NOT PUBLISHED 

94-ORD-99

August 17, 1994

IN RE: Stephen M. Wright/Kentucky Board of Medical Licensure

OPEN RECORDS DECISION

These consolidated appeals originated in a series of requests for records submitted by Mr. Stephen M. Wright, a certified public accountant, on behalf of his client, Dr. Cornelius D. Boyle, M.D., to the Kentucky Board of Medical Licensure. Dr. Boyle was the subject of disciplinary proceedings before the Board which culminated in the suspension of his medical license. In an apparent effort to challenge these proceedings, Mr. Wright and his client have, since 1990, attempted to secure unrestricted access to records in the custody of the Board which pertain to the case. It is

stipulated that the Board has afforded Mr. Wright and Dr. Boyle access to its records on more than one occasion. Nevertheless, Mr. Wright complains that he has not been permitted to inspect and copy all nonexempt public records in the Board's custody.

This Office has been inundated with copies of letters from Mr. Wright to the Board, from the Board to Mr. Wright, and from Mr. Wright and the Board to the Attorney General. At the risk of oversimplification, we have narrowed the issues raised in this voluminous correspondence to the following:

We do not consider Mr. Wright's allegations relative to the impropriety of the disciplinary proceedings against Dr. Boyle inasmuch as this is not the appropriate forum for resolution of these issues. Nor do we address Mr. Wright's request that depositions of certain Board employees be ordered insofar as this Office's role in the resolution of open records appeals is narrowly circumscribed, and does not include the authority to compel persons to submit to depositions. We analyze each of the issues properly raised in sequence, and conclude that the Board's actions relative to Mr. Wright's request were partially

consistent, and partially inconsistent with the Open Records Act.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

It is our understanding that this controversy arose in 1990 and has continued to the present. In the course of the dispute, an avalanche of correspondence has been exchanged, some, if not all, of which we have reviewed. Our inspection of these letters reveals that in the early stages of the controversy, the Board made numerous conciliatory gestures toward Mr. Wright and his client, permitting inspection of many of the records in its custody. The Board did not, however, comply with KRS 61.880(1) by issuing a written response to these early request within three business days in which it identified the records withheld and cited the exception or exceptions upon which it relied in partially denying their requests. This Office has consistently recognized that the failure to issue a written response constitutes a procedural violation of the Open Records Act. See, e.g., OAG 90-15; OAG 90-16; OAG 90-26; OAG 91-128; 93-ORD-142. To the extent that the Board failed to respond in writing, identifying the records withheld and stating the statutory basis upon which it relied, it violated the Act.

The procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. The Kentucky Board of Medical Licensure should bear this observation in mind in responding to future requests under the Act.

KRS 61.872(3)(a) and (b) provide:

In construing these provisions, this Office has recognized that a public agency cannot permit a requester to inspect records, but deny him copies of those records. OAG 89-27. "The right to copies of public records is thus correlative to the right to inspect those records." 94-ORD-47, p. 3; OAG 89-43; OAG 89-66.

Mr. Wright complains that the Board failed (or refused) to furnish him with copies of certain records which he was permitted to inspect, despite his request for same. These allegations are refuted by the Board in a series of letters and affidavits. We cannot resolve this swearing contest. The Board is required to permit Mr. Wright to copy any record he has been permitted to inspect, or to provide him with a copy. It cannot avoid this requirement simply because, upon reconsideration, it deems it inexpedient to furnish copies. If Mr. Wright can specifically identify records which the Board has previously made available to him for inspection, but not copying, he should be afforded an opportunity to copy them, or copies should be provided to him.

Mr. Wright next complains that the Board violated the Open Records Act by failing to promptly provide him with those copies he did receive. On at least one occasion, Mr. Wright alleges that some 50 days elapsed between the date of inspection and the date the records were received. The Board acknowledges that copies of records requested in mid-January were not sent to Mr. Wright until February, 1994. We are asked to determine if this constitutes undue delay.

"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200; OAG 92-35. Mr. Wright asserts that 50 days passed before the Board sent him copies of the records he requested. The Board concedes that nearly one month elapsed. We believe that a delay of this duration is inconsistent with the Open Records Act.

The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records for a period of several years, such time limitations are virtually impossible to meet. It is apparent that the task of reproducing voluminous documents might necessitate a reasonable extension

of the three day period of limitation. It is our opinion that the 30 to 50 days which elapsed between the date Mr. Wright inspected the records and requested copies, and the date those records were sent to him by the Board, represents an inordinate and unreasonable delay.

In an early opinion, this Office recognized:

OAG 77-151, at p. 3. Nevertheless, we have also recognized:

OAG 76-374, at p. 5. We believe that a determination of what is a "reasonable time" for inspection and copying turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request copies of their records to insure that those individuals are afforded timely access to the records.

Mr. Wright objects to the release of Board records to "state criminal prosecutors" before those records were disclosed to him. KRS 61.878(5) provides:

This provision has been interpreted to mean that even if records are exempt from the public generally, they should be made available to other public agencies for legitimate governmental purposes. OAG 77-666; OAG 79-475; OAG 79-608; OAG 85-94; OAG 91-22; OAG 91-86. Indeed, we have held that "regardless of the nature of the [record], . . . denial of the request of one public agency to inspect the public records of another public agency [is] improper and in violation of the Open Records Law if the request was made for legitimate governmental purposes." OAG 85-94, p. 3.

It is abundantly clear that the Kentucky Board of Medical Licensure and the Office of the County or Commonwealth Attorney are "public agencies" within the scope of the Act. It is equally clear that records in the custody of the Board relating to physician discipline may be useful to the County or Commonwealth Attorney in the performance of his or her prosecutorial function. The Open Records Act mandates an open exchange of public records and the sharing of information between public agencies. Therefore, the Board did not violate the Act in sharing otherwise exempt records, i.e., records which could properly be withheld from Mr. Wright and Dr. Boyle, with local prosecutors.

Mr. Wright's chief objection to the Board of Medical Licensure's handling of his numerous open records requests is that the Board has not afforded him unrestricted access to all of the records in its custody which relate to his client. He argues that since the proceedings against Dr. Boyle have been concluded, the exemptions for preliminary documents no longer apply. In addition, he argues that the Board has construed the

attorney-client privilege too broadly in denying him access to records generated by Board employees other than its General Counsel. We do not agree.

KRS 61.878(1)(h) and (i) exclude from the mandatory disclosure provisions of the Open Records Act:

These exemptions are intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within the agency. OAG 86-64, OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; OAG 90-97. The purpose underlying these exemptions is discussed at p. 4 of OAG 88-85, where this Office opined:

If, however, the predecisional documents are incorporated into final agency action, they are not exempt.

This dichotomy is best illustrated in City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the City police department were exempt from public disclosure as preliminary documents. At p. 659, the court reasoned:

See also, OAG 86-64 (holding that monthly and annual reports submitted to central state government by one of its agencies in the field can be withheld under KRS 61.878(1)(h) and (i) as long as the reports neither indicate final agency action nor involve the incorporation of a preliminary report into a final report of the agency); OAG 89-34 (holding that a draft report submitted by the U.S. EPA to Kentucky's Division of Air Quality is a preliminary document, and does not lose that character by having been submitted for review and written comment of the state agency); OAG 90-97 (holding that a public official's letter to the Parole Board, containing his opinion as to whether the Board should grant parole, is exempt from

inspection unless incorporated into or made a part of the Board's final decision on the matter).

In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection. Thus, in OAG 89-69 this Office held that a legal memorandum, which was originally preliminary in character, became a public record when it was incorporated into a notice of agency action. There, we observed:

OAG 89-69, at p. 3.

Although he does not specifically identify the records withheld under these exemptions, Mr. Wes Faulkner, General Counsel to the Board, asserts that "some of the records . . . describe[d] . . . fall within the exemption of KRS 61.878(1)(h) and (i) (preliminary drafts, interoffice memos, etc.) . . . ." We believe that Mr. Faulkner's nonspecificity is due in large part to the nature of Mr. Wright's request, and the number of documents implicated by it. The Board should henceforward make an effort to describe, in at least general terms, the documents withheld. The Board

should also reevaluate its position relative to its partial denial of Mr. Wright's request in light of the principles enunciated above, and make available for inspection and copying any records which forfeited their preliminary characterization when, or more precisely, if they were expressly incorporated into the Board's final action in the matter of disciplining Dr. Boyle. We are not persuaded, however, that all preliminary documents generated in the course of this case forfeited their status when the matter was finally concluded.

With respect to the Board's invocation of KRS 61.878(1)(k) and the attorney-client privilege, we reject Mr. Wright's argument that the Board has interpreted the privilege too broadly.

KRS 61.878(1)(k) 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 KRS 422A.0503 to exclude from public inspection otherwise public records protected by the attorney-client privilege.

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.

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. In seeking legal advice from General Counsel, the Board dealt with its attorney as would any private party seeking counsel. To insure full and frank communication, the same assurance of confidentiality was necessary. Clearly, the documents withheld were exchanged in the course of this professional relationship and related to the subject upon which legal advice was sought, thus satisfying the first and second parts of the three part test.

It is equally clear that confidentiality was expected in the handling of these documents, and that every attempt was made to insure that the information contained therein was protected from general disclosure. The Board has, since this controversy arose, asserted the attorney-client privilege with respect to these documents. It continues to do so to the present. In our view, the Board has affirmatively satisfied the third part of the test.

The sixth issue in this appeal centers on KRS 61.872(6), and the question of whether Mr. Wright's repeated requests placed an unreasonable burden on the Board and were intended to disrupt its essential functions. KRS 61.872(6) provides:

In determining whether a series of open records requests places an unreasonable burden on a public agency, or is intended to disrupt its essential functions, and thus warrants invocation of KRS 61.872(5), we must weigh two competing interests: that of the public in securing access to agency records, and that of any agency in effectively executing its public function. In OAG 77-151, at p. 3, we opined:

As noted above, we have also recognized that public agencies and agency employees "are the servants of the people . . . , but they are the servants of all the people and not only of persons who may make . . . unreasonable demands on their time." OAG 76-375, p. 4. In weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests either place an unreasonable burden on the agency or that they are intended to disrupt other essential functions of the agency.

From the information with which we have been provided, we cannot say that Mr. Wright's requests to inspect records amount to harassment or show an intent to disrupt the Board's essential functions. Mere invocation of the statute is not sufficient to meet this burden of proof. OAG 89-79; OAG 92-16. Having reviewed his requests, as well as his letter of appeal, we believe that Mr. Wright is convinced that the disciplinary proceedings against his client were improperly conducted, and that the volume of his requests is a function of the complexity of the records he has reviewed, rather than a malicious intent to harass the Board.

Nevertheless, it is our opinion that the Board has established that Mr. Wright's numerous, often duplicative, requests have placed an unreasonable burden on the agency. In each of his requests, Mr. Wright asked to inspect several categories of documents generated over a period of several years. To produce these records once entails some inconvenience to the agency; to produce them several times requires a level of "patience and long-suffering" that the legislature could not have intended. Although the Board

repeatedly demonstrated its willingness to cooperate with Mr. Wright in affording him access to the requested documents, the Board properly invoked KRS 61.872(6) at the point at which his requests had become unreasonable. We therefore conclude that the Board acted consistently with the Open Records Act when it relied on KRS 61.872(6) in putting Mr. Wright on notice that it would deny further requests for the same documents.

its policy by designating another individual to review the requests, or by bypassing this level of review.

As noted, the Open Records Act does not afford requesters unrestricted access to all public agency records. The General Assembly has carved out several exceptions to the rule of mandatory disclosure, and codified them at KRS 61.878(1)(a) through (k) (now (1)). We have expressed our views relative to Mr. Wright's assertions that the Board improperly relied on KRS 61.878(1)(h), (i), and (k) in denying his requests for certain records. Regardless of what designation those documents are given, e.g., "closed records," "exempt records," "nonpublic records," the Board is justified in withholding them.

With respect to Mr. Wright's concern about the destruction or concealment of documents, it should be noted that KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. There is no proof in the instant appeals that the remaining documents were concealed or destroyed for this or any other reason. Such evidence, if its exists, should be presented to the local prosecutorial authorities who may proceed to a determination of this matter. The Attorney General is not, however, empowered to render a decision on this question in an open records appeal.

Mr. Wright questions the Board's decision to electronically monitor his activities during the course of his inspection of records in the Board's offices. While this issue has rarely been raised, we believe that two sections of the Open Records Act are directly relevant. KRS 61.872(1) provides:

(Emphasis added.) In a similar vein, KRS 61.876(1) provides:

(Emphasis added.) Underlying each of these provisions is the recognition "that free and open examination of public records is in the public interest . . . ." KRS 61.871.

At page 3 of 93-ORD-39, we stated:

Continuing, we observed, "The Random House Dictionary defines the term 'suitable' as 'correct or appropriate for a particular purpose or occasion.' While a requester cannot expect the agency to provide facilities offering the enforced silence of a library, he may certainly expect that those facilities will afford him adequate opportunity to inspect the records without interruption, and without harassment." 93-ORD-39, p. 3.

It is clear that an agency may monitor inspection of its public records to protect them from damage and disorganization and prevent excessive disruption. KRS 61.876(1). The question thus presented is whether the videotaping of an individual, as he inspects records, is so disruptive that it precludes him from effective inspection. In our view, it does not. Compare, 93-ORD-39 (holding that agency representative's abusive conduct toward individual inspecting records created a hostile atmosphere which rendered facilities provided by agency unsuitable). In the present appeal, Mr. Wright and Dr. Boyle spent several hours over a period of several days inspecting the Board's records in its offices. Presumably, the Board elected to videotape their inspection, rather than personally overseeing it, to conserve manpower. Nothing in the statute prohibits them from employing this technique to monitor inspection. Of course, the tape itself becomes a public record, within the meaning of KRS 61.870(2), insofar as it is "prepared, owned, used, in the possession of or retained by a public agency."

As a final point of contention, Mr. Wright objects to the board's characterization of his requests as "blanket requests" which need not be honored. In support of its position, the Board cited 76-376, advising Mr. Wright that future requests "must specifically identify the documents desired." We must determine if the Board properly characterized Mr. Wright's requests as "blanket requests."

In OAG 88-53, p. 3, this Office cautioned against "a 'shot gun' approach or engaging in a sort of fishing expedition," noting that a request should be drafted with "reasonable particularity." See also, OAG 89-81, OAG 91-58. Thus, in a series of opinions, we have held that "[b]lanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-8; OAG 89-61; OAG 91-58. Elaborating on this position, in OAG 89-8, p. 2, we observed:

If a requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8.

In at least one of his letters to the Board, Mr. Wright couched his request in terms of "[a]ll correspondence, memos, drafts, documents, information, and other files . . . " relating to the proceedings against his client. Inasmuch as the Board honored this request, we cannot conclude that it was not drafted "with sufficient clarity to enable [it] to locate and make [the records] available." Nevertheless, in our view this is a close case. Mr. Wright should bear these observations in mind in formulating future requests for specific documents to which he has not heretofore been afforded access.

CONCLUSION

In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, "we assume a modicum of good faith from both parties to an open records appeal: From the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." 94-ORD-15, p. 6. Both the Kentucky Board of Medical Licensure and Mr. Wright should be guided by these principles in future open records exchanges.

The Kentucky Board of Medical Licensure and Mr. Wright may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/399

Distributed to:

Wes Faulkner, Esq.

Kentucky Board of Medical Licensure

310 Whittington Parkway, Suite 1B

Louisville, KY 40222

Mr. Stephen Wright

Certified Public Accountants

2719 Pulaski Highway

Edgewood, MD 21040