NOT TO BE PUBLISHED

96-ORD-40

February 20, 1996

In re: James F. Thompson/Cabinet for Human Resources

OPEN RECORDS DECISION

This matter is before the Attorney General on appeal from the Cabinet for Human Resources's partial denial of Mr. James F. Thompson's open records request to inspect documents pertaining to his request for payment of compensatory hours worked.

On September 7, 1995, Mr. Thompson submitted a written request to inspect the following documents:

Any & all documents, correspondence, reports & notes relating to the investigation and/or review of the accumulation and denial of credit and/or payment of compensatory time worked by James F. Thompson Department for Employment Services during 1991, 1992, 1993, & 1994. This shall include all correspondence within the Office of the Secretary, the Office of the General Counsel, including Ms. Cindy Banks & Mr. Terry Morrison & the Office of Personnel & Budget relating to the compensatory time worked by Mr. Thompson. This shall also include correspondence to & from the DES regarding subject matter. I wish to inspect the documents & copy as appropriate & necessary.

On September 11, 1995, Ms. D. T. Maynard, Executive Director, Office of Personnel and Budget, responded to Mr. Thompson's request on behalf of the Cabinet. In her response, Ms. Maynard stated, in relevant part:

The file of the Cabinet for Human Resources will be made available to you for your inspection. Access to any communication between the Office of the Counsel and the Office of Personnel and Budget or among counsel within the Office of the Counsel and transcripts of interviews conducted by the Office of the Counsel relating to the review (other than of the interview with you) is denied pursuant to KRS 61.878(1)(l) in that this information consists of the work product of counsel or attorney-client communications which are privileged. This privilege is recognized by the Kentucky General Assembly in the enactment of KRS 422a.0503 [sic] and is confidential pursuant to an act of the General Assembly. See also 93 ORD 139. In addition, access to preliminary drafts of correspondence will be denied you pursuant to KRS 61.878(1)(i). This material would also constitute preliminary recommendations which would not be subject to disclosure pursuant to KRS 61.878 (1)(j).

In his letter of appeal, Mr. Thompson states the Cabinet improperly denied him access to records relating to him in violation of KRS 18A.020(4) of the State Personnel Law and KRS 61.878(3) and 61.884 of the Open Records Act, which provide that a state employee has the right to inspect and copy any record including preliminary and other supporting documentation that relates to him or in which he is mentioned by name. In addition, Mr. Thompson argues that the Cabinet cannot withhold the records on the basis that they are preliminary in nature after enforcement action is complete or a decision is made to take no action. In further support of this position, Mr. Thompson cites OAG 85-59 as authority that “written instructions relative to employee conduct are not intra-office memorandum and preliminary recommendations excluded from the application of the Open Records Law . . . .”

Subsequent to receipt of Mr. Thompson's letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. John H. Walker, Assistant Counsel, Office of the Counsel, Cabinet for Human Resources, provided this office with a response to the issues raised in the appeal. In his response, Mr. Walker stated that it is the position of the Cabinet that communications between and among counsel for the Cabinet and the Office of General Counsel relating to the legal position of the Cabinet are confidential communications among lawyers representing the same client, citing 93-ORD-139.

Mr. Walker further stated in his response that Mr. Thompson's request sought to inspect copies of legal opinions issued by the Office of the Counsel to the Office of Personnel and Budget within the Cabinet for Human Resources relating to his request for credit for compensatory time. Mr. Walker states it is the Cabinet's position that these legal opinions constitute legal advice between attorney and client relating to the Cabinet's position on Mr. Thompson's request and is privileged and not subject to disclosure under KRS 422A.0503, which codified the attorney-client privilege and, therefore, not accessible to him pursuant to KRS 61.878(1)(l) as documents made confidential by an act of the General Assembly.

Mr. Walker further explained in his response that additional material withheld from Mr. Thompson consisted of drafts of correspondence prepared by the Office of Personnel and Budget and submitted to the Office of the Counsel for review, but which were not sent to

Mr. Thompson and, thus, were not accessible to him pursuant to KRS 61.878(1)(i).

Mr. Thompson submitted a response to Mr. Walker's letter, in which he states that he did not request copies of legal opinions issued by Office of Counsel. Instead, he contends that he requested “information that pertained specifically to an investigation initiated by the Secretary's Office relating to my compensatory time worked.”

Mr. Thompson further argues that no attorney-client privilege exists in this instance because there was no litigation involved. He states that the Office of Counsel conducted the investigation and that representatives of that office performed a routine ministerial function and now “cloak themselves with legalese and administrative clap trap to avoid acknowledging that the Cabinet owes me compensation for time worked and authorized.”

Mr. Thompson again asserted his position that he was entitled to inspect and copy any record and preliminary documentation and other supporting documentation that relates to him or in which he is mentioned by name under authority of KRS 18A.020(4); KRS 61.878(3); KRS 61.884; and, OAG 85-59.

Pursuant to KRS 61.880(2)(c), this office, in order to facilitate our review of the issues raised in this appeal, requested a copy of the records involved. We have examined the records and, although we cannot disclose them, the records for which the privilege is claimed can be described generally as the following: (1) memoranda from attorneys of the Office of Counsel to the General Counsel, Office of the Counsel and/or the Executive Director, Office of Personnel and Budget or the Department for Employment Services regarding Mr. Thompson's Earned Compensatory Leave; (2) transcript of an interview conducted of Mr. Thompson's supervisors by Office of Counsel; (3) memoranda from attorneys of the Office of Counsel to the General Counsel about another employee's compensatory time in which Mr. Thompson is mentioned by name; (4) drafts of correspondence prepared by the Office of Personnel and Budget and submitted to the Office of Counsel for review.

For the reasons which follow, it is the decision of this office that the Cabinet properly denied that portion of Mr. Thompson's request that involved attorney work product or communications between attorneys for the Office of Counsel and the Office of Personnel and Budget and other Departments of the Cabinet as they reflect the mental impressions, opinions, or work product of Cabinet attorneys in advising the Cabinet regarding Mr. Thompson's compensatory leave time.

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 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 or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the communication for which the protection is claimed. R. Lawson, Kentucky Evidence Law Handbook § 5.10 at 232, 233 (1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989); United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990). 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.

It is clear that an agency can be a “client” and agency lawyers can function as “attorneys” within the relationship contemplated by the privilege. 94-ORD-99. In seeking legal advice from Office of the Counsel, the Cabinet dealt with its attorneys as would any private party seeking counsel. To insure full and frank communication, the same assurance of confidentiality was necessary. Moreover, the attorney-client privilege has pervasive application, extending to legal matters of all types (civil and criminal) and not just to matters related to litigation. Kentucky Evidence Law Handbook, § 5.10 at 231. Clearly, the documents withheld were drafted and exchanged in the course of this attorney-client relationship in order to provide the Cabinet with advice on the legal considerations and ramifications of its actions, 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 attempt was made to insure that the information contained therein was protected from general disclosure. The Cabinet has continually maintained and asserted the attorney-client privilege with respect to these documents. It continues to do so up to the present. In our view, the Cabinet has affirmatively satisfied the third part of the test.

At odds with our decision that the records withheld by the Cabinet were exempt from disclosure by KRS 61.878(1)(l) and KRS 422A.0503 is Mr. Thompson's claim that he is entitled to inspect and copy any record and preliminary and other supporting records which relates to him or in which he is mentioned by name, citing KRS 18A.020(4); KRS 61.878(3); KRS 61.884; and, OAG 85-59.

KRS 61.878(3) provides:

No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.

(Emphasis added.)

KRS 18A.020(1), (4), and (5) provide:

(1) The records of the department [of Personnel] shall be public records and shall be open to public inspection, as provided by KRS 61.870 to 61.884 [the Open Records Act].

(4) Upon written request a state employee, an applicant for employment, and an eligible on a register shall have the right to inspect and to copy any record and preliminary documentation and other supporting documenta tion that relates to him, except that an applicant, an eligible or a state employee shall not have the right to inspect or copy any examination materials.

(5) No public agency, as defined by KRS 61.870, and no officer or employee shall deny, abridge or impede the exercise of the rights granted in any manner by this section and by KRS 61.878.

(Emphasis added.)

KRS 61.884 provides:

Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.

(Emphasis added.)

Under KRS 61.878(3); KRS 61.884; and KRS 18A.020(4), Mr. Thompson would be entitled to inspect all records relating to the Cabinet's review of his compensatory

leave time, unless the disclosure of such records was exempted by KRS 61.878(1)(k) or (l).

In 95-ORD-97, this office held that KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), with the exception of those noted in the concluding sentence of KRS 61.878(3) and KRS 61.878(1)(k) and (l) which authorize nondisclosure of records made confidential by federal or state law.

As noted above the records withheld by the Cabinet are exempted from disclosure by KRS 61.878(1)(l) and KRS 422A.0503 which prohibit disclosure of public records which constitute attorney work product or attorney-client privilege. Thus, the Cabinet properly withheld the records in question as they are made confidential and disclosure prohibited under KRS 61.878(1)(l) and KRS 422A.0503, which override the provisions of KRS 61.878(3); KRS 61.884; and KRS 18A.020(4).

OAG 85-59, which Mr. Thompson cites as supportive of his position, is factually distinguishable from the instant appeal and, thus inapposite to the records involved here. In OAG 85-59, the records involved were internal interoffice memoranda, i. e., written instructions, which had taken on the aura of final actions of the Cabinet relative to matters of personnel and employment, such that they were not preliminary documents subject to the exclusion under the Open Records Act. No attorney-client communications were involved. In the instant appeal, the records wthheld contain attorney work product and involve communications subject to the attorney-client privilege, which may be properly withheld under the authority of KRS 61.878(1)(l) and KRS 422A.0503.

Because we believe that KRS 61.878(1)(l), operating in tandem with KRS 422A.0503, justifies the nondisclosure of the records withheld, we do not address other arguments raised in this appeal. It is the decision of this office that the Cabinet properly withheld the requested records.

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

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/1320

Distributed to:

James F. Thompson

5 Ashmore Drive

Frankfort, Kentucky 40601

D. T. Maynard

Executive Director

Office of Personnel and Budget

Cabinet for Human Resources

Frankfort, Kentucky 40621