NOT TO BE PUBLISHED
March 9, 1994
In Re: Dennis F. Janes/Cabinet for Human Resources
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Dennis F. Janes, Esq., on behalf of his client, Ms. Debby Nelson, in connection with their efforts to obtain a copy of a particular document from the Cabinet for Human Resources.
In a letter to the Cabinet for Human Resources, dated April 15, 1993, Ms. Debby Nelson requested "a copy of the legal document regarding HIV infected children that would pertain to day care children." She stated that, "The legal document being requested was issued by Masten Childers, II on March 30, 1992."
In a letter to Ms. Nelson, dated April 20, 1993, Timothy A. Sturgill, Esq., responded on behalf of the Cabinet for Human Resources and advised in part as follows:
The document you requested is a legal opinion issued by the Cabinet's Office of the Counsel (now Department of Law) to Peggy Wallace, Commissioner of the Department for Social Services. Accordingly, your request is being denied pursuant to KRS 61.878(1)(h). That statute excludes preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended from the mandatory disclosure provisions of the Open Records Law.
Mr. Janes, in his letter of appeal to the Attorney General, dated April 29, 1993, stated that employees of the
Cabinet for Human Resources have already read to his client the contents of the document he is seeking. He disputes the Cabinet's assertion that the document is preliminary and maintains that Cabinet employees have relied upon the document to reply to his client's question. Mr. Janes maintains that he and his client are entitled to a copy of the document in question.
The undersigned Assistant Attorney General wrote a letter to Mr. Sturgill, dated January 31, 1994, requesting additional information from the Cabinet to substantiate its position. The Cabinet was also requested to furnish this office with a copy of the document in question.
In a letter to the undersigned Assistant Attorney General, dated February 7, 1994, Mr. Sturgill described the document in question as follows:
Pursuant to your request, enclosed you will find a copy of the document requested by Ms. Nelson. As you can see, the document is a memorandum from Mr. Childers, in his capacity as the Cabinet's General Counsel, to Commissioner Wallace. The memorandum sets forth the Office of the Counsel's opinion regarding certain legal issues that had been raised by staff of the Department for Social Services. It also contains the Office of the Counsel's preliminary recommendations to the Department for Social Services on ways to address these issues. It does not constitute final agency action regarding the matters addressed therein.
Mr. Sturgill maintained that the document was properly withheld pursuant to KRS 61.878(1)(h) and that it is protected from disclosure by the attorney-client privilege.
We agree with the Cabinet for Human Resources' assertion that it has not waived its right to withhold a document because of the inadvertent, improper, or unauthorized disclosure of some or all of the contents of the document. In OAG 83-140, copy enclosed, at page two, this office said in part:
It is the opinion of the Attorney General that there is no validity to Mr. Hoffer's
estoppel argument since estoppel is not effected by inadvertent actions or mistakes but only by previous actions by which the contrary has been admitted, implied or determined.
See also 93-ORD-78, copy enclosed.
This office has on numerous occasions dealt with the attorney-client privilege within the context of the Open Records Act. In 93-ORD-139, copy enclosed, at pages 4-5, we noted that KRS 61.878(1)(k) excludes from the mandatory disclosure provisions of 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 new Kentucky Rules of Evidence provide a clear evidentiary privilege for attorney-client communications. See KRS 422A.0503(2).
Having read the document in question and considered the provisions of KRS 61.878(1)(k) and KRS 422A.0503, the Cabinet for Human Resources was within its rights when it withheld Mr. Childers memorandum from public inspection.
KRS 61.878(1)(i), formerly codified as KRS 61.878(1)(h), provides that, "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended" may be withheld from public inspection by the public agency. The document prepared by Mr. Childers and submitted to Ms. Wallace could also have been withheld as a preliminary memorandum in which opinions are expressed. See 93-ORD-136, copy enclosed.
Mr. Janes may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against the Cabinet for Human Resources pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
Dennis F. Janes, Esq.
2100 Waterfront Plaza
325 West Main Street
Louisville, Kentucky 40202-4251
Timothy A. Sturgill, Esq.
Department of Law
Cabinet for Human Resources
275 E. Main Street
Frankfort, Kentucky 40621-0001