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 Russellville Electric Plant Board violated the Open Records Act in the disposition of Mike Smith's request for certain bills for legal fees paid by the Board over a period of years. For the reasons that follow, we conclude that, with the exception of a procedural violation, the Board's actions did not violate the Act.
By letter dated February 13, 2005, Mr. Smith submitted an open records request to the Board, requesting:
A copy of all bills for legal fees whether paid or owing for the years 2002 and 2003 and 2004 and 2005, specifically to include but not limited to legal fees paid to attorneys Fred Greene, Jeff Hebert and Steve Pitt with the firm of Wyatt, Tarrant & Combs.
By letter dated February 22, 2005, Larry Wilcutt, Superintendent of the Board, responded to Mr. Smith's request, advising:
The following items are being made available to you in response to your request that was received via U. S. Mail on February 18, 2005:
Shortly thereafter, Mr. Smith initiated an appeal to this office appealing the Board's refusal to allow him to inspect the bills in the Board's possession in order to obtain access to information in the bills that was not confidential.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Wilcutt, by letter dated March 8, 2005, advised this office that the billing records requested by Mr. Smith, a total of 153 pages, had been provided to him by the Board with protected items redacted. With its response to this office, the Board enclosed, for our review, copies of the redacted billing records provided to Mr. Smith.
We are asked to determine whether the response of the Board violated the open records Act. As noted above, with the exception of a procedural violation, we conclude that the response did not substantively violate the Act
The Board violated KRS 61.880(1) by failing to identify the exceptions authorizing redaction of portions of the attorney billing records and explaining how the exceptions apply to the information withheld. KRS 61.880(1) provides in relevant part:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). In its response, the Board indicated the redacted items were protected as privileged attorney client correspondence, but failed to cite the statutory exception upon which it relied and explaining how the exception applied to the information withheld. Thus, the Board's response was deficient in failing to meet the procedural requirements of KRS 61.880(1).
We next address the substantive issue. In OAG 92-14, the Attorney General held that records of payments made to attorneys by a public agency, and bills and statements submitted to the agency by its attorneys, should be made available for inspection. Relying on OAG 82-169 and OAG 85-91, we also held that records which reflect the general nature of legal services rendered are not exempt. Only those records, or portions of records, which disclose substantive matters protected by the attorney-client privilege, and are exempt under KRS 61.878(1)(l), can properly be withheld. The Board was therefore obligated, pursuant to KRS 61.878(4), to separate the exempt material from the nonexempt material, and release the latter for inspection.
In an attempt to provide additional guidance to public agencies relative to a determination of what may properly be withheld under KRS 61.878(1)(l) and the attorney-client privilege found at KRE 503, this office subsequently observed:
We believe the distinction between confidential and nonconfidential matters drawn in In the Matter of Witnesses before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir. 1984) is instructive. Although the court recognized that information regarding fees is not generally protected by the attorney-client privilege, it also recognized that such records might contain information protected by the privilege. The court noted that billing sheets or time tickets "which indicate the nature of documents prepared, issues researched or matters discussed could reveal the substance of confidential discussions between attorney and client." Id. at p. 495. We believe that [an agency] need only permit inspection of records which describe, in general terms, the nature of the services rendered as, for example, "research," "witness interviews," "discussion with client." It may, of course, exercise its discretion in redacting any portion of its records which disclose substantive matters and litigation strategy. This resolution of the issue of the applicability of the attorney-client privilege to the requested records subserves both the agency's interest in protecting privileged information and the public's interest in monitoring the city's activities to insure that it is properly executing its statutory function and pursuing the public good. Kentucky Board of Examiners of Psychologists v. The Courier Journal and Louisville Times Co., Ky. 826 S.W.2d 324, 327 (1992).
OAG 92-92, p. 6.
We have reviewed the 153 pages of copies of invoices for legal services which the Board made available to Mr. Smith. Our review reveals that the redacted copies provide the name of the attorney, the name of the case or action involved, amount of time worked, the amount billed, and the general nature of the legal services provided, such as telephone conference, review of pleadings, preparation of pleadings, court appearances, depositions, and attending meetings. The Board redacted such things as the name of individuals with whom they communicated or discussed, subject matters discussed and reviewed, issues and cases researched. This is information which could possibly compromise the agency's case by giving its adversary insight into its attorneys' thought processes and legal strategy and could properly be classified as substantive legal matters protected by the attorney-client privilege and the work product doctrine.
We therefore conclude that the Board's response providing the redacted invoices for legal services to Mr. Smith, adequately described in general terms the nature of the services provided and the amounts charged for the legal services. We further conclude that the Board, 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. 05-ORD-029; 92-ORD-14; 92-ORD-92. Accordingly, we find that the Board's response in this regard did not violate the Open Records Act.
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.
Mike Smith177 West 4th StreetRussellville, KY 422276
Larry WilcuttSuperintendentElectric Plant BoardP. O. Box 418Russellville, KY 42276
Fred G. GreeneP.O. Box 490Russellville, KY 42276