August 15, 1997

In re: W. E. Quisenberry, Jr./Natural Resources and

Environmental Protection Cabinet

Open Records Decision

This is an appeal from the Natural Resources and Environmental Protection Cabinet's response to W. E. Quisenberry, Jr.'s June 30, 1997, request for a copy of an opinion prepared by the Cabinet's Office of Legal Services. Relying on KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the Cabinet denied Mr. Quisenberry's request, arguing that "the legal opinion . . . constitutes a confidential communication between attorney and client made for the purpose of facilitating the rendition of professional legal services to the client." The question presented in this appeal is whether the Cabinet properly relied on the cited provisions to deny Mr. Quisenberry access to the legal opinion. For the reasons which follow, we affirm the Cabinet's denial of the request.

KRS 61.878(1)(l) authorizes public agencies to withhold "public 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 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:

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 [.]

Thus, the privilege 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, 3d ed 1993), citing United States v Schwimmer, 892 F2d 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. The term "client" is defined to include "a person, including a public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer. . . ." KRE 503(a)(1). 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 Evidence Law Handbook § 5.10.

Contrary to Mr. Quisenberry's belief, it is clear that a public agency can be a "client" and agency lawyers can function as "attorneys" within the relationship contemplated by the privilege. This seems to be just such a case. On October 25, 1997, Mark Thompson, director of the Cabinet's Department for Surface Mining Reclamation and Enforcement, Division of Field Services, requested a legal opinion on the issue of permanent impoundment in anticipation of a bond release hearing requested by Mr. Quisenberry on behalf of his clients. In response, Iris Skidmore, Manager of the Surface Mining Legal Branch, authored a memorandum in which she offered legal analysis and advice. The Department for Surface Mining Reclamation and Enforcement dealt with its attorneys as would any private party seeking counsel to protect its interests, necessitating the same assurances of confidentiality.

Clearly, Ms. Skidmore's memorandum was prepared by the Department's attorney as part of a professional relationship in order to provide the Department with advice on the legal ramifications of the issue presented, thus satisfying the first and second parts of the three part test. It is equally clear that the Department has attempted to insure that the analysis contained in the legal opinion was shielded from disclosure. The notation "Internal Memorandum" appears on the first page of the opinion. While this office has held that such a notation is not controlling in an open records dispute, we have also recognized that the notation will be respected when it is consistent with one or more of the exceptions to public disclosure. OAG 90-13; compare OAG 79-413. The Department sought to limit disclosure to the requester, Mr. Thompson, and the Department's commissioner, Carl Campbell. Moreover, the Department has made continuing efforts to insure its confidentiality. In releasing the record to this office for examination under KRS 61.880(2)(c), the Department confirmed that it would not be disclosed to other parties. In our view, the Department has affirmatively established confidentiality, the evidence demonstrating that every effort was made to protect the legal opinion within the agency from the date it was prepared to the present. 94-ORD-88.

We are not persuaded by Mr. Quisenberry's argument that the record lost its exempt status when, and if, the Department incorporated it into its final decision in this matter. This office has previously recognized that although a number of the exceptions to the Open Records Act are forfeited "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]." OAG 91-214. It is our opinion that reliance on legal advice is not synonymous with "incorporation" as that term is defined in the long line of cases interpreting KRS 61.878(1)(j). Simply stated, reliance on legal advice does not negate the attorney-client privilege.

We believe that KRS 61.878(1)(l), operating in tandem with KRE 503, justifies the nondisclosure of the disputed record. It is the opinion of this office that the Cabinet properly withheld the legal opinion.

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

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

W. E. Quisenberry, Jr.

Quisenberry and Quisenberry

P. O. Box 261

Calhoun KY 42327

Ronald P. Mills

Office of Legal Services

Natural Resources and

Environmental Protection Cabinet

Fifth Floor, Capital Plaza Tower

Frankfort KY 40601