TO BE PUBLISHED
95-ORD-18
February 21, 1995
In re: Brian L. Cullinan/City of Louisville
OPEN RECORDS DECISION
This appeal originated in a request to inspect public records first submitted by Mr. Brian L. Cullinan to the City of Louisville Law Department on October 17, 1994. Mr. Cullinan requested access to:
All travel records, invoices, bills and expense records related to Ron Schwoeppe's attendance at the Second Annual Fire and Police Pension Funds Forum, which took place on September 25-28, 1994 in Marco Island, Florida.
Having apparently received no response to this letter, Mr. Cullinan resubmitted his request on October 26, 1994.
On behalf of his client, the City of Louisville, Mr. Donald L. Cox responded to Mr. Cullinan's request on October 26. Relying on KRS 61.878, Mr. Cox denied the request "because it does not appear that this information could be obtained under the Kentucky Rules of Civil Procedure." Mr. Cox explained that Mr. Schwoeppe represents the City in litigation involving Mr. Cullinan's father and Cullinan Associates, Inc. The disputed travel records relate to that as well as collateral litigation. In closing, Mr. Cox asserted:
In neither of these litigations could you, your father, or your father's company obtain the information in question and the information in question is otherwise exempt from disclosure as work product and attorney/client privilege.
On this basis, Mr. Cox refused to release the records.
In his letter of appeal to this office, Mr. Cullinan questions the City's invocation of the attorney/client privilege and work product doctrine. Additionally, Mr. Cullinan notes a number of procedural irregularities in the City's response.
In a letter to this office dated November 18, Mr. Cox elaborated on the City's position. He explained that the referenced litigation involves the City of Louisville Policemen's Retirement Fund and the management of that Fund. Continuing, he observed:
As part of their campaign against the City of Louisville, the Cullinans, their favored broker, Smith Barney, and certain members of the Fund sponsored a "seminar" in Florida to discuss the intricacies of the City of Louisville/Fund litigation.
When the City of Louisville received the agenda . . . , it decided to send an attorney to investigate and advise city officials regarding the statements which were being made by party litigants concerning the litigation in which they were involved. It is the actions of this attorney in Florida that the Cullinans now seek to investigate, using what is clearly open records discovery.
Mr. Cox argues that KRS 61.878(1), which prohibits a court from ordering the inspection by a party of records relating to civil litigation if those records would not be discoverable under the Rules of Civil Procedure, precludes access to the travel records at issue in this appeal. The Cullinans could not obtain "traveling information" about opposing counsel under the civil rules, Mr. Cox maintains, because the fact that a city attorney undertook an investigation of a party by attending a conference which that party also attended has no "possible bearing" on the pending litigation.
Moreover, Mr. Cox asserts, the disputed records are protected by the attorney/client privilege and the work product doctrine. He reasons:
It is simply inappropriate and contrary to base [sic] tenets of work product to permit discovery of information concerning the nature and extent of an attorney's investigation of a case. The attorney's investigation includes the time spent, the steps undertaken and all the matters relating to the investigation. These matters are clearly matters of work product and clearly are not discoverable.
In addition, the files of the City of Louisville contain information relating to the attorney's actions which involve matters of attorney/client privilege. In the file the attorney communicated information concerning his activities in Florida in investigating the Defendants.
In Mr. Cox's view, these matters are part and parcel of the ongoing litigation, and are thus privileged.
We do not agree. The question in this appeal presents a novel twist on a perennial subject: the relationship between the Open Records Act and civil discovery, and in particular, the scope of privilege within the context of the Act. At page 3 of OAG 89-65, we attempted to explain this relationship. There we observed:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.
The Open Records Act was subsequently amended. KRS 61.878(1) now provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery[.]
(Emphasis added.) This means that should an agency deny a request, submitted by a party to a civil action, for properly excludable public records which are related to that action, and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/party, though it might otherwise do so in its discretion. It does not mean that an agency can withhold public records by invoking a new exclusion to public inspection based on the argument that the requested records have no "possible bearing" on the civil action to which they relate and are thus not discoverable under the civil rules because they lack relevance. CR 26.02(1). If, in fact, they have no bearing on the action, the records do not fall within the language of the amendment since they do not "pertain [] to [the] civil litigation" to which the requester is a party. Taken to its logical conclusion, the City argument would preclude a litigant from inspecting any and all records unrelated to litigation with the City because they have no "possible bearing" on that litigation. It does not alter our interpretation of the Act, this office having long recognized that records which are privileged are not subject to inspection pursuant to KRS 61.878(1)(l) and related authorities. Nor does it alter our view that an agency's duty under the Act is not suspended in the presence of litigation.
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(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 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 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.
Mr. Cullinan requested access to records relating to expenditures associated with a public employee's travel to, and attendance at, a seminar on a topic which pertained to pending litigation. This office has consistently held that "[a]mounts paid from public coffers are . . . uniquely of public concern." OAG 90-30, p. 3. With specific reference to the type of expenditure at issue in this appeal, we have recognized that "travel expense information [of public employees] is subject to public scrutiny[.]" OAG 90-19, p. 1. In our view, travel records, invoices, bills, and expense records of a public employee are generally not shielded from disclosure by the attorney/client privilege, and are therefore subject to the principles enunciated in these opinions.
No doubt the City is a client and Mr. Schwoeppe its attorney within the relationship contemplated by the privilege. The City directed its legal representative to attend, and report back on, a seminar which dealt with a topic of immediate interest and concern to the City. Nevertheless, the City fails to demonstrate two of the fundamental prerequisites to assertion of the attorney/client privilege: a communication relating to the subject matter upon which professional advice is sought and confidentiality both at the time of communication and maintained since. The documents at issue in this appeal consist of travel expense records, and do not, at least in this instance, involve facilitating the rendition of legal services or the dispensation of legal opinion or advice.
In OAG 92-14, this office engaged in a lengthy analysis of the scope of the attorney/client privilege in the context of fiscal arrangements. It is instructive to quote a portion of that opinion:
The Attorney General's office has . . . recognized that an agency cannot withhold every document which relates to a particular matter under KRS 61.878(1)(j) [now (l)] and the attorney client privilege simply because it is represented by an attorney, in that matter. OAG 88-25. Only those documents which are actually generated in the course of the attorney client relationship, and therefore fall squarely within the privilege, may be withheld from public inspection pursuant to the Kentucky Rules of Civil Procedure, CR 26.02(1), KRS 447.154 and KRS 61.878(1)[(l)].
In OAG 82-169, this office addressed the question whether the Jefferson County Public Schools could withhold, inter alia, Board records of payments to its attorney, and bills and statements submitted to the Board by its attorney, under KRS 61.878(1)[(l)] and the attorney client privilege. There we concluded that although generally the contracts, vouchers, and other business records of a public agency are open to public inspection under the Open Records Act, because the Board was engaged in litigation and would be disadvantaged in that law suit by the release of the requested records, they could be withheld pursuant to KRS 61.878(1)[(h)] until the litigation was concluded. This office implicitly rejected the argument that such records were protected by the attorney client privilege and KRS 61.878(1)[(l)]. We affirmed this position in OAG 85-91, where we held that a public agency's denial of a request to inspect the contracts, retainer agreements, and other documents pertaining to the relationship between the agency and its attorneys was improper. In that opinion we expressly stated that failure to disclose records of payments, other than as contained in regular income and accounting records, was improper. OAG 85-91, at p. 3. . . .
The Kentucky Supreme Court has recognized that communications relating to the fiscal arrangements between an attorney and his client do not fall within the attorney client privilege. In Kentucky-Virginia Stages, Inc., v. Tackett, Ky., 182 S.W.2d 226 (1944), the court held that the terms and scope of employment are not communications made to an attorney in his professional character by the client. An attorney does not act as a legal adviser when communicating with the client about his fee, but instead acts in his own interest, representing himself exclusively. Tackett, supra at 230. This reasoning was adopted in United States v. Haddad, 527 F.2d 537 (6th Cir. 1975), wherein the Sixth Circuit held that amounts paid or owed to an attorney by his client are generally not within the attorney client privilege.
Although it does not appear that either the Sixth Circuit or a Kentucky court has had occasion to address the question whether the underlying bills are privileged, in In Matter of Wash, 623 F.2d 489 (7th Cir. 1980), the Seventh Circuit held that because matters involving the receipt of fees from a client and who paid the fees are not privileged, a grand jury was entitled to review the ledgers, bills, time records, and retainer agreements prepared by an attorney.
OAG 92-14, pp. 4, 5. However, we also recognized that because such records might disclose substantive matters pertaining to the rendition of legal services, an agency need only disclose the general nature of services rendered.
These concerns are not implicated in the present appeal. Simply stated, travel expense records do not, in general, disclose communications by the client or attorney in relation to the specific matter for which the attorney was retained. And where, as here, there has been little or no effort to insure confidentiality in the handling of the records, and to protect the information contained therein from general disclosure, assertion of the privilege fails the third and final part of the three-part test. Although Mr. Cox baldly asserts that "[t]hese matters are clearly part of the litigation which is ongoing and are clearly subject to the attorney/client privilege . . . ," he offers no evidence to support the contention that the City made any effort to insure the confidentiality of the records. Indeed, Mr. Cullinan attaches a copy of an October 24, 1994, letter from Mr. Frank W. Burke, Sr., another attorney representing the City and its Department of Law, to Mr. Irvine Laidlaw, President of the Institute for International Research, Inc., sponsor of the seminar, demanding reimbursement of Mr. Schwoeppe's travel expenses, following his premature departure, and specifically enumerating those expenses, including $595 seminar tuition, $125.70 and $68.67 hotel bills, and $501 and $61.19 airline ticket and rental car expenses. Disclosure of these figures to a third party is inconsistent with the privilege and suggests that this information was not held in confidence. Mr. Cullinan merely seeks documentary evidence to confirm these figures.
We also reject Mr. Cox's assertion that travel expense records are protected from disclosure as attorney work
product. This office has recognized that the work product doctrine protects from discovery, and access under the Open Records Act, materials prepared or collected by an attorney in the course of preparation for litigation. CR 26.02(3); KRS 447.154; KRS 61.878(1)(l). Thus, at page 3 of OAG 81-291, we observed:
The "work product" of attorneys is not discoverable under the court rules except in unusual cases which depend upon the nature of the document, the extent to which it may directly or indirectly reveal the attorney's mental processes, the likely reliability of its reflection on witness statements, the degree of danger that it will convert the attorney from advocate to witness, and the degree of availability of the information from other sources. United States v. Amerada Hess Corp., 619 F.2d 980, 987 (1980).
The requested records are not in the nature of attorney work product. Although they may be peripherally related to pending litigation, they cannot be characterized as mental impressions, conclusions, opinions, or legal theories of an attorney concerning that litigation. [1] It cannot be persuasively argued that disclosure of travel expense records relating to Mr. Schwoeppe's attendance at the seminar will reveal legal theory or litigation strategy.
In an early opinion, the Attorney General observed:
Although there is litigation in the background of the open records request under review, the requester . . . stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.
OAG 82-169, p. 2. The identity of the requester notwithstanding, both Mr. Cullinan and the public generally have a cognizable interest in amounts paid from public coffers, and in particular, the travel expense records of a public employee.
We are not persuaded by Mr. Cox's argument that because the City's files "contain information relating to the attorney's actions which involve matters of attorney/client privilege [including] . . . information concerning his activities in Florida in investigating the Defendants," the City may withhold every record in those files. Mr. Cullinan did not request unrestricted access to the City's files relative to Mr. Schwoeppe's attendance at the seminar. He requested only those records which reflect travel expenses associated with his attendance. As we have observed, we do not believe that such records are generally privileged from disclosure. In the unlikely event that the records contain notations which disclose substantive legal matters pertaining to the pending litigation, the City is obligated to separate the excepted material and make the nonexcepted material available for examination. KRS 61.878(4). If no substantive legal matters are disclosed, the City must release the travel expense records in their entirety.
Finally, we note a number of procedural irregularities in the City's response. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
The City's response was deficient to the extent that its denial of Mr. Cullinan's October 17 request was issued well beyond the three working day deadline established at KRS 61.880(1). It does not avail the City to complain that Mr. Cullinan submitted his request to the wrong person. KRS 61.872(4) compels a person other than the custodian to whom a request for records is directed to notify the requester and furnish the name and location of the custodian within this three day period. Additionally, although Mr. Cox relied on the attorney/client privilege and the work product doctrine, he did not cite KRS 61.878(1)(l), by which these privileges are incorporated into the Open Records Act. We urge the City to review KRS 61.880(1) to insure that future responses conform to the Act.
The City of Louisville 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
res/1441
Distributed to:
Hon. Donald L. Cox
500 Meidinger Tower
Louisville, KY 40202
Hon. Brian L. Cullinan
One Corporate Plaza The 22nd Floor
220 West Main Street
Louisville, KY 40202
[1]We leave for another day the question of whether, under a different set of facts, release of travel expense records might implicate the work product doctrine by disclosing, for example, litigation strategy.