Sunday, February 19, 2012

Policy won't cut it: AG says public defender has to disclose cases she handled in certain time period

The attorney general’s office recently found that the Department of Public Advocacy improperly withheld records in responding to a request for documents identifying a DPA attorney's cases by case name for March and April of 2010 and their trial dates.

Attorney General Jack Conway said the DPA, in its Dec. 19 response to James Potter, violated the Act procedurally and substantively. Procedurally, the response did not cite a specific exception to the Open Records Act. Substantively, the DPA relied heavily on a policy – based upon the Rules of Professional Conduct for lawyers and an ethics opinion from the Kentucky Bar Association Ethics Hotline Committee – not to disclose lists of client names absent a lawful order or other legal requirement to do so. The policy says “Specific case information is not to be shared, but generally case totals or trend data not identifying a particular client may be shared.”

The attorney general's office considered those arguments in a 2002 decision (02-ORD-103) and concluded that disclosure of the names of clients represent by a named DPA attorney would violate neither attorney-client privilege nor the client’s privacy. It said that when represented by DPA counsel in open court, clients cannot expect confidentiality.

On an aside, the DPA made a supplemental response that tried to justify the denial on the basis that the information that Potter requested, while it existed in a database, was not a regular report generated by the DPA. Conway said that argument was procedurally deficient because the open-records law makes clear that a public agency has discretion to tailor the format of existing records to conform to the parameters of a specific request. He said the DPA must produce a report for Potter or give him access to the entire Kentucky Unified Criminal Justice Information System database after redacting any statutorily protected information.

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