NOT PUBLISHED 

94-ORD-88

July 19, 1994

IN RE: Brian L. Cullinan/City of Louisville

OPEN RECORDS DECISION

Mr. Brian L. Cullinan challenges the City of Louis- ville's denial of Mr. Roy Cullinan's April 20, 1994, request for a copy of "the legal opinion issued . . . on behalf of the City of Louisville, Department of Law . . . which stated that the City of Louisville was not required to release the $175,483 actuarial contribution to the Louisville Policemen's Retirement Fund . . . ." On April 22, 1994, Mr. David Leightty, Senior Attorney for the City's Department of Law, denied Mr. Cullinan's request, advising him that the document he sought "is at the heart of current litigation over the appropriation in question and is therefore exempt under the provisions of KRS 61.878(1)." In addition, Mr. Leightty relied on KRS 61.878(1)(i), arguing that the record is excluded from public inspection "as a preliminary opinion issued in the attorney-client relationship."

In his letter of appeal to this Office, Mr. Cullinan rejects this position. Citing 94-ORD-19, he maintains that KRS 61.878(1), which prohibits courts from authorizing the inspec- tion "by any party" of materials pertaining to civil litigation beyond that which is provided by the rules of procedure govern- ing pretrial discovery, is inapplicable in the present appeal because neither he nor Roy Cullinan are parties to the litiga- tion identified in Mr. Leightty's denial.

In response to Mr. Leightty's argument that the memorandum is a "preliminary opinion issued in the attorney- client relationship," Mr. Cullinan asserts that the document forfeited its preliminary status when it was incorporated into the City's final action in this matter. He refers to an affi- davit of Mr. Earl M. Unger, Executive Administrator for the City's Department of Finance and Budget, which he located in

the court records, and which indicates that "this legal opinion was the basis of the City's decision to withhold the actuarial contribution in question." To facilitate our review, Mr. Cullinan provided this Office with a copy of Mr. Unger's affidavit.

In a follow-up letter dated May 12, 1994, Mr. Leightty recapitulates his earlier arguments, emphasizing that the record in question "is the memorandum of an attorney acting in his professional capacity at the request of the client, render- ing legal advice." Relying on KRS 61.878(1)(k), which incorpo- rates the attorney client privilege codified at KRS 422A.0503 and CR 26.02, in addition to KRS 61.878(1)(i), he notes that "[t]he consequences of requiring disclosure of attorney-client memoranda would be disastrous to the ability of counsel for public agencies to function."

Elaborating on his argument that the memorandum is a preliminary document, excluded from public inspection by operation of KRS 61.878(1)(i), Mr. Leightty indicates that "[a]t no time has [the] legal advice memorandum been 'incorpo- rated' into any final decision." Citing a line of federal authorities, he maintains that "[r]eliance upon legal advice does not erase the attorney-client privilege." Again, he asserts:

Mr. Leightty urges this Office to issue a decision consistent with these views.

In yet another letter to this Office, Mr. Cullinan responds to these arguments. He asserts that pursuant to KRE 101 of the Kentucky Rules of Evidence, the attorney-client privilege applies only to proceedings in the courts. Accord- ingly, it has no bearing on the disputed record. Mr. Cullinan observes:

Challenging Mr. Leightty's reliance on KRS 61.878(1)(i), and cases interpreting it, Mr. Cullinan cites 94-ORD-38 for the proposition that memoranda incorporated into final agency action must be released. He reiterates that the City's Finance Department adopted the Department of Law's recommendation "as its basis for withholding moneys previously appropriated." Mr. Cullinan attacks the City remaining argument, which is premised on KRS 61.878(1), characterizing the City's accusation that he is "acting in concert with other parties," and therefore should be treated as a party to the present litigation within the meaning of that provision, as "ridiculous."

In rebuttal, Mr. Leightty argues that the attorney- client privilege applies in all situations, including but not limited to proceedings in court, and derives from statute, KRS 422A.0503, Civil Rule of Procedure, CR 26.02, the Rules of Professional Responsibility, Rule 1.6, and the common law. He again distinguishes prior case law, noting that reliance on legal advice is not synonymous with incorporation into final agency action. "If," he observes, "mere reliance on legal advice were deemed to be an incorporation of the advise into final action, then the attorney-client privilege would be meaningless, for it is to be expected that attorney advice will normally be followed or relied upon." Additionally, he notes that no where does Mr. Cullinan deny the facts connecting him with the litigation which sprang from the disputed memorandum and the City's subsequent actions. Mr. Leightty therefore concludes that the City's justifiably relied on KRS 61.878(1)(i) and (k), as well as KRS 61.878(1), in denying Mr. Cullinan's request.

We are asked to determine if the City of Louisville violated the Open Records Law in denying Mr. Cullinan's request. For the reasons set forth below, we conclude that the City properly denied the request.

KRS 61.878(1)(k) authorizes public agencies to with- hold "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 KRS 422A.0503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRS 422A.0503(2) establishes the general rule of privilege:

The privilege thus consists of three elements: The relation- ship 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 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 objec- tives." Kentucky Evidence Law Handbook, 5.10 at 232.

Contrary to Mr. Cullinan's apparent belief, it is clear that an 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. The City's Department of Finance requested a legal opinion from the

Department of Law on an issue pertaining to certain financial obligations. In response, Assistant Director of Law, Mr. J. David Morris, authored a memorandum in which he offered legal analysis and advice. The City dealt with its attorneys as would any private party seeking counsel to protect its inter- ests. This necessitated the same assurance of confidentiality so that it would not be deterred from full and frank communica- tions with its legal advisers. Clearly, the document was prepared by the City's attorney as part of a professional relationship in order to provide the City with advice on the legal ramifications of its actions, thus satisfying the first and second parts of the three part test. Our analysis does not, of course, end here. The City must also establish the third prerequisite to assertion of the privilege: Confiden- tiality both at the time of the communication and maintained since.

The burden is on the City to demonstrate that confi- dentiality was expected in the handling of the memorandum, and that it attempted to insure that the information contained therein was protected from general disclosure. We have examined the disputed memorandum under authority of KRS 61.880(2) and find that from the date that it was originally generated to the present, the City has exercised considerable care in the handling of the record. It is significant that the notation, "Confidential Memorandum," appears on its first page. The City thus sought to limit disclosure to the recipient, Mr. Unger, and the City's Director of Law, Christina Heavrin. Moreover, the City has made continuing efforts to insure its confidentiality. The memorandum has apparently been the subject of a courtroom battle, the City having resisted the opposing parties' attempts to compel production by invoking the attorney-client privilege. Indeed, in releasing the record to this Office for examination under KRS 61.880(2), the City sought to insure "strict confidence." In our view, the City

has affirmatively established confidentiality, the evidence demonstrating that every effort was made to protect the memorandum within the agency from the date it was prepared to the present.

We are not persuaded by Mr. Cullinan's argument that the record lost its exempt status when, and if, the City incorporated it into its final decision relative to this matter. This Office has previously recognized that although a number of the exceptions to the Open Records Law 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. We concur with the City in its view 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)(i). Simply stated, reliance on legal advice does not negate the attorney-client privilege.

Nor are we persuaded that 94-ORD-38 is dispositive. In that decision, we dealt with a draft report prepared by the Justice Cabinet, characterizing it as a preliminary document exempt from public inspection pursuant to KRS 61.878(1)(h). Although we reaffirmed our earlier decisions relative to KRS 61.878(1)(i) and predecisional documents incorporated by a public agency into final agency action, 94-ORD-38 did not turn on these principles. As noted, we do not believe that that line of authority is relevant here. In our view, the attorney- client privilege is not abrogated by the agency's reliance on the advice shielded by the privilege.

Because we believe that KRS 61.878(1)(k), operating in tandem with KRS 422A.0503 and CR 26.02(1), justifies the non- disclosure of the disputed memorandum, we do not address the applicability of KRS 61.878(1) and the other authorities cited by the City of Louisville. It is the opinion of this Office that the City properly withheld the memorandum.

Mr. Cullinan may challenge this decision by initiating action in the appropriate circuit court. 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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

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Distributed to:

Hon. David Leightty

Senior Attorney

City of Louisville

Department of Law

Room 200, City Hall

Louisville, KY 40202-2771

Hon. Brian L. Cullinan

Attorney At Law

One Corporate Plaza

The 22nd Floor

220 W. Main Street

Louisville, KY 40202