Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Bullitt County Planning Commission's denial of that portion of the open records request of Leslie D. Miles which requested:
a listing of all sums paid and payable to the Zoning attorney or attorneys in the Miller Billboard Case, Bullitt Circuit Court, Civil Action No. 97-CI-248, AND a listing of all sums paid or payable to the Zoning attorney or attorneys since John Wooldridge ceased being the Planning and Zoning Attorney.
Jennifer E. Porter, attorney for the Commission, denied Ms. Miles request, stating:
With respect to your request for all sums paid and payable to the Zoning attorney or attorneys in the Miller Billboard Case, Bullitt Circuit Court, Civil Action No. 97-CI-248, this information involves pending litigation and is privileged from disclosure pursuant to KRS 61.878(1) as this provision prohibits a Court from ordering the inspection by a party of records relating to civil litigation where those records would not be discoverable under the Kentucky Rules of Civil Procedure. See also OAG 82-169. Additionally, this information is privileged pursuant to the attorney-client and work product privileges and KRS 61.878(1) and (k) in conjunction with KRS 422A.0503(2).
Sums paid and payable to the Zoning Attorney or attorneys since John Wooldridge ceased being Planning and Zoning Attorney for the Planning Commission for other matters involving pending litigation involving the Bullitt County Planning Commission or Bullitt Board of Adjustments are similarly privileged from disclosure for the same reasons and based upon the same provisions as set forth above. The Bullitt Planning Commission declines to provide this information for the reasons stated.
We are asked to determine whether the Bullitt County Planning Commission's denial of Ms. Miles's request for the attorney billing records was proper. For the reasons that follow, we conclude that the denial was improper and inconsistent with the Open Records Act and prior decisions of this office.
In support of the denial of Ms. Miles's request for the attorney billing records relating to the Miller Billboard Case and other pending litigation, the Commission argues that these statements are exempted from disclosure by KRS 61.878(1). Relying on OAG 82-169, the agency maintains that records of payments made to attorneys may be withheld while litigation is pending. This position was rejected in OAG 92-14 and OAG 92-92, copies of which are attached hereto and incorporated by reference. In OAG 92-14, p. 6, we observed:
There can be little doubt that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of insuring agency accountability. We recognized this principle in OAG 82-169 and OAG 85-91, where we expressly held that the records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys, should be made available for public inspection at the conclusion of pending litigation. We believe that that opinion, coupled with the authorities cited above, mandate release of the monthly statements prepared by the City's attorneys which reflect the general nature of the legal services rendered. Should those invoices disclose substantive matters protected by the attorney client privilege, and exempt under KRS 61.878(1)(j) [now codified as KRS 61.878(1)(l)], the exempt material should be separated from the non-exempt materials, and the non-exempt materials released for public inspection.
In OAG 92-92, we elaborated on OAG 92-14, reaffirming our opinion that information about attorney fees is privileged only if its disclosure would reveal confidential communications between the attorney and client, and announcing that the existence of pending litigation does not preclude release of the records by a public agency unless the agency is a law enforcement agency or an agency involved in administrative adjudication, and premature disclosure of the information would harm the agency. KRS 61.878(1)(h). We believe that these opinions, along with our recapitulation of this position in 95-ORD-18, copy enclosed, are contrary to the Commission's position, and are controlling. The Commission should immediately arrange for Ms. Miles to inspect those records of the requested attorney expenses, subject to the rules governing redaction which are articulated in the cited decisions.
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.