NOT TO BE PUBLISHED
May 4, 1995
In re: Mark F. Sommer/Revenue Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Revenue Cabinet's denial of Mr. Mark F. Sommer's request to inspect the Cabinet's Significant Cases Report.
On November 28, 1994, Mr. Sommer requested the Cabinet to "provide copies of certain materials identified herein relative to a Revenue Cabinet report, list or memorandum, or similar or like document, which provides a summary, as of July 15, 1994, of identifiable claims in suits brought against the Commonwealth of Kentucky."
After subsequent discussion between Mr. Sommer and the Cabinet, it was determined that Mr. Sommer was interested in a copy of a document referred to as the "Significant Cases Report," prepared by the Cabinet's legal counsel which describes and provides the status of significant cases involving the Cabinet.
Relying upon KRS 61.878(1)(l), the Cabinet denied Mr. Sommer's request for the report. In support of its denial, Mr. Douglas M. Dowell, on behalf of the Cabinet, by letter of December 19, 1994, stated:
The document you request was prepared by legal counsel for the Commonwealth of Kentucky and were made for the purpose of facilitating the rendition of professional legal services to the client (i.e., appropriate Revenue Cabinet and Kentucky State Government personnel)--interpretation of and advice concerning significant pending tax cases. This material is also prepared in anticipation of litigation and reflects or expresses the mental impressions, conclusions, opinions, etc., of counsel for the Commonwealth in these cases.
Accordingly, the document you request is exempt from disclosure under the open records law (i.e., pursuant to KRS 61.878(1)(l)) as work product and a privileged attorney-client communication. See, e.g., OAG 82-295; CR 26.02; KRE 501, 503; KRS 447.154.
On December 28, 1994, Mr. Sommer responded by letter asking the Cabinet to reconsider its denial. He attached a copy of a November 20, 1994, article published in the Louisville Courier-Journal. Mr. Sommer stated that information in that article made it apparent to him that the document he sought in his open records request had been released to the reporter. He argued that since the document had been publicly released outside of state government, the Cabinet's claim of privilege and open records exceptions to disclosure had been waived.
On January 13, 1995, Mr. Dowell responded to the request for reconsideration stating it remained the Cabinet's position that the document requested was exempt or not subject to disclosure under the Open Records Law.
We are asked to determine if the Cabinet properly denied Mr. Sommer's open records request to inspect the Cabinet's "Significant Cases Report."
Under authority of KRS 61.880(2) and 40 KAR 1:030, Section 3, and in order to facilitate our review of the Cabinet's response, we obtained copies of the records, which are the subject of this appeal, from the Cabinet. Those records were not disclosed to other parties and have since been returned to the Cabinet.
The Cabinet supplied this office two documents: the "Significant Cases Report," which is the subject of Mr. Sommer's request, and the "Status of Pending Cases Report," which is the report which Mr. Dowell believes was the report referred to and the basis of the Courier-Journal article.
The "Status of Pending Cases Report" is described as a "reference tool used by the Legal Services Division to provide up-to-date information as to the status of the cases and to monitor the caseload of the staff attorneys." It includes all tax cases of the Cabinet up through a particular date. From a review of this report and the Courier-Journal article, it appears that this is the report to which the article makes reference. The article, among other things, makes reference to "as of July 15, more than 150 identifiable claims in all suits against the state amounted to $839 million, but the list also includes many other suits with undetermined amounts." The date of the copy of the "Status of Pending Cases Report" was dated July 15, 1994, and contains more than 150 pending tax claims.
The "Significant Cases Report" contains considerably less than all the tax cases in which the Cabinet is involved. In his December 19, 1994, letter of denial, Mr. Dowell described this report as "a document prepared by the Revenue Cabinet's legal staff, which describes and provides the status of significant cases involving the Revenue Cabinet. This report is disseminated to certain Revenue Cabinet and Kentucky State Government officials and personnel."
Our review of the "Significant Cases Report" indicates that, in general terms, it is an internal agency document that, like the "Status of Pending Cases Report," sets forth the issues and status of the cases, but is different in that it lists only those cases which in the opinion of the Cabinet's legal staff are significant ones. The report also contains the legal staff's interpretation and advice concerning these cases, including such items as estimates of potential losses, duration of the litigation, and characterizations of the cases and significant issues.
This office has consistently held that records which are the work product of an attorney in the course of litigation or advising a client are not discoverable under CR 26.02 and are therefore exempt from disclosure under KRS 447.154 and KRS 61.878(1)(l). See OAG 92-14 and cases cited therein.
Accordingly, it is the decision of this office that the Cabinet properly denied Mr. Sommer's request to inspect the "Significant Cases Report" as that document constituted work product of the Cabinet's legal staff to its client, the Revenue Cabinet, Commonwealth of Kentucky.
Mr. Sommer may challenge this decision 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.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Douglas M. Dowell
Division of Legal Services
P.O. Box 423
Frankfort, KY 40602-0423
Mark F. Sommer
Greenebaum Doll & McDonald
3300 National City Tower
101 South Fifth Street
Louisville, KY 40202-3197