NOT TO BE PUBLISHED

96-ORD-65

March 21, 1996

In re: R. Keith Cullinan/City of Louisville

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the City of Louisville's denial of Mr. R. Keith Cullinan's open records request to inspect certain records in the City's custody.

By letter dated February 1, 1996, Mr. Cullinan requested to inspect “those records that will reflect the statutory notices under KRS 65.2005(2) submitted to the City by the following defendants in the case of Cullinan v. Abramson, et al:

John Nevin

Stuart P. Jay

Mac Unger.”

By letter dated February 7, 1996, Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, responded to Mr. Cullinan's request, stating:

The records you describe, if they exist, are exempt under KRS 61.878(1) as records pertaining to litigation not disclosable beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. The City does not waive any other exemptions which may apply.

By letter dated February 8, 1996, Mr. Cullinan responded to Mr. Guagliardo's February 7, 1996 letter, stating:

Please refer to your letter to me dated February 7, 1996, concerning my Open Records Request for records regarding certain statutory notices under KRS 65.2005(2).

Your response does not comply with the Open Records Act for the following reasons:

1. It does not advise whether the official custodian has custody or control of the records requested. See KRS 61.872(3).

2. It does not state the specific exemption upon which your denial is based. See KRS 61.880(1). As you well know, the purported excuse you use is not one of the specific exceptions under KRS 61.878(1).

I therefore reiterate my request and will appreciate your response within the three-day period provided by statute.

By letter dated February 13, 1996, Mr. Guagliardo responded to Mr. Cullinan's reiterated request, stating:

I disagree with your analysis and stand by my original response. Additionally, any record which might exist, if it falls within your description, if it could be located, would be exempt under KRS 61.878(1)(i) (preliminary, interoffice communications) or (l) (attorney-client privilege).

In his letter of appeal to this office, Mr. Cullinan states that the City's response violates the Open Records Act. In support of his position, Mr. Cullinan states, in pertinent part:

The City's response that “. . . any record which might exist, if it falls within your description, if it could be located, would be exempt . . . etc.” (emphasis supplied) fails woefully to comply with the long-standing requirement of the Open Records Act that an agency responding to a party requesting inspection of records must advise the requesting party whether the documents exist. See OAG 91-101 (copy attached for your convenient reference); OAG 90-26, at page 4; OAG 90-69; OAG 86-38 at page 3.

* * *

The records I seek relate to this statutory notice [KRS 65.2005(2)] that is required to be filed with the executive authority of a local government. Such notice must be filed within 10 days of the receipt of service of process by an employee who seeks the benefits of the statutes.

It's therefore patently ridiculous for the City to try to claim such a notice is an “interoffice communication” and even more so to call it “preliminary,” since the notice involved would have been required to be filed almost two years ago!

Even more surrealistic is the City's attempt to wrap a statutorily-mandated prerequisite notice in the cocoon of “attorney-client privilege.” A statutory notice required to be sent to the executive authority of the local government comes nowhere close to being privileged, and it is sadly outrageous (though wholly predictable) for the City to attempt to invoke it.

I therefore respectfully ask that the Attorney General issue a finding that the City must advise whether the requested records exist. I would hope that since the City's position is untenable on its face, your consideration of this appeal can be expedited.

Subsequent to receipt of Mr. Cullinan's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Guagliardo, by letter dated March 1, 1996, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Guagliardo states:

Mr. Cullinan is trying to do an end run around the federal lawsuit he filed against Messrs. Nevin, Jay and Unger, and others in Cullinan v. Abramson, et al. He knows that the trial judge has stayed all discovery in that case. He also knows that he has asserted the City's “indemnity” of Messrs. Nevin, Jay and Unger as an issue in that case.

We believe that records pertaining to the Cullinan v. Abramson, et al case are not disclosable beyond that which is provided by the rules of civil procedure governing pretrial discovery. KRS 61.878(1).

Additionally, there are, of course, various communications between Messrs. Nevin, Jay or Unger and the City Law Director and other city attorneys about the Cullinan v. Abramson litigation. And there may exist other communications between these three defendants in the Cullinan v. Abramson case and other members of the executive branch of city government pertaining to the case.

Any written communications which may exist between Mr. Nevin, Mr. Jay or Mr. Unger and any other member of the executive branch of city government pertaining to the case of Cullinan v. Abramson, et al, are exempt under KRS 61.878(1)(i) or (j) as preliminary, interoffice correspondence, notes, memoranda, etc. And if any such communications involve discussions with or communication to the City Law Director of other legal counsel, those records are further exempt under KRS 61.878(1)(l) (attorney client privilege; work-product).

Mr. Cullinan's reliance on what he describes as a “statutorily mandated prerequisite notice” is misplaced. Assuming (without conceding) the correctness of Mr. Cullinan's interpretation of KRS 65.2005, the exemptions KRS 61.878(1)(i)(j) or (k) do not become vitiated because a notice is a “statutorily mandated prerequisite.” There is, for example, probably some federal or state “mandate” that a public employee's social security number be maintained in his/her personnel records. That “requirement” doesn't mean the privacy exemption in subsection (1)(a) no longer applies.

We are asked to determine whether the City's response to the open records request was consistent with the Open Records Act. For the reasons which follow, it is the conclusion of this office that the City's response in this matter was consistent with Act.

This office has held that the Open Records Act should not be used by parties to litigation as a substitute for discovery, a principle now codified as KRS 61.878(1), and we have repeatedly recognized that the Act in no way supersedes a protective order when a public agency is properly before a court. 94-ORD- 19.

In this instance, Mr. Cullinan and the City are parties in federal litigation in which the trial judge has entered an order staying all discovery in that case. The disclosure of the existence or nonexistence of the requested records or other documents related to the litigation is in the nature of discovery. Both parties are required to obey the stay of discovery order out of deference to the judicial process. KRS 61.878(1); OAG 92-119. The City, in compliance with the court's order, properly declined to respond to the specifics of Mr. Cullinan's request. Accordingly, it is the decision of this office that the City's response in this instance was consistent with the Open Records Act.

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/166

Distributed to:

R. Keith Cullinan

Attorney at Law

1406 Browns Lane

Louisville, Kentucky 40207

Paul V. Guagliardo

Senior Attorney

City of Louisville

Department of Law

Room 200, City Hall

Louisville, Kentucky 40202-2771