Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Garrard County Fiscal Court violated the Open Records Act in responding to that portion of David Wilson's September 23, 2004 request submitted to E. J. Hasty, Garrard County Judge Executive for copies of "all invoices from Gess, Mattingly & Atchison, P.S.C." For the reasons that follow, we conclude the invoices provided by the Fiscal Court adequately described in general terms the nature of the services provided and, in the proper exercise of its discretion, properly redacted portions of its billing records that would reveal substantive legal matters and litigation strategy that were privileged under the attorney-client privilege and work product doctrine. However, we further conclude that the Fiscal Court did not adequately explain why portions of some of the invoices sent to the Fiscal Court had amounts charged redacted.
By letter dated September 28, 2004, Jeff Moss, Garrard County Attorney, on behalf of the Fiscal Court, responded to Mr. Wilson's request, advising him, in relevant part:
We are in the process of preparing the invoices for your review. Please be advised the county is involved in various litigation matters for which Gess, Mattingly & Atchison, P.S.C. is our representation. These invoices must be redacted to insure that no privileged communications or work product are revealed. Unfortunately I will be leaving the state on Thursday, September 30 at noon and will not return to the office until Monday, October 11. This process may take thirty to forty-five days but rest assured we will notify you once those documents are ready for review.
Once you are advised the invoices are ready they will be open for inspection in the office of Judge Hasty. Should you wish to receive copies of these records there will be a reasonable charge for reproduction. Due to space constraints of Judge Hasty's office, please contact him to set up a time for you to review these documents.
By supplemental letter dated October 12, 2004, Mr. Moss again advised and assured Mr. Wilson that "as quickly as the redacted invoices are prepared they will be forwarded to you" and that the "process will be expedited as much as possible in keeping with the intent of KRS 61.870 through KRS 61.884."
By letter dated November 12, 2004, Mr. Moss advised Mr. Wilson:
The invoices from Gess, Mattingly & Atchison, P.S.C. are ready for your review in the office of Garrard County Judge Executive E.J. Hasty. Again, due to space constraints, please contact the Judge's [office] to schedule an appointment to review these documents. There will be a charge for copies, if desired.
By letter dated December 12, 2004, Mr. Wilson perfected the instant appeal. In his letter of appeal, Mr. Wilson argued that the invoices he received had been "improperly redacted and altered."
After receipt of notification of the appeal and a copy of the letter of appeal, William A. Bausch, Gess, Mattingly & Atchison, P.S.C., on behalf of the Fiscal Court, provided this office with a response to the issues raised in the appeal. In his response, Mr. Bausch advised, in relevant part:
The redactions that have occurred relate to active civil litigation matters and contain privileged communication between the attorney and his or her client. Pursuant to KRE 503(a)(1) "client" means 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. Or who consults a lawyer with a view to obtaining professional legal services from the lawyer." (emphasis added).
A public entity is considered a "client" pursuant to the Kentucky Rules of Evidence and therefore, communications, particularly those relating to ongoing litigation, are privileged. In accordance with CR 26.02(1) parties may "obtain discovery regarding any matter, not privileged" (emphasis added). CR 26.02(3) elaborates on the discovery of items setting forth those limited case where discovery may be had of items precluded pursuant to CR 26.02(1). CR 26.02(3) specifically mandates that "the court shall protect against the disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning litigation." CR 26.02(3) also limits the discovery of material precluded under CR 26.02(1) to those situations where "the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."
In the current case, Mr. Wilson is not a party who would be entitled to the requested redacted information, under any circumstance.
Clearly, pursuant to the Kentucky Rules of Evidence, an attorney client privilege exists between Gess, Mattingly & Atchison and the Garrard County Fiscal Court as a "client" may be a public or private entity. KRE 503(a)(1))
?
Each of the files that were redacted prior to presentation to Mr. Wilson contained information that involved active, ongoing litigation matters and further, involved the mental impressions, opinions of attorneys and /or legal theories involved in active litigation actions. All matters not privileged, remained intact for review by Mr. Wilson.
?
All records in the custody of the records custodian requested by Mr. Wilson have been provided. Further, in accordance with the arguments set forth above, redaction of privileged communication is not only appropriate, but mandated. The purpose behind privileged communication is to encourage open and complete discussion between an attorney and his or her client. This is one of the most basic tenets of the practice of law. . . .
We are asked to determine whether the response of the Fiscal Court to Mr. Wilson's request for "all invoices from Gess, Mattingly & Atchison, P.S.C." violated the Open Records Act. For the reasons that follow, we conclude that portions of the response that provided Mr. Wilson with a copy of the billings which described in general terms the nature of the services provided and the amounts charged, but with portions of the billings, which the attorneys considered privileged under the attorney-client privilege and work product doctrine, redacted was proper and did not constitute a violation of the Act. However, we further conclude that the Fiscal Court did not adequately explain why portions of some of the invoices sent to the Fiscal Court had amounts charged redacted. Unless the agency can substantiate a proper basis for withholding the amounts charged, the redacted amounts should be made available for Mr. Wilson's inspection.
In 99-ORD-14, this office discussed the principles established relative to billing records relating to the performance of legal services to a public agency. In that decision we stated:
With respect to records documenting the rendition of legal services by public agency counsel or private counsel under agency contract, the following principles have been established:
OAG 92-92, p. 6. "This resolution of the issue of the applicability of the attorney client privilege to [time] records," we concluded, "subserves both the [agency's] interest in protecting privileged information and the public's interest in monitoring the [agency's] activities to insure that it is properly executing its statutory function and pursuing the public good," Id. at 6. Thus, public agencies must disclose records which describe, in general terms, the nature of the services rendered such as, for example, "research," "witness interviews," "discussions with client." They may exercise their discretion in withholding records, or redacting portions of records, which disclose substantive matters and litigation strategy. See also, OAG 92-14, 95-O RD-18.
In his response to this office to Mr. Wilson's letter of appeal, Mr. Bausch explained that the redactions relate to active civil litigation matters and contain privileged communication between attorney and client and that each of the redactions "contained information that involved active, ongoing litigation matters and further, involved the mental impressions, opinion of attorneys and/or legal theories involved in active litigation actions. All matters not privileged, remained intact for review by Mr. Wilson."
Our review of the invoices shows that the billings described, in general terms, the nature of the services provided such as, for example, "review and analyze letter," "research and analyze," "preparation of letter," "preparation for meeting with the Fiscal Court." We find that the invoices provided by the Fiscal Court adequately described in general terms the nature of the services provided and, in the proper exercise of its discretion, properly redacted portions of its billing records that would reveal substantive legal matters and litigation strategy that were privileged under the attorney-client privilege and work product doctrine. Accordingly, this portion of the Fiscal Court's response did not violate the Open Records Act. 99-ORD-14; 99-ORD-174.
However, the Fiscal Court also redacted portions of amounts charged in the invoices without adequate explanation for the redaction. In a December 7, 2004 to this office, Mr. Bausch responded to issues relevant to the invoices at issue in the instant appeal. In that response, he explained, in relevant part:
. . . the invoices in question concern litigation matters with multiple defendants. The charges reflected in the invoices provided are only the percentage of charges invoiced to Garrard County, the recipient of the underlying Open Records Request. The remaining portion of the invoice balances were submitted to the appropriate parties for remittance. . . .
The Fiscal Court's responses do not explain why the amounts charged on invoices to a public agency were redacted. Its explanation appears to be that they are not relevant to the amounts charged to the Fiscal Court. However, the invoices were sent to the Fiscal Court. If the amounts relate to other parties or other actions, they could be explained as such without redaction and the totals relevant to each of the billings could be assessed by the public. Unless the Fiscal Court can substantiate a proper basis for not disclosing the amounts redacted, the redacted amounts should be made available for Mr. Wilson's inspection.
A party aggrieved by this decision may appeal it by initiating an 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 proceedings.