When you turn on a light (open records request) bureaucratic cockroaches in Frankfort run for their favorite dark corner, the one labeled attorney client privilege.
Did you ever wonder why so many state agencies have General Councils?
The General Council is the house lawyer to the agency management team. So here’s the drill.
Let’s say you have an issue that is embarrassing, if not illegal, and you are trying to figure out what to do. You have your General Council in the meeting, that way if anything gets out about what you are doing or not doing you can claim attorney client privilege to stonewall an open records request.
Here is an example of stonewalling an open records request.
James Dodrill filed an open records request with the Kentucky Retirement Systems. (Read the previous post for more on the Kentucky Retirement Systems.)
Dodrill’s request was partially denied and he appealed to the Attorney General for a ruling.
From the Attorney General’s ruling:
‘The question presented in this appeal is whether Kentucky Retirement Systems violated the Open Records Act in partially denying James Dodrill’s May 25, 2004, request for a copy of “all employee investigations, charges, and records of discipline imposed for the following employees or former employees of Kentucky Retirement Systems: Lauren Stewart[;] Glenn Valley[;] Cheri Curtsinger[; and] Robert Sircy.” For the reasons that follow, we affirm KRS’s partial denial of Mr. Dodrill’s request.
By letter dated May 28, 2004, KRS General Counsel J. Eric Wampler responded to Mr. Dodrill’s request. Although Mr. Wampler provided Mr. Dodrill with copies of records reflecting disciplinary measures imposed on Cheri Curtsinger and Robert Sircy, he denied Mr. Dodrill’s request for “employee investigations, charges, and records of discipline imposed on” Lauren Stewart and Glenn Valley. In so doing, Mr. Wampler relied on the attorney-client privilege, asserting that “[a]ny documentation which may exist regarding this subject matter involves protected communications between the Board of Trustee of the Kentucky Retirement Systems and their legal representatives.”
…..” In sum, Mr. Wampler maintained that KRS’s partial denial of Mr. Dodrill’s request “was supported by all relevant statutory and case law.”
In response, Mr. Dodrill advised this office (Attorney General Greg Stumbo), by letter dated July 2, 2004:
Lauren Stewart and Glenn Valley were former employees of Kentucky Retirement Systems. Mr. Stewart was Chief Operations Officer and Mr. Valley was Director of Accounting. Mr. Stewart and Mr. Valley engaged in questionable cash management practices while employed at Kentucky Retirement Systems.
As former staff attorney of Kentucky Retirement Systems, I was asked to proof read letters of reprimand prepared for Mr. Stewart and Mr. Valley. Mr. Wampler may be playing some game of semantics with your office; however, I assure you these records do exist.
The opinion goes on to say:“The record on appeal therefore does not support Mr. Dodrill’s veiled assertion that KRS has concealed these records.”
I’m not a lawyer, but Dodrill’s assertion didn’t look veiled to me, he pretty much called Kentucky Retirement Systems management and their lawyer liars.
So three conclusions from this:
First, the Attorney Client privilege is being abused when it comes to Kentucky state government. The transparency of government is non-existent when it can be hidden by the attorney client two step.
Let’s add reform of this privilege, when it comes to the functioning of state government agencies, to our Legislative Agenda.
Second, does anyone else see a pattern with the management of multiple millions of dollars in taxpayer and state employee funds? Does the Board of Trustees of the Kentucky Retirement Systems actually show up and do anything? Who is holding the management team responsible?
Third, this agency is having a hard time passing the smell test, so where are the Attorney General, the Auditor of Public Accounts, and other regulatory entities?
