Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Arena Authority violated the Open Records Act in denying W. W. Chilton's January 26, and February 16, 2009, requests for unredacted copies of Greenebaum Doll & McDonald draft work detail invoice records. For the reasons that follow, we find that although the Authority properly denied Mr. Chilton's request for unredacted copies of those records, it violated the Act in redacting some "descriptive portions of the disclosed billing records without particularized demonstration that each description is privileged. "
Commonwealth, Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008).
On January 15, 2009, the Authority released some 608 pages of Greenebaum billing records to Mr. Chilton in an attempt to comply with this office's decision in 09-ORD-002. 1 These records were reviewed and redacted prior to release. On January 21, 2009, the Authority redacted 195 pages of additional billing records that were subsequently located. These records were released without redaction. Shortly thereafter, Mr. Chilton submitted a request to the Authority for "unredacted copies of all the bills," asserting that the Authority "waived any attorney-client privilege with respect to the Greenebaum billing statements by releasing the unredacted statements." Alternatively, he argued the "initial redactions were excessive and unsupportable on their face."
Having reconsidered the initial redactions and subsequently "provid[ed] the requested invoices with fewer redactions, " the Authority reaffirmed its original position based on KRS 61.878(1)(l),
Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), and a series of open records decisions issued by this office. The Authority acknowledged disclosure of the 195 page unredacted invoice dated August 6, 2007, which had been inadvertently omitted from those originally released, explaining that it acted in "haste to respond to [Mr. Chilton's] request in a timely manner . . . prior to receiving the redacted copy from Greenebaum." Nevertheless, the Authority "maintain[ed] that each invoice is a separate communication" and that although it "waived the privilege for the invoice dated August 6, 2007, [this] did not constitute a blanket waiver for all other communications."
On appeal, Mr. Chilton asserts that the Authority "waived any claimed privilege when it produced some 195 pages of unredacted invoices, [and] there remains no operative exemption on which it can rely to deny access to the remaining unredacted invoices. " In support, he cites In re Powerhouse Licensing, 441 F.3d 467, 472 (6th Cir. 2006), for the proposition that, "When a client offers his or her attorney's testimony as to a specific communication to the attorney, 'the privilege is waived as to all communications to the attorney on the same matter.'" It is his position that "regardless of whether one invoice constitutes one communication as the Authority argues, it effectively waived the privilege as to all records and invoices when it produced the unredacted August 6, 2007, invoice. "
Relying on the language of KRE 509, the Authority disputes Mr. Chilton's position reasoning that a privilege holder waives the privilege only when he or she "voluntarily discloses or consents to disclosure of any significant part of the privileged matter. " The Authority characterizes that "privileged matter" as "the redacted portions of the previously disclosed billing statements," and concludes that "disclosure of other billing statements, whether redacted or otherwise, has no bearing whatsoever upon the privilege maintained within the redacted portions of the billing statements . . . ."
On March 27, 2009, this office requested that the Authority provide us with:
Both redacted and unredacted copies of the 608 pages of billing records released to Mr. Chilton following the issuance of 09-ORD-002, and any accompanying written explanation of these redactions as contemplated by Commonwealth, Cabinet for Health and Family Services v. Scorsone, [above at 330] (admonishing against 'blanket redaction of all descriptive portions of the disclosed billing records without particularized demonstration that each description is privileged' and approving in camera review of the records 'in accordance with the Open Records Act . . . [as] an excellent device for balancing the [agency's] interest in the confidentiality of privileged materials and the public interest in the disclosure of nonconfidential government records').
This request was submitted to the Authority pursuant to KRS 61.880(2)(c), 2 and was intended to facilitate our review of the issue on appeal.
At note 6 of 09-ORD-002, we declined to conduct an in camera inspection of the records for the Authority in advance of their disclosure for the purpose of approving the proposed redactions. We observed:
Not only is this the functional equivalent of a request that this office issue an advisory opinion on the Authority's proposed course of conduct, but, as the Authority correctly notes at page 7 of its supplemental response, such a review "must be informed by knowledge of the legal issues facing the Arena Authority, and sometimes, by research and analysis as to whether a privilege applies." This office has no knowledge of the legal issues facing the Authority and is not inclined to perform research for the Authority.
The concern expressed in note 6 is eliminated when we retroactively review the records in dispute on appeal pursuant to KRS 61.880(2)(c), as opposed to prospectively advising the agency on its contemplated course of action. Simply put, we are not approving what the Authority proposes to redact based on our limited knowledge of the legal issues, but reviewing what the Authority has redacted based on the Authority's knowledge of the legal issues.
Having reviewed the disputed billing records, we find that the Authority improperly redacted the 608 pages released to Mr. Chilton on January 15, masking both privileged and nonprivileged entries in a manner inconsistent with the rule that the attorney-client privilege "must be strictly construed and given no greater application than is necessary to further its objectives," R. Lawson, Kentucky Evidence Law Handbook § 5.10 at 232 (1993), citing
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). The Authority did not, however, entirely waive the privilege as to those records by releasing 195 additional pages, without redactions, on January 21. In so holding, we are guided by the express language of KRE 509, limiting waiver to instances in which the privilege holder discloses "any significant part of the privileged matter. " We are also guided by the paucity of direct legal authority in Kentucky for the position that disclosure of any privileged matter constitutes a waiver of all privileged matter. Finally we find persuasive the Authority's argument that Mr. Chilton's position is contrary to the letter and spirit of the Open Records Law insofar as it gives "agencies an incentive to disclose as little as possible in the fear that if they do disclose [privileged] information, it will in turn be used as a stick against them to force the disclosure of other actual privileged information. " We therefore restrict our analysis to the propriety of the Authority's redactions of the 608 pages of billing records released on January 15.
Our review of the disputed billing statements confirms Mr. Chilton's position that the Authority was overzealous, inconsistent, and often arbitrary in its redactions. As we noted at page 5 of 09-ORD-002:
[In Scorsone, above,] the court approved the position taken by this office in "several open records decisions . . . that 'a public agency must release the billing statements prepared by attorneys retained by the agency reflecting the general nature of legal services rendered, but may redact substantive matters protected by the attorney-client privilege,'" concluding that "the Attorney General's general statement of the law [is] correct" and rejecting "blanket redaction of all descriptive portions of . . . billing records without particularized demonstration that each description is privileged. "
Accord, 09-ORD-055. We thereafter quoted from the opinion:
The attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions. See KRE 503. [T]he burden of proof of demonstrating that a requested public record falls within the attorney-client privilege falls upon the [agency]. See KRS 61.882(3). [W]e cannot imagine that each and every description of services rendered contained in billing statements prepared by non-government lawyers . . . falls under the attorney-client privilege.
Scorsone at 329.
It is the decision of this office that the Authority chiefly erred in unnecessarily redacting the nonprivileged generalized descriptions of services rendered as opposed to substantive matters protected by the privilege. By way of example, we note that in OAG 92-92, this office quoted liberally from In the Matter of Witnesses before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir. 1984), employing the dichotomy between privileged and nonprivileged matters recognized in that case. The court determined that unfettered access to billing statements "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 495, but approved disclosure of those portions of the statements which described, in general terms, the nature of the services rendered, as, for example, "research," "witness interview," "discussion with client." This resolution of the access issue, 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." OAG 92-92, p. 4.
Applying this analysis to an appeal involving public access to billing statements initiated after Scorsone was issued, in 09-ORD-055, the Attorney General affirmed the agency's redactions. At page 7 of that decision, we reasoned:
[E]ach redacted "Statement of Services" reflects, in general terms, the nature of the services provided, such as, "Appear for/attend," "Communicate (other external)," "Communicate (with client)," "Communicate (in firm)," "Plan and prepare for," "Draft/revise," "Review," and "Research." Each monthly invoice also discloses a "Recapitulation" of billable hours, an itemized listing of related "Costs" (transcription, copying, online research, travel), the date of the service provided, the initials of the attorney, and the amount of time worked. [R]edacting information such as the names of individuals with whom the [agency attorney] communicated, the subject matter discussed, topics of research, etc., the disclosure of which "could possibly compromise the agency's [position] by providing 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 work product doctrine" constituted a proper exercise of the agency's discretion.
In the appeal now before us, the Authority cannot be said to have properly exercised this discretion.
Although we are statutorily foreclosed from disclosing the information redacted from the Authority's billing statements, we note that entire entries are redacted that include both privileged substantive matters and nonprivileged generalized descriptions of the nature of the services rendered, the latter including "research and analysis," "prepare," "revise," "edit," "review," "proof," "draft," "conference with," "email," "call," "meeting with," "finalize and forward," and "discussed." The same generalized descriptions are not redacted in other billing statement entries, suggesting a degree of inconsistency and, perhaps, arbitrariness. While we do not question the necessity of masking substantive legal matters, such as the issue researched, the subject of meetings and discussions, or the identity of individuals emailed or called, we find no support in existing authority for the redaction of generalized descriptions of the legal services rendered, especially in the absence of "particularized demonstration" that those entries, in their entirety, are privileged. We therefore believe it is incumbent on the Authority to review the disputed billing statements to insure that the privilege "is given no greater application than is necessary to further its objectives," Lawson, above at § 5.10, citing Schwimmer at 243, and to restore the improperly redacted information.
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.
Distributed to:
W. W. Chilton, IIIW. James HostHarold WorkmanMark F. Sommer
Footnotes
Footnotes
1 In 09-ORD-002, this office determined that the Authority improperly relied on KRS 61.878(1)(i) in withholding "work detail" supporting Greenebaum's billing statements after payment was made.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.