February 15, 1996

In re: Anthony R. Trusty/City of Louisville


This matter comes to the Attorney General on appeal from the City of Louisville's denial of an open records request by Mr. Anthony R. Trusty to inspect

“a copy of the document regarding the Louisville Policeman's Retirement Fund written by Marvin Hirn in March of 1988 at the request of Mayor Abramson.”

Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, denied Mr. Trusty's request, stating:

I am advised that the document you seek is exempt from disclosure under KRS 61.878(1)(j) and (l) (preliminary recom- mendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended; attorney work-product; attorney-client privilege).

In his letter of appeal to this office, Mr. Trusty asserts that the City wrongfully characterized the document as either preliminary recommendations and preliminary memoranda and exempt under KRS 61.878(1)(j) or as attorney work-product or attorney-client privilege under KRS 61.878(1)(l).

Mr. Trusty argues that the document, authored nearly eight years ago, has been cited repeatedly by the City as a primary reason for the City's final decision to initiate litigation in 1990 against the trustees of the Louisville Policemen's Retirement Fund.

Additionally, Mr. Trusty states that the City's claim that the document is privileged from disclosure under the attorney-client privilege and as attorney work-product is without merit. He argues that the privilege does not apply to attorneys representing an official in his official capacity and, even if the privilege were available, it had long ago been waived when the substance or significant part of the privileged matter had been disclosed to persons not within the stated privilege. Further, Mr. Trusty, citing OAG 88-25, states that the privilege, if it once existed, ceased when the litigation, which was related to the requested document, ended in April of 1995.

Subsequent to receipt of Mr. Trusty's letter of appeal, and as authorized by KRS 61.880(2), this office received a response to the appeal letter from Mr. Guagliardo. In his response, Mr. Guagliardo states in relevant part:

The operative facts are as follows: Marvin Hirn, an attorney, was paid by the City to investigate a matter for the Mayor. He provided a letter to the Mayor containing his recommendations and opinions about whether litigation should be commenced by the City.

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(A) The document -- whether from an attorney or from a non-attorney -- is clearly predecisional. Had it been prepared `in-house,' it would be exempt under subsection (1)(j). The fact that it was prepared by a consultant or attorney under contract does not alter the preliminary, predecisional characteristics of the matter. There is no evidence that the letter was adopted, made a part of, or incorporated into final action by the City. 96-ORD-20; OAG 85-96.

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(B) The document is also exempt under KRS 61.878(1)(l) as a privileged communication or work product of an attorney. KRE 503.

The payment to Mr. Hirn for his services with public funds does not alter the existence of the privilege. OAG 88-25, which Mr. Trusty cites (but misquotes), actually supports the City's position. OAG 88-25 nowhere suggests that a document involving the work product concept and the attorney-client relationship loses its protection `when litigation is completed or no longer contemplated.' OAG 88-25 simply stated that not every document involved in that appeal could possibly fall under the attorney-client privilege exception as had been asserted by the government attorney. (Emphasis in original. Footnote omitted.)

OAG 88-25 also refers to OAG 81-246 which confirmed the Attorney's General position that records privileged as `work-product' under discovery are exempt from disclosure under subsection [now](l). See also OAG 87-28; 81-291; 92-14.

Simply put, Mr. Trusty cites to no authority to support his position that `work-product' or communications between an attorney and his clients lose their privilege when litigation is completed or no longer contemplated. (Footnote omitted.)

Additionally, Mr. Trusty offers no support for his notion that the Mayor discussed the contents of the letter with persons `not within the privilege.' A mayor may certainly share a letter from a city's attorney with the city's law director, budget director and finance director as he ponders whether the city will institute legal proceedings. See KRE 503, especially section (b) and the subsections listed thereunder.

We are asked to determine whether the City violated the Open Records Act in denying

Mr. Trusty's request to inspect the requested document. For the reasons which follow, we conclude that the City acted consistently with the Open Records Act and, thus, properly denied Mr. Trusty's request.

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 KRS 422A.0503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRS 422A.0503 is a codification of Kentucky Rules of Evidence, KRE 503, which was cited by Mr. Guagliardo in his response. KRS 422A.0503(2) 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:

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

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

(c) 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;

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

(e) Among lawyers and their representatives representing the same client. This rule is subject to the provisions of KRS 422A.0502 (KRE 502).

The privilege thus consists of three elements: The relationship of attorney and client, a communication by or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the communication for which the protection is claimed. R. Lawson, Kentucky Evidence Law Handbook § 5.10 at 232, 233 (1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989); United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). Its purpose is to insure that client confidences to an attorney are protected, thereby encouraging clients to freely communicate with their attorneys. 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 letter prepared by Mr. Hirn, an attorney retained by the City to advise the Mayor, containing his recommendations and opinions as to whether the City should institute legal proceedings in a particular matter. Thus, the first two elements necessary to establish the attorney-client privilege are clearly present. First, the City was the client and Mr. Hirn its attorney within the relationship contemplated by the attorney-client privilege. Secondly, the letter prepared by the attorney was a communication made for the purpose of facilitating the rendition of professional legal advice sought by the client, the City.

This leads us to the third element, the confidentiality of the communication for which the privilege is being claimed. Mr. Trusty, with his letter of appeal, attached excerpts of testimony of the Mayor, regarding Mr. Hirn's letter, at the trial initiated by the City in 1990. The excerpts indicate the letter was styled “privileged and confidential attorney-client information.” At that trial, the City claimed attorney-client privilege as to the Hirn letter. Finally, the City has claimed attorneyclient privilege as to the letter in response to Mr. Trusty's instant open records request. Thus, the City has continually maintained the confidentiality of the letter from the time the letter was received from the attorney up to the present date. We conclude that the City has satisfied the third element of establishing the existence of the privilege in relation to the letter . Accordingly, the City's denial of Mr. Trusty's request to inspect the letter was proper and consistent with the Open Records Act.

We further conclude that the attorney-client privilege was not waived by the City. Mr. Trusty argues that the privilege was waived because the Mayor, on numerous occasions, had cited the Hirn letter as a primary reason the City had reached a decision to file suit and the substance or a significant part of the letter had been disclosed to persons not within the privilege, i. e., the City's law director, finance director, and budget director.

The fact that the Mayor may have stated that the letter was the basis for the City filing the lawsuit does not constitute a waiver of the privilege as the contents of the letter were not disclosed and remained confidential. The fact that the City relied upon the legal advice of Mr. Hirn and made a decision to file suit does not negate the attorney-client privilege. 94-ORD-88.

Moreover, the directors of law, finance, and budget of the City qualify as “representatives of the client,” as defined in KRS 422A.0503(1)(b), so that they may receive or act on legal advice or confidential information without waiving the privilege.

Mr. Trusty also asserts that the privilege ceased to exist when the litigation ended in April of 1995. While it is true that a number of the exceptions to the Open Records Act lose their exempt status upon the occurrence of a specific event, this has never been the rule with respect to attorney work product and documents shielded by the attorney-client privilege. 94-ORD-88; OAG 91-214. We conclude that the privilege did not cease when the litigation ended.

Because we believe that KRS 61.878(1)(l), operating in tandem with KRS 422A.0503, justifies the nondisclosure of the Hirn letter, we do not address other arguments raised in this appeal. It is the decision of this office that the City properly withheld the requested record.

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.






Distributed to:

Anthony R. Trusty

2219 Stephan Lane

Louisville, Kentucky 40214

Paul Guagliardo

Senior Attorney

City of Louisville

Department of Law

Room 200, City Hall

Louisville, Kentucky 40202-4215