.W.3d at 775 (" in camera review of a contested communication is one method of determining whether a privilege has attached"). (Emphasis added.) Although it might be true that in some cases, as argued by Mr. Hendricks, "the mere acknowledgment of communications could be considered a breach of privilege, " we express no opinion as to whether that is true in this case. Nevertheless, in any case where it is deemed necessary, the Attorney General is fully able to review allegedly privileged records without causing the attorney to violate the privilege. See, e.g., 04-ORD-149, n.2. In this case, the specific description of the records requested, in view of the circumstances as they have been represented, is sufficiently indicative of their confidential nature.
In further correspondence to this office dated March 5, 2014, Mr. Elkins emphasizes that he seeks "to protect the public interest" by uncovering the existence of possible conflicts. As commendable as that goal might be, "when a communication is protected by the attorney-client privilege it may not be overcome by a showing of need by an opposing party to obtain the information contained in the privileged communication." The St. Luke Hospitals, supra, 160 S.W.3d at 777.
We do find a procedural violation in connection with the County Attorney's invocation of the attorney-client privilege. The County Attorney's response was procedurally deficient insofar as it did not "include a statement of the specific exception authorizing the withholding of the record," namely subsection (1)(l) of KRS 61.878, as required by KRS 61.880(1). See 12-ORD-062. Substantively, however, 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 proceeding.
Distributed to:
William D. Elkins, Esq.John M. Hendricks, Esq.
Footnotes
Footnotes
1 Mr. Elkins has not, in this appeal, contested Mr. Hendricks' statement that no communications with the plaintiffs were generated on County Attorney office machines.
2 Since a county attorney is an elected official whose salaried duties include representation of the county, there is no reason for billing records to exist in this case.