NOT TO BE PUBLISHED

96-ORD-129

June 6, 1996

In re: James D. Asher/City of Whitesburg

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the City of Whitesburg's denial of Mr. James D. Asher's open records request “to inspect and copy all records showing payments to Ronald G. Polly, Gene Smallwood, and/or Polly & Smallwood from any fund owned, controlled, and/or administered by City of Whitesburg from January 1, 1994, to present, including any funds borrowed from any bank to pay any invoice submitted by those above named.”

Pursuant to a request from the City to be informed of the purpose and the intended use of the requested records, Mr. Asher responded that the request was not made for a commercial purpose. In his letter to the City, dated April 4, 1996, Mr. Asher stated that he would not “directly or indirectly be using any part of the requested record, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the undersigned would profit either through commission, salary, or fee.”

The City denied Mr. Asher's request, stating:

Your requests for inspection of City documents are categorically denied. We cannot believe your representation that you do not seek the City documents for commercial purposes and personal gain as represented in you letter to Ms. Sexton of April 4, 1996. The evidence demonstrates that you have, through wrongful and improper statements and actions, adversely attacked and sought to harm the present administration, City, and its citizens since your defeat by them in the last election. The evidence further demonstrates that you have fostered disputes and improper competition with Ronald Polly, Gene Smallwood, and Polly & Smallwood, attempting to interfere, disrupt, and harm our business with our clients and the citizens of Whitesburg. Therefore, it can only be reasonably concluded that you seek these documents to improperly further your improper motives and actions and for personal profit and gain. It is clear that you are not operating in any “watchdog” capacity as is contemplated by the open records law. Instead, your other personal purposes in these matters are an attempted abuse of the open records law.

Further, your requests for records of payment to Attorneys Ronald Polly, Gene Smallwood, and Polly & Smallwood are denied pursuant to KRS 61.878(1)(l), the Kentucky Rules of Civil Procedure, and the Kentucky Rules of Evidence.

After receipt of Mr. Asher's letter of appeal and as is authorized by KRS 61.880(2), the City submitted a response to the issues raised in the appeal. The City takes the position that Mr. Asher's statement that he is not seeking the requested records for a commercial purpose is false and that he is seeking them for improper purposes, such as to “wrongfully complain about any action of the present administration with respect to employment contracts or attorney fees in order to harm the present administration and Polly & Smallwood and obtain some profit or gain, politically or professionally, to himself as he perceives it.”

In addition, the City states that Mr. Asher's request for the statements of payment to the City's counsel, involving payment for legal work in investigating and preparation for filing a complaint in which Mr. Asher is to be a named defendant, or in collaboration with or informant to defendants, is not relevant, and therefore, not discoverable. The City, citing KRS 61.878(1)(l), argues that he is using the Open Records Act to obtain nonrelevant information which the Civil Rules and Rules of Evidence would not otherwise permit.

For the reasons which follow, we conclude that the City's denial of Mr. Asher's request was inconsistent with and in violation of the Open Records Act.

An agency may require a generalized statement of the intended use of the public record when such is necessary to aid in the determination of appropriate fees to be assessed should the request involve use of the non-exempt records for a commercial purpose. This is particularly so in situations, such as in the instant appeal, where the agency believes th

ere is at least the suspicion or appearance that the inspection may be for commercial purposes. 95-ORD-17.

KRS 61.870(4)(a) and (b) provide:

(a) “Commercial purpose” means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.

(b) “Commercial purpose” shall not include:

1. Publication or related use of a public record by a newspaper or periodical;

2. Use of a public record by a radio or television station in its news or other informational programs; or

3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties.

In the instant appeal, Mr. Asher advised the City in writing that his request was not made for a commercial purpose. To use the records, as the City asserts, “to complain about any action of the present administration with respect to employment contracts or attorney fees in order to harm the present administration and Polly & Smallwood and obtain some profit or gain, politically or professionally, to himself as he perceives it,” does not fall within the definition of “commercial purpose” as set out above in KRS 61.870(4)(a) and (b).

Accordingly, the requested records should be made available for Mr. Asher's inspection. We note that the Open Records Act provides sanctions for a person to obtain a copy of public records for a commercial purpose without stating the commercial purpose. KRS 61.878(5).

KRS 61.8745 mandates that a person who violates subsections of KRS 61.874 shall be liable to the public agency from which the public records were obtained for damages in the amount of:

(1) Three (3) times the amount that could have been charged for the public record if the actual commercial purpose for which it was obtained or used had been stated;

(2) Costs and reasonable attorneys' fees; and

(3) Any other penalty established by law.

As this office stated in 95-ORD-17, this statute puts a requester on fair notice that charading an inspection of public records as a request for “non-commercial purposes” when, in fact, it is for a “commercial use,” shall be sanctioned.

We further conclude that the City improperly relied upon KRS 61.878(1)(l) in denying Mr. Asher's request to inspect and copy all records showing payments to the listed attorneys in contract with the City.

Records which are the work product of an attorney or fall within the parameters of the attorney-client privilege are not discoverable under the Kentucky Rules of Civil Procedure, CR 26.02(3). Such records are therefore exempt from public inspection under KRS 447.154, which 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 governing practice and procedure in the court. This provision operates in tandem with KRS 61.878(1)(l), which excludes from the mandatory disclosure provisions of the Open Records Law, “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly,” to authorize the nonrelease of attorney work product. 93-ORD-58.

The public is, however, entitled to review the contracts, vouchers, and other business records of a public agency, including records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys. Should these invoices and billing statements disclose substantive legal matters protected by the attorney client privilege, and exempt under KRS 61.878(1)(l), the exempt material should be separated from the nonexempt material, and the nonexempt material released for inspection. OAG 92-14; OAG 92-92.

Applying these principles to the facts presented in this appeal, we conclude that the City erroneously withheld records relating to payments made to its contract attorneys, and bills and statements submitted by its attorneys, which did not disclose substantive legal matters. As noted above, these records should be made available for Mr. Asher's inspection.

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/552

Distributed to:

James D. Asher

Attorney at Law

112 East Main Street

Whitesburg KY 41858

Gene Smallwood, Jr.

Polly & Smallwood

Attorneys at Law

P. O. Box 786

104 North Webb Ave.

Whitesburg KY 41858