December 23, 1996

In re: Kara K. Clements/Lexington-Fayette Urban County Airport Board

Open Records Decision

This matter comes to the Attorney General on appeal from the Lexington-Fayette Urban County Airport Board's (also known as the “Bluegrass Airport Board”) denial of the open records request of Ms. Kara K. Clements, Esq., to inspect the following document:

The Report on loans to Georgetown Airport prepared by and/or transmitted by Newton & Associates, Inc. and Frank C. Newton, Jr. to Blue Grass Airport in February and/or March and/or April, 1996.

Ms. Sandra Mendez-Dawahare, Esq., on behalf of the Bluegrass Airport Board, denied Ms. Clements's request, stating:

Please be advised that Frank C. Newton issued a supplemental legal opinion to Blue Grass Airport regarding the Georgetown Airport. As such, the documents which you requested fall within the attorney/client privilege, and as such, will not be provided.

Neither the Board's open records response nor Mr. Newton's letter affirmatively asserts that he is an attorney or that an attorney-client relationship exists between the two. In order to obtain additional information regarding the relationship between the Board and Mr. Newton, the undersigned contacted Ms. Sandra Mendez-Dawahare by telephone. Ms. Dawahare explained that Newton & Associates were hired as consultants to advise the Board on matters related to the Bluegrass Airport and Mr. Newton, a consultant and attorney with the firm, had been asked to give a legal opinion on the matter regarding the Georgetown Airport.

Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and in order to facilitate our review of the issue raised in this appeal, this office requested a copy of the record in dispute. Although we cannot disclose its contents, we have examined the record for which the attorney-client privilege is claimed. It can be described generally as an opinion letter from Mr. Frank Newton, Newton & Associates, to Mr. John Rhodes, Director of Finance and Administration, Lexington-Fayette Urban County Airport

Board. The letter is labeled “CONFIDENTIAL - ATTORNEY CLIENT PRIVILEGE,” and Mr. Newton offers advice and his opinion regarding funding of the Georgetown Airport as it relates to the Bluegrass Airport Board.

We are asked to determine whether the response of the Bluegrass Airport Board in denying Ms. Clements's request was consistent with the Open Records Act. For the reasons which follow, we conclude that the response was consistent in part and inconsistent in part with the Act.

KRS 61.880(1) sets forth the duties and responsibilities of a public agency in responding to a request for access to documents made under the Open Records Act. That statute provides in part as follows:

An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.

In Edmondson v Alig, Ky. App., 43 K.L.S. 8 (August 2, 1996), the Court of Appeals, in discussing these response requirements of KRS 61.880(1), stated:

The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.

Thus, a public agency has the burden of justifying the withholding of a record by reference to the appropriate exception and by briefly explaining how that exception applies to the particular document withheld. These procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of a request to inspect public documents.

The Bluegrass Airport Board, in its response, does not cite a specific statutory exception which authorizes the withholding of the requested record. It merely states that Frank C. Newton (Newton & Associates) issued a supplemental legal opinion to the Board regarding the Georgetown Airport and, as such, it fell within the attorney-client privilege and would not be provided. This response is insufficient to meet the exact requirements of KRS 61.880(1) and constitutes a procedural violation of the Act.

As to the substantive issue, we conclude that the Bluegrass Airport Board properly withheld the requested record on the basis of the attorney-client privilege.

KRS 61.878(1)(l) authorizes public agencies to withhold “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.” This provision operates in tandem with Kentucky Rules of Evidence, KRE 503(b) to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:

(1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer;

(2) Between the lawyer and a representative of the lawyer;

(3) By the client or a representative of the client or the client's lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein;

(4) Between representatives of the client or between the client and a representative of the client; or

(5) Among lawyers and their representatives representing the same client.

In 94-ORD-88, this office, in analyzing the attorney-client privilege, said in part as follows:

The privilege thus consists of three elements: The relationship of attorney and client, communication by 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. R. Lawson, Kentucky Evidence Law Handbook, § 5.10 at 232 (1993), citing United States v Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). Its purpose is to insure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. Of course, the privilege “must be strictly construed and given no greater application than is necessary to further its objectives.” Kentucky Evidence Law Handbook, § 5.10 at 232.

In the instant appeal, the document in question is a legal opinion prepared by Mr. Frank Newton, a consultant and attorney retained by the Airport Board. Mr. Newton, in his capacity as an attorney, had been asked by the Board to give his opinion regarding the funding of the Georgetown Airport. Thus, the first two elements necessary to establish the attorney-client privilege are present.

First, the Board was the client and Mr. Newton was its attorney, within the relationship contemplated by the privilege. Secondly, the opinion, prepared by the attorney, was a communication made for the purpose of facilitating the rendition of professional legal advice sought by the Board.

This leads to the third element, the confidentiality of the communication for which the privilege is claimed. The document is labeled “CONFIDENTIAL - ATTORNEY CLIENT PRIVILEGE.” The Board has asserted the privilege in response to the open records request. Thus, the Board has continually maintained the confidentiality of the document from the time of its issuance to the present date. We conclude the Board has satisfied the third element of establishing the existence of the privilege in relation to the requested document.

Accordingly, the Airport Board's denial of Ms. Clements's request to inspect the supplemental legal opinion of Mr. Newton was proper and 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 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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Kara K. Clements

Trimble Bowling Clements

222 Security Trust Building

271 West Short Street

Lexington KY 40507-1211

Sandra Mendez-Dawahare

Landrum & Shouse

106 W. Vine Street

P. O. Box 591

Lexington KY 40588-0591