Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Park Hills violated the Open Records Act in the disposition of Lawrence Flick's December 8, 2017, request for "[a]ny records, reports, emails pertaining to investigation by Police Chief of the bumper sticker and the complaintants [ sic ] on Alhambra Court." For the reasons stated below, we find no violation of the Act.
On December 12, 2017, City Attorney Todd V. McMurtry advised Mr. Flick that his office was in possession of all responsive documents, stating as follows:
Several months ago I requested Chief of Police, Cody Stanley, to conduct an investigation related to a bumper sticker on a vehicle on Alhambra Court. As part of the investigation, I directed Chief Stanley to take a photo of the bumper sticker and review comments made on a website.
Chief Stanley compiled the following documents for my review: a photograph of the bumper sticker, comments about the bumper sticker from the website (with Chief Stanley's notes on the comments), and a copy of an executive order with Chief Stanley's notes on it . The only "report" is a confidential legal memorandum that I prepared for the Mayor and City Council to analyze certain legal issues presented by the bumper sticker. Finally, the only emails consist of emails exchanged between me and Chief Stanley regarding the investigation. 1
All records responsive to your request were confidentially exchanged between me and Chief Stanley. These documents were made and exchanged in order for me, the City's legal counsel, to draft a confidential legal memorandum for the Mayor and City Council. Accordingly, Kentucky Revised Statute § 61.878(1)(l) and Kentucky Rule of Evidence 503 exempt all these records from disclosure under the Open Records Act.
(Emphasis added.) Mr. Flick appealed this denial on March 22, 2018.
In a response dated March 29, 2018, Mr. McMurtry explained the factual background pertaining to this request:
The bumper-sticker investigation refers to an incident where voluntary committee members of the City of Park Hills allegedly harassed a private resident regarding an alleged bumper sticker purportedly on the resident's vehicle. The Mayor asked the undersigned to work with the Chief of Police and draft a legal opinion regarding the incident. As part of the investigation, the Chief of Police compiled a number of documents for my review? On September 25, 2017, I hand delivered a letter to the Mayor regarding my legal opinion as to whether any crimes were committed by the committee members.
Mr. McMurtry adds that "the purpose of the investigation was not to determine whether a crime would be prosecuted? Rather, the purpose of the investigation was to assess the City's civil liability with respect to the incident." (Emphasis added.) He states that the opinion letter "was confidential and not disclosed to any third party," and argues that the attorney-client privilege also applies to "all of the documents exchanged between [counsel] and the Chief of Police" because they "were generated and exchanged solely to enable the provision of legal advice to the Mayor."
The Kentucky Court of Appeals has 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).
The decisions of this office have also 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.
(Emphasis added.)
"KRE 503(c) presumes that lawyers have authority to assert the privilege on behalf of clients. It is to be expected that lawyers will claim the privilege for clients in the absence of explicit directions to the contrary." Kentucky Evidence Law Handbook, supra , at § 5.10. It is well established that "communications" between attorney and client, for purposes of the privilege, are not limited to "verbal exchanges of pertinent information," but may include "physical acts that are disclosive in nature," such as "[t]he delivery of a document." Id. (citing Phoenix Ins. Co. v. Wintersmith, 30 Ky. L. Rptr. 369, 98 S.W. 987 (1907)).
In this case, the chronology indicates that all records responsive to Mr. Flick's request represent confidential communications between an attorney and client, or representatives of a client, for purposes of rendering professional legal advice as to the potential civil liability of the City of Park Hills. The investigation was initiated at the request of the mayor, who asked the city attorney to work with the chief of police to ascertain the facts and prepare a legal opinion. A photograph was taken in furtherance of this investigation and provided to counsel. Certain website comments and an executive order were provided to counsel for legal analysis, along with notes made by the police chief. Finally, the city attorney generated a confidential legal memorandum, which was provided only to the mayor and the city council, who were unambiguously representatives of the client.
We requested the records involved for in camera review pursuant to KRS 61.880(2)(c), and the city complied with the request. After examining the records in camera , we find nothing to indicate that any of these communications were shared with third parties. All information indicates that the exchanges were made confidentially, in the scope and course of Mr. McMurtry's employment as counsel for the city, for the purpose of seeking and rendering legal advice. Accordingly, we find that the attorney-client privilege under KRE 503, as incorporated into the Open Records Act by KRS 61.878(1)(l), applies. The city's actions were therefore consistent with 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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