Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the City of Mayfield ("City") violated the Open Records Act in withholding an investigative memorandum prepared by an attorney as a preliminary document and as attorney-client privileged. We find that the City did not violate the Open Records Act in withholding an investigative memorandum prepared by an attorney as a preliminary document and as attorney-client privileged.
The Mayfield Messenger ("Messenger") submitted an open records request to the City on June 27, 2016. The Messenger requested "a copy of a 'preliminary memorandum' written to Mayfield Mayor Teresa Rochetti-Cantrell by Stacy Blankenship, legal counsel for the city, that contains information concerning the suspension without pay of Mayfield Police Department Major Shannon Keller and Lt. Chris Watkins." The City responded on June 29, 2016, denying the request on the grounds that it "is exempt from disclosure pursuant to the attorney/client privilege and KRS 61.878(1)(i) and (j). This document is a preliminary memorandum from legal counsel for the City with recommendations and expressed opinions."
The Messenger initiated this appeal on July 1, 2016. The Messenger stated:
The memorandum contains information concerning the suspension, without pay, of two Mayfield Police Department officers, Major Shannon Keller and Lt. Chris Watkins, for alleged administrative misconduct.
The two officers have resigned, reportedly to avoid a public hearing on the, so far, undisclosed allegations against them. As part of their resignation, they signed a confidentiality agreement with the city agreeing not to release any information or take legal action against the city.
A request from the Messenger for all paperwork related to the suspensions was quickly fulfilled by City Clerk Tamie Johnson, comprised of two letters given to the officers concerning their suspension and copies of their confidentiality agreements. . . .
However, the letters did not detail the specific reason for the suspension. The reasons were communicated verbally providing no written record.
However, a "preliminary" memorandum we have been told contains information about why the two officers were suspended without pay was not released.
. . . .
Blankenship said the preliminary nature of the memorandum protects it from public disclosure under attorney-client privilege. . . . She stated that the memorandum is the only document that contains the specific allegations against the two officers. 1
The City responded to the appeal on July 15, 2016. Counsel for the City stated:
Following the recent departure of several police officers from the City of Mayfield . . . . the City retained me to conduct an investigation and advise it concerning whether the investigation revealed allegations that may require discipline of any officers. It is important to note that this investigation was not spawned by a complaint filed by anyone. . . .
. . . My investigation indicated that the witnesses had common concerns about two officers -- Major Shannon Keller, who was acting as Chief in the absence of the Chief of Police, and Sgt. Chris Watkins, who was the supervisor on the night shift. Following a consultation, it was determined that Keller and Watkins should be suspended pending the investigation. . . .
After I spoke to numerous current and former police officers and reviewed some evidence, I sent a "Preliminary Memorandum" to the mayor, summarizing those interviews and making recommendations as to witnesses that still needed to be interviewed and evidence that still needed to be collected and considered.
In the meantime, . . . . the two officers who were suspended retained counsel. . . . Each attorney was verbally informed of some of the allegations against their respective client. Thereafter, the officers' attorneys informed me that their clients wished to resign in lieu of a public hearing. . . . Resignation Agreements . . . were reached with each officer. . . . Specifically, the City agreed not to voluntarily divulge the findings of the investigation but agreed to comply with the Kentucky Open Records Act.
. . . .
. . . The Preliminary Memorandum was exempt from disclosure due to the attorney/client privilege and due to . . . KRS 61.878(1)(i) and (j) . . . .
In support of its claims of the preliminary documents exemptions in KRS 61.878(1)(i) and (j), the City cited to
City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. Ct. App. 1982), and 12-ORD-055 for the proposition that "the internal affairs investigation documents were not subject to an Open Records Request but that any complaints filed against the officer are not per se exempt from inspection once final action is taken. . . . The investigation was not initiated by a filed complaint." The City argued that "no portion of the 'Preliminary Memorandum' was 'adopted, in whole or in part, as the basis for any final action by' the City of Mayfield." Counsel for the city stated that "had the officers chose not to resign, I would have completed my investigation . . . and issued a 'Final Memorandum' to the Mayor," and argued that any such Final Memorandum would only be subject to open records if incorporated by the Mayor after a public hearing.
In support of its assertion of attorney-client privilege, counsel for the City stated that "I did not advise the attorneys for the officers "what was in [my] memorandum. " I informed the attorneys for the officers of some of the allegations that were made by some of the witnesses I had interviewed up to that point. The City then cited to
The St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005), for the proposition that "statements provided to the hospital's risk management officer at the behest of the hospital's attorney . . . . were protected by the attorney-client privilege . . . . despite the fact that the underlying facts about which the nurses were aware had been disclosed to the opposing party during depositions." The City also argued that the preliminary memorandum was protected by the attorney work-product doctrine.
On Aug. 5, 2016, we requested to review the preliminary memorandum in camera under KRS 61.880(2)(c). The City provided the preliminary memorandum on Aug. 22, 2016, but redacted the names of all individuals referenced other than Keller, Watkins, and references to "the Chief." 2
Regarding the City's assertion of the preliminary documents exceptions, KRS 61.878(1)(i) exempts from the Open Records Act "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency," and KRS 61.878(1)(j) exempts "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." "Investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action."
Univ. of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992). "A resignation from a position by an employee before the Commission has reached a decision concerning possible termination is a 'final action. '"
Palmer v. Driggers, 60 S.W.3d 591, 597 (Ky. Ct. App. 2001). The City has thus taken a final action in entering into the resignation agreements in this case. However, Palmer held only that "the complaint that initially spawned that proceeding is subject to public scrutiny." Id. at 600.
In 12-ORD-055, we addressed a situation analogous to this one involving a police officer, in which "before the Chief decided whether to take any action regarding the PSU investigations . . ., 'she tendered her voluntary resignation. '" The appellee in that case argued that "inasmuch as 'no action was taken by the Chief on the investigations, no charges were brought against Cosgrove, and no disciplinary action was undertaken against her by anyone, no investigatory material was incorporated in any ''final action. '"' Id. Based on Palmer and City of Louisville , we held that "because OPD did not adopt the investigative records being sought as the basis for any final action, the records did not forfeit their preliminary characterization. " 12-ORD-055. See also 10-ORD-053 ("Officer Sutton's resignation was adopted by LFUCG as the basis for its final action, i.e., the decision to take no action, and the investigative records retain their preliminary characterization. "). Similarly here, we find that the investigative records sought were not adopted as part of the City's final action in accepting the voluntary resignations of Keller and Watkins, and therefore did not lose their preliminary status.
Regarding the City's assertion of attorney-client privilege, KRS 61.878(1)(l) exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." "The protections generally afforded by the attorney-client privilege have been recognized and incorporated into the statute by the Kentucky General Assembly."
Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. Ct. App. 2001). "The attorney-client privilege attaches to a confidential communication 'made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]; the client, the client's representatives, the lawyer, or the lawyer's representatives.'" St. Luke, 160 S.W.3d at 776. "The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice."
Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). However, "the attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions."
Commonwealth, Cabinet for Health and Family Servs. v. Scorsone, 251 S.W.3d 328, 330 (Ky. 2008). "The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney." Upjohn, 449 U.S. at 395.
Here, the preliminary memorandum meets the elements of the attorney-client privilege: it was made between a lawyer and a client for the purposes of legal representation. 3 The fact that the attorney was conducting a factual investigation does not waive the privilege. "Fact-finding which pertains to legal advice counts as 'professional legal services. '"
United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir. 1996). "The relevant question is not whether [a lawyer] was retained to conduct an investigation, but rather, whether this investigation was 'related to the rendition of legal services. '" In re Allen, 106 F.3d 582, 603 (4th Cir. 1997). The investigation in this case was conducted by an attorney for the purposes of legal services, and the attorney-client privilege applies. 4 5
In summary, the preliminary memorandum was not incorporated as part of any final agency action, and is a communication between an attorney and a client for the purposes of legal services. Accordingly, it is exempt both a preliminary document under KRS 61.878(1)(i) and (j), and as attorney-client privileged. In withholding the preliminary memorandum, the City did not violate 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 The Messenger also indicated that they had communicated with an attorney who advised them that "the fact that she has advised the attorneys for the officers what was in her memorandum means there is no attorney-client privilege with regard to those facts in the memorandum," and that "if that preliminary document is incorporated into a final decision -- either implicitly or otherwise -- it then becomes part of the final decision and is no longer a preliminary document."
2 Under 40 KAR 1:030 § 3, the preliminary memorandum has been destroyed concurrent with the issuance of this opinion.
3 We note that the City provided us a version of the memorandum with the names of all persons other than Keller, Watkins, and "the Chief" redacted. KRS 61.880(2)(c) provides that "the Attorney General may also request a copy of the records involved but they shall not be disclosed." It makes no further provision for redaction of the records submitted to this office for in camera review. "In determining the meaning of a statute, we must defer to the language of the statute and are not at liberty to add or subtract from the legislative enactment or interpret it at variance from the language used." Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 56 (Ky. 2011). The City's redaction of the memorandum submitted to this office for in camera review is therefore improper. However, as the redacted memorandum is sufficient to establish the City's burden to sustain its claims of exemptions, we decide without requesting an unredacted copy of the memorandum.
4 While the Messenger is correct that the attorney-client privilege does not protect the underlying facts, it does protect the communications from a lawyer to a client containing them. The underlying facts, to the extent they are discoverable from other sources, i.e. the witnesses themselves, are not privileged. However, the preliminary memorandum, as an attorney-client communication, is privileged.
5 Having found that the preliminary memorandum is attorney-client privileged, we must also find that it is not covered by the attorney work-product doctrine. See St. Luke, 160 S.W.3d at 777 ("The attorney-client privilege and the work-product doctrine are different . . . . In fact CR 26, which codifies the work-product doctrine, specifically exempts communications protected by the attorney-client privilege from its disclosure provisions. In short, attorney-client privileged communications do not fall within the ambit of CR 26 . . . .").