NOT TO BE PUBLISHED
In re: W. E. Quisenberry, Jr./Natural Resources and
Environmental Protection Cabinet
This is an appeal from the Natural Resources and Environmental
Protection Cabinet's response to W. E. Quisenberry, Jr.'s June
30, 1997, request for a copy of an opinion prepared by the Cabinet's
Office of Legal Services. Relying on KRE 503, incorporated into
the Open Records Act by operation of KRS 61.878(1)(l), the Cabinet
denied Mr. Quisenberry's request, arguing that "the legal
opinion . . . constitutes a confidential communication between
attorney and client made for the purpose of facilitating the rendition
of professional legal services to the client." The question
presented in this appeal is whether the Cabinet properly relied
on the cited provisions to deny Mr. Quisenberry access to the
legal opinion. For the reasons which follow, we affirm the Cabinet's
denial of the request.
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
KRE 503 to exclude from public inspection otherwise public records
protected by the attorney-client privilege. KRE 503(b) 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 [.]
Thus, the privilege consists of three elements: The relationship
of attorney and client, communication by or to 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. Robert G. Lawson, The Kentucky Evidence Law Handbook
§ 5.10 (Michie, 3d ed 1993), citing United States
v Schwimmer, 892 F2d 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.
The term "client" is defined to include "a person,
including a public officer, corporation, association, or other
organization or entity, either public or private, who is
rendered professional legal services by a lawyer. . . ."
KRE 503(a)(1). The privilege extends to communications from
attorney to client "if they constitute legal advice, or tend
directly or indirectly to reveal the substance of a client confidence."
Kentucky Evidence Law Handbook at § 5.10 citing
United States v Defazio, 899 F.2d 626, 635 (7th
Cir 1990). Of course, the privilege "must be strictly construed
and given no greater application than is necessary to further
its objective." Kentucky Evidence Law Handbook § 5.10.
Contrary to Mr. Quisenberry's belief, it is clear that a public
agency can be a "client" and agency lawyers can function
as "attorneys" within the relationship contemplated
by the privilege. This seems to be just such a case. On October
25, 1997, Mark Thompson, director of the Cabinet's Department
for Surface Mining Reclamation and Enforcement, Division of Field
Services, requested a legal opinion on the issue of permanent
impoundment in anticipation of a bond release hearing requested
by Mr. Quisenberry on behalf of his clients. In response, Iris
Skidmore, Manager of the Surface Mining Legal Branch, authored
a memorandum in which she offered legal analysis and advice.
The Department for Surface Mining Reclamation and Enforcement
dealt with its attorneys as would any private party seeking counsel
to protect its interests, necessitating the same assurances of
confidentiality.
Clearly, Ms. Skidmore's memorandum was prepared by the Department's
attorney as part of a professional relationship in order to provide
the Department with advice on the legal ramifications of the issue
presented, thus satisfying the first and second parts of the three
part test. It is equally clear that the Department has attempted
to insure that the analysis contained in the legal opinion was
shielded from disclosure. The notation "Internal Memorandum"
appears on the first page of the opinion. While this office has
held that such a notation is not controlling in an open records
dispute, we have also recognized that the notation will be respected
when it is consistent with one or more of the exceptions to public
disclosure. OAG 90-13; compare OAG 79-413. The Department sought
to limit disclosure to the requester, Mr. Thompson, and the Department's
commissioner, Carl Campbell. Moreover, the Department has made
continuing efforts to insure its confidentiality. In releasing
the record to this office for examination under KRS 61.880(2)(c),
the Department confirmed that it would not be disclosed to other
parties. In our view, the Department has affirmatively established
confidentiality, the evidence demonstrating that every effort
was made to protect the legal opinion within the agency from the
date it was prepared to the present. 94-ORD-88.
We are not persuaded by Mr. Quisenberry's argument that the record
lost its exempt status when, and if, the Department incorporated
it into its final decision in this matter. This office has previously
recognized that although a number of the exceptions to the Open
Records Act are forfeited "upon the occurrence of a specific
event, this has never been the rule with respect to attorney work
product [and documents shielded by the attorney-client privilege]."
OAG 91-214. It is our opinion that reliance on legal advice is
not synonymous with "incorporation" as that term is
defined in the long line of cases interpreting KRS 61.878(1)(j).
Simply stated, reliance on legal advice does not negate the attorney-client
privilege.
We believe that KRS 61.878(1)(l), operating in tandem with KRE
503, justifies the nondisclosure of the disputed record. It is
the opinion of this office that the Cabinet properly withheld
the legal opinion.
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
Amye L. Bensenhaver
Assistant Attorney General
#766
Distributed to:
W. E. Quisenberry, Jr.
Quisenberry and Quisenberry
P. O. Box 261
Calhoun KY 42327
Ronald P. Mills
Office of Legal Services
Natural Resources and
Environmental Protection Cabinet
Fifth Floor, Capital Plaza Tower
Frankfort KY 40601