NOT TO BE PUBLISHED
95-ORD-62
April 19, 1995
In re: The Eastern Progress/Eastern Kentucky University
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Mr. Chad Williamson, a staff writer for The Eastern Progress, to Eastern Kentucky University. On February 6, 1995, Mr. Williamson requested access to:
[A]ll records concerning James Darrell Gay, former assistant area coordinator to Keene, O'Donnell and Mattox halls . . . [including but not limited to]: 1. Any commendations or citations received[;] 2. Any complaints filed against Gay[;] 3. Any communication concerning employment or termination of service to the University.
In a response dated February 9, 1995, Dr. Charles D. Whitlock advised Mr. Williamson that the University would release to him all of the records he had requested with the exception of complaints filed against Mr. Gay. He explained:
Mr. Gay's records, including any complaints which might have been filed against him, are in the possession of Mr. Giles Black, University Counsel. These materials are integral to current litigation which involves the University. Consequently, Mr. Black has advised me that he considers these materials to be protected by attorney-client privilege until the conclusion of the litigation.
Dr. Whitlock did not include a statement of the specific exception authorizing the withholding of the complaint as required by KRS 61.880(1).
The question presented in this appeal is whether Eastern Kentucky University violated the Open Records Act in its response to Mr. Williamson's request. For the reasons set forth below, and upon the authorities cited, we conclude that although Eastern substantially complied with the Act by releasing all records relating to Mr. Gay which Mr. Williamson requested, it violated the Act by denying his request for complaints filed against Mr. Gay.
We begin by noting that the University's response to Mr. Williamson was technically deficient insofar as Dr. Whitlock failed to cite a specific exception to public inspection authorizing the withholding of the complaints. 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.
KRS 61.878(1)(l) excludes from the application of the Open Records Act, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This office has long recognized that KRS 61.878(1)(l) operates in tandem with KRS 422A.0503 to authorize the withholding of public records protected by the attorney-client privilege. Having failed to cite either provision in its February 6 response, the University committed a procedural violation of the Act. [1]
KRS 422A.0503(2) establishes the general rule of attorney-client 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[.]
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.
The Attorney General has recognized that a public agency cannot withhold every document which relates to a particular matter under KRS 61.878(1)(l) and the attorney-client privilege simply because it is represented by an attorney in that matter. OAG 88-25; OAG 91-109. We have consistently held that only those records which are actually generated in the course of the attorney-client relationship, and therefore fall squarely within the privilege, may be withheld from inspection. If a communication is made in confidence, while the attorney is acting in his legal capacity, and relates to the purpose for which legal representation is sought by the client, it is privileged. In our view, the disputed complaint does not fall within the parameters of the attorney-client privilege.
It is clear that the University can be a "client" and University counsel can function as "attorney" within the relationship contemplated by the privilege. Our analysis does not, however, end there. The University must also establish that the "communication" relates to the subject matter upon which professional advice was sought, and that confidentiality was expected at the time the "communication" was made and that it has been maintained since. The University fails to establish these fundamental prerequisites to assertion of the attorney-client privilege.
The documents at issue in this appeal are complaints filed against a former University employee, Mr. James Darrell Gay, who is a co-defendant in a federal lawsuit filed by a former University student. It cannot be persuasively argued that the complaint was confidentially made and that its confidentiality has been maintained since. Although it is apparently relevant to the pending federal action against Mr. Gay, we concur with Mr. Williamson in his view that the complaint is a part of his personnel file, and is subject to the rules of disclosure governing personnel files generally. The University has adduced no evidence in support of its position that confidentiality was expected in the handling of the complaints, and that it exercised reasonable caution in insuring that the information they contained was protected from general disclosure. The University having failed to establish this prerequisite to assertion of the privilege, we conclude that it improperly relied on KRS 422A.0503 and KRS 61.878(1)(l) in denying Mr. Williamson's request.
It is well-settled under the Open Records Act that the complaint which initiates an investigation into employee misconduct by a public agency, the final action taken by the agency relative to the complaint, and any preliminary investigative reports or recommendations adopted by the agency as part of its final action, are public records which must be made available for inspection, unless the agency can prove that those records fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l). In analyzing the propriety of release of records relating to public employee discipline under KRS 61.878(1)(i) and (j), [2] the preliminary documents exceptions, the courts and this office have consistently recognized that "[d]isciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know." OAG 88-25, p. 3; see also, City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1983); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 342 (1992); OAG 81-127; OAG 81-291; OAG 83-41; OAG 84-315; OAG 85-126; OAG 85-136; OAG 89-13; OAG 89-73; OAG 89-74; OAG 91-33; OAG 91-45; OAG 91-62; OAG 91-81; OAG 91-90; OAG 92-34; 94-ORD-27. In a seminal opinion addressing the applicability of these exceptions to such records, the Kentucky Court of Appeals observed, "The public upon request has a right to know what complaints have been made [against a public agency employee] and the final action taken thereupon." City of Louisville, supra at 660. Mr. Williamson asserts, and the University does not dispute, that "[a]ll disciplinary action on the part of the University has been completed[.] [3] Unless some other exception to public inspection applies, the University is obligated to disclose records reflecting final agency action, the complaints which initially spawned the action, and any investigative materials which were adopted by it as part of its final action.
In general, KRS 61.878(1)(a) does not authorize nondisclosure of complaints of employee misconduct as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment . . . this office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee.
OAG 91-41, p. 5. The University having failed to adduce any evidence to substantiate a claim that release of the records would constitute a clearly unwarranted invasion of personal privacy in the instant appeal, we are foreclosed from conducting a case specific analysis, and therefore conclude that disclosure of the records in this case would not constitute an unwarranted invasion of personal privacy.
As noted, we do not believe that the disputed complaints are shielded from disclosure by the attorney-client privilege insofar as there has been no proof presented that confidentiality was expected at the time the complaints were made, and that it has been maintained since. Nor do we believe that they are exempt as preliminary documents, the University having apparently concluded its disciplinary action against Mr. Gay. Finally, we do not believe that the University has properly asserted a claim that release of the complaints would constitute a clearly unwarranted invasion of personal privacy. We therefore conclude that the University improperly withheld the complaint, and should immediately make arrangements for Mr. Williamson to inspect them.
Eastern Kentucky University may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
par/203
Distributed to:
Dr. Charles D. Whitlock
Executive Assistant to
the President's Office
Coates Box 1-A
EKU Campus
Richmond, KY 40475
Mr. Chad Williamson
Managing Editor
The Eastern Progress
117 Donovan Annex
Eastern Kentucky University
Richmond, KY 40475
[1] This Office has also recognized that since records which are privileged or which are the work product of an attorney in the course of advising a client are not discoverable under CR 26.02(1) and (3), they are exempt from public inspection under KRS 447.154 and KRS 61.878(1)(k). KRS 447.154 provides, in part, that no act of the General Assembly shall be construed to limit the right of the Court of Justice to promulgate rules. See, e.g. OAG 81-246; OAG 82-291; OAG 82-169; OAG 82-295; OAG 85-20; OAG 87-28; OAG 88-25; OAG 88-32; OAG 88-59; OAG 91-53; OAG 91-108; and OAG 92-14.
[2] KRS 61.878(1)(i) and (j) exclude from disclosure:(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
[3] The University was notified on February 16, 1995, that Mr. Williamson had submitted an open records appeal to this office, and was provided with a copy of the appeal. The University did not respond to the appeal. Nor did it attempt to refute any of the allegations contained in the appeal.