Request By:
Senator Ernesto Scorsone
State Senate
Capitol Building
700 Capitol Avenue
Frankfort, KY 40601Secretary James Holsinger
Cabinet for Health and Family Services
275 E. Main Street
Frankfort, KY 40621David E. Fleenor
General Counsel
Cabinet for Health and Family Services
275 E. Main Street 5WA
Frankfort, KY 40621
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 Cabinet for Health and Family Services violated the Open Records Act in partially denying Senator Ernesto Scorsone's request for copies of records reflecting the bills and statements of law firms representing the Cabinet in the investigation of its hiring practices. We conclude that the Cabinet's blanket denial of that portion of Senator Scorsone's request for records reflecting a description of each service provided by the law firms violated the Act.
By letter dated August 24, 2005, Senator Scorsone submitted the following request to the Cabinet:
Pursuant to the Open Records Act, KRS 61.870 et seq., I respectfully request any and all documents that reflect bills and statements submitted to the Cabinet by the law firm Greenebaum Doll and McDonald, or any other law firm , from April 1, 2005, to present, which relate to the investigation of hiring practices within the merit system being conducted by the Office of the Attorney General.
Such documents should include, at a minimum, the date of each service performed, a description of each service, the identity of the attorney performing each service, the hourly rate charged for that attorney, the time spent by that attorney on that service, any reimbursable expenses, total amounts incurred and total amounts due for the services.
David E. Fleenor, General Counsel, responding on behalf of the Cabinet, advised:
We are denying your request as it relates to billing statements which may list or describe an itemization of services that include specific actions taken, research done, as well as communications between an attorney providing services and others in the course of rendering legal services in the aforementioned investigation. As you know, this information is exempt from disclosure pursuant to the attorney-client privilege, KRS 61.878. See also Hahn v. University of Louisville, 80 S.W.3d 771 (2002). However, as a courtesy to you, we are providing the bills with the billing services redacted.
By letter dated September 20, 2005, Senator Scorsone initiated the instant appeal.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Fleenor provided this office with a response to the issues raised in the appeal. In his response, he explained, in part:
. . . The billing statements provided the Senator contained the date of service, the initials of the attorney or paralegal providing service or advice, the number of hours worked, the rate of hourly payment, and the amount charged. Redacted from the bill is any description of the work done for the Cabinet by the counsel or paralegal whose time is billed.
. . . Even when deemed available for public inspection, availability is conditioned upon conclusion of the matter on which legal advice is given and representation is provided. See id . While the Cabinet is a public agency accountable for the expenditure of public funds, it does not believe it is compelled to compromise attorney-client privileged communications long recognized as confidential by release of such information for public display, especially while the matters upon which advice is given and representation provided are pending before an active empanelled grand jury.
. . . In the matter of Senator Scorsone's appeal, release of the description of the substantive work done in representing the agency and providing the agency legal advice to the Senator and inevitably to the public would significantly compromise the ability of the agency to properly and completely respond to the grand jury based upon the legal advice of counsel.
For the reasons that follow, we conclude that the Cabinet's blanket denial of that portion of Senator Scorsone's request for records reflecting a description of each service provided by the law firms constituted a violation of the Open Records Act.
This office has long recognized and made clear its position on the duty of a public agency to disclose invoices generally, and attorney billing statements specifically. A public agency must release billing statements prepared by the attorneys retained by the agency reflecting the general nature of the legal services rendered, but may redact substantive matters protected by the attorney-client privilege. OAG 82-169; OAG 85-91; 92-ORD-1024; 93-ORD-2; 93-ORD-58; 97-ORD-125; 01-ORD-56; 03-ORD-237; 04-ORD-030; 05-ORD-029; and 05-ORD 049. For example, in 93-ORD-58, we analyzed the agency's obligation to release various records generated in the course of litigation. At page 3, we observed:
The public is . . . entitled to review the contracts, vouchers, and other business records of a public agency, including records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys. Should these invoices and billing statements disclose substantive legal matters protected by the attorney client privilege, and exempt under KRS 61.878(1)[(l)], the exempt material should be separated by the nonexempt material, and the nonexempt material released for inspection. OAG 92-14; OAG 92-92.
In 01-ORD-56, in discussing redaction of portions of attorney billing records, this office stated, at pages 3-5:
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 agency] 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:
OAG 92-92, p. 6.
In OAG 92-92, we also declined to adopt a rule of blanket exclusion of information from attorney billing statements, stating that "information about attorney fees is privileged only if its disclosure would reveal confidential communications between the attorney and client."
In 04-ORD-187, we held that the Cabinet erred in adopting a policy of blanket exclusion relative to responsive e-mails and any unidentified responsive record on the basis of the attorney-client privilege. In reaching this conclusion, we stated:
In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals has observed:
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 00-ORD-10, p. 10. Expanding upon this view, the Attorney General has consistently held:
97-ORD-41, p. 6; 00-ORD-10, p. 10. In that decision, the Attorney General suggested that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal,' and deny access on the basis of KRS 61.878(1)(l) and KRE 503 as privileged lawyer client communication which was not disclosed to third persons." Id., p. 7; 00-ORD-10, p. 10. More generally, the Attorney General has said:
00-ORD-10, pp. 10, 11, citing 95-ORD-61, p. 2.
The billing statements provided to Senator Scorsone contained the date of service, the initials of the attorney or paralegal providing service or advice, the number of hours worked, the rate of hourly payment, and the amount charged. However, the Cabinet redacted from the billing statement all description of the work done for it by the law firms. As noted above, the general rule is that a public agency must release billing statements prepared by attorneys retained by the agency reflecting the general nature of the legal services rendered, but may redact substantive matters protected by the attorney-client privilege. All narrative statements in an attorney billing statement are not per se privileged under the attorney-client privilege. Under the Open Records Act, the public agency claiming the attorney-client privilege bears the burden of showing its application to particular narrative statements in the billing records. The Cabinet's blanket redaction of all description of each service provided by the retained law firms does not meet this burden. The privilege "must be strictly construed and given no greater application than is necessary to further its objectives." See 97-ORD-127, at page 2, citing Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3d ed 1993). Accordingly, we conclude that the Cabinet's blanket redaction of that portion of billing records reflecting a description of each service provided by the law firms violated the Open Records Act. Consistent with the guidance of this decision, the Cabinet should provide Senator Scorsone with copies of the requested billing statements reflecting the general nature of the services provided, but may redact only those substantive matters protected by the attorney-client privilege.
Moreover, we do not agree with the Cabinet's position that availability of the billing statements are "conditioned upon conclusion of the matter on which legal advice is given and representation is provided." This office has held that attorney billing records are privileged only if their disclosure would reveal confidential communications between the attorney and client and should be available for inspection, subject to possible redactions discussed above, even during the existence of pending litigation. OAG 92-92; OAG 92-14; 95-ORD-18; 03-ORD-237.
Finally, in its initial response, the Cabinet advised Senator Scorsone that it had no documents responsive to his request for billing statements with respect to the merit system investigation, as the agency had not yet received invoices for that investigation. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The Cabinet properly discharged its duty under the Open Records Act by affirmatively so advising and explaining why the requested records did not yet exist. 99-ORD-150. Accordingly, we find no violation of the Act in this regard.
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.