Kim Davis, the Rowan County Kentucky clerk who made headlines last year by refusing to issue marriage licenses to same sex couples remains engaged in legal battles. Maybe she likes the attention. In any event, her most recent adventure has resulted in a ruling by the Kentucky Attorney General finding she violated Kentucky’s Open Records Law.
Ms. Davis’s adversary in this most recent battle is not a same sex couple, but rather an organization called “The Campaign for Accountability.” The CFA is a non-profit organization that works to “expose misconduct and malfeasance in public life.” The CFA made a public records request for “copies of all retainer agreements and attorney-client engagement agreements from January 1, 2013, to the present between [Ms. Davis and her staff] and Liberty Counsel.” The request also sought copies of “all documents that authorize [Ms. Davis] to enter into an attorney-client relationship with an outside entity or individual in [her] governmental capacity on behalf of Rowan County.”
Liberty Counsel is a religious advocacy group that represented Ms. Davis in her battle over the marriage license issue last year. Answering on behalf of Ms. Davis, the Liberty Counsel asserted a number of defenses to the Open Records Act that in its view would put the requested documents beyond the CFA’s reach. Included in the defenses were claims that the records were protected by the attorney client privilege and that they were “preliminary” and therefore not subject to production.
Not satisfied with this response, the CFA appealed to the Attorney General for a ruling on the propriety of the Liberty Counsel’s response. As a threshold matter, the CFA argued it was entitled to a response from Kim Davis herself, not the Liberty Counsel. The Attorney General disagreed with this position. It found that a public official “does not violate the Open Records Act in responding to a request through private counsel.” So far so good for Ms. Davis.
But the Attorney General found that Ms. Davis and the Liberty Counsel did violate the Open Records in another aspect. The Attorney General had asked that Ms. Davis produce the records for an “in camera” review. In a case like this, the Attorney General is entitled to review the records privately to determine if the party is entitled to invoke the exemption. The attorney client exemption is a good example. Without the ability to privately inspect the records, the Attorney General would have to take the Liberty Counsel’s word for it. I’m not saying they’d lie, but “scout’s honor” seems like a pretty thin legal standard.
But Liberty Counsel and Ms. Davis apparently think their word is good enough. They refused to produce the records for an in camera review. The Attorney General, unsurprisingly, found this refusal to constitute a violation in itself. As the AG noted, “[a]n agency cannot benefit from intentionally frustrating the Attorney General's review of an open records request; such result would subvert the General Assembly's intent behind providing review by the Attorney General.”
It’s possible that the Liberty Counsel’s positions – that the records are protected by the attorney client privilege and are preliminary – are correct. But the decision maker – the Attorney General – is entitled to make an informed judgment. Otherwise, this becomes a matter of faith. That may suit the Liberty Counsel’s religious beliefs, but it’s not great public policy.
