Request By:
Mr. Paul V. Guagliardo
Assistant Director of Law
City of Louisville, Department of Law
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Major, Assistant Attorney General
Mr. Brian L. Cullinan has appealed to the Attorney General pursuant to KRS 61.880, your partial denial of his August 30, 1991, open records request. Mr. Cullinan requested that your office provide copies of contracts and detailed monthly invoices submitted by the following vendors: Vendor #Res. #VendorDate2601R-78M. J. Morris 5/08/902829R-102Volleyball Connection 6/11/912644R-150RBC & Associates 8/14/902105R-166RBC & Associates 7/23/912105R-167RBC & Associates 7/23/912561R-303Greenebaum, Boone12/26/892561R-56Greenebaum, Boone 4/10/902561R-140Greenebaum, Boone 8/14/902561R-145Greenebaum, Boone 7/23/912035R-84Thomas Jarrell 5/22/902035R-151Thomas Jarrell 8/14/902035R-35Thomas Jarrell 3/13/912035R-116Thomas Jarrell 6/25/912035R-147Thomas Jarrell 7/23/91
After an exchange of correspondence, you partially denied Mr. Cullinan's request in a letter dated September 16, 1991, relying on KRS 61.878(1)(g), (h), and (j), and OAG 88-32. You explained that you were denying that portion of the request which pertained to the detailed monthly statements from attorneys Greenebaum, Boone and Tom Jarrell, since those invoices "list or describe specific actions taken, research done, and communications between the attorney and others in the course of providing legal services to the City." You agreed to provide Mr. Cullinan access to the "general monthly statements listing the hours spent by and fees paid to the attorneys."
In a subsequent letter to your office, Mr. Cullinan voiced his objections to the inadequacy of the records to which you afforded him access, and challenged your invocation of KRS 61.878(1)(g), (h) and (j) to authorize the withholding of the remaining records. He states that although your September 16, letter indicates that you will provide general monthly statements listing hours spent by and fees paid to attorneys, "only about half of the Tom Jarrell invoices include hours billed, and only one invoice from the Greenebaum, Boone firm contains anything resembling an hourly total (and it does not show any hourly rates)."
With respect to your denial of the remainder of his request, Mr. Cullinan observes:
I wish to know how my tax dollars are being spent. I fail to see the relevance of the Open Records exemptions on which you rely. KRS 61.878(1)(g) and (h) refer to preliminary drafts, notes, correspondence, memoranda or recommendations. Billing invoices are not preliminary drafts, notes, etc. I also fail to see the relevance of section (j) or OAG 88-32. This section has not been interpreted to say billing statements constitute legal advice for purposes of the attorney/client privilege. Nor does this material reveal the lawyer's mental processes or furnish information as to the content of any statements.
He notes that if, in fact, some of the information contained on the invoices is exempt, "KRS 61.878(4) requires the city to separate the exempted material from the non-exempted material."
Mr. Cullinan asks that we review your partial denial of his request to determine if you acted consistently with the Open Records Act. For the reasons set forth below, we conclude that you improperly denied that portion of Mr. Cullinan's request pertaining to billing invoices.
OPINION OF THE ATTORNEY GENERAL
Among the records which are excluded from the application of the Open Record Act, and subject to inspection only upon order of a court of competent jurisdiction are:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly.
This Office has recognized that since records which are privileged or which are the work product of an attorney in the course of advising a client are not discoverable under CR 26.02(1) and (3), they are exempt from public inspection under KRS 447.154 and KRS 61.878(1)(j). KRS 447.154 provides, in part, that no act of the General Assembly shall be construed to limit the right of the Court of Justice to promulgate rules. OAG 81-246; OAG 82-291; OAG 82-169; OAG 82-295; OAG 85-20; OAG 87-28: OAG 88-25; OAG 88-32; OAG 88-59; OAG 91-53; OAG 91-108.
CR 26.02(1) provides that a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." (Emphasis added.) Attorney/client communications are ordinarily privileged and therefore protected from discovery. The attorney client privilege is codified at KRS 421.210(4), which states:
No attorney shall testify concerning a communication made to him, in his professional character, by his client, or his advice thereon, without the client's consent.
This provision has been interpreted to mean that any communication between an attorney and his or her client is privileged, if the communication is made in confidence, while the attorney is acting in a legal capacity, and relates to the purpose for which legal representation is sought by the client. Lawson, Kentucky Evidence Law Handbook, § 5.00, 2nd ed., 1984.
The Attorney General's Office has also recognized that an agency cannot withhold every document which relates to a particular matter under KRS 61.878(1)(j) and the attorney client privilege simply because it is represented by an attorney, in that matter. OAG 88-25. Only those documents which are actually generated in the course of the attorney client relationship, and therefore fall squarely within the privilege, may be withheld from public inspection pursuant to the Kentucky Rules of Civil Procedure, CR 26.02(1), KRS 447.154 and KRS 61.878(1)(j).
In OAG 82-169, this Office addressed the question whether the Jefferson County Public Schools could withhold, inter alia, Board records of payments to its attorney, and bills and statements submitted to the Board by its attorney, under KRS 61.878(1)(j) and the attorney client privilege. There we concluded that although generally the contracts, vouchers, and other business records of a public agency are open to public inspection under the Open Records Act, because the Board was engaged in litigation and would be disadvantaged in that law suit by the release of the requested records, they could be withheld pursuant to KRS 61.878(1)(f) until the litigation was concluded. This Office implicitly rejected the argument that such records were protected by the attorney client privilege and KRS 61.878(1)(j). We affirmed this position in OAG 85-91, where we held that a public agency's denial of a request to inspect the contracts, retainer agreements, and other documents pertaining to the relationship between the agency and its attorneys was improper. In that opinion we expressly stated that failure to disclose records of payments, other than as contained in regular income and accounting records, was improper. OAG 85-91, at p. 3. We believe that OAG 82-169 and OAG 85-91 have a direct bearing on this appeal, and that the authority you cite, OAG 88-32, which pertains to the minutes of a personnel committee meeting, is inapposite.
The Kentucky Supreme Court has recognized that communications relating to the fiscal arrangements between an attorney and his client do not fall within the attorney client privilege. In
Kentucky-Virginia Stages, Inc. v. Tackett, Ky., 182 S.W.2d 226 (1944), the court held that the terms and scope of employment are not communications made to an attorney in his professional character by the client. An attorney does not act as a legal adviser when communicating with the client about his fee, but instead acts in his own interest, representing himself exclusively. Tackett, supra at 230. This reasoning was adopted in
United States v. Haddad, 527 F.2d 537 (6th Cir. 1975), wherein the Sixth Circuit held that amounts paid or owed to an attorney by his client are generally not within the attorney client privilege.
Although it does not appear that either the Sixth Circuit or a Kentucky court has had occasion to address the question whether the underlying bills are privileged, in In Matter of Wash, 623 F.2d 489 (7th Cir. 1980), the Seventh Circuit held that because matters involving the receipt of fees from a client and who paid the fees are not privileged, a grand jury was entitled to review the ledgers, bills, time records, and retainer agreements prepared by an attorney.
We are not unmindful that these records may disclose substantive matters pertaining to the rendition of legal services. As the courts have noted, "[T]he only questions about substantive matters that must be answered are questions about the nature of the legal services rendered. "
United States v. Long, 328 F.Supp. 233, 236 (E.D. Mo. 1971). In Long, supra at 236, the court observed:
These questions require only a response, such as 'litigation,' 'drafting contracts,' 'tax advice,' or 'work on domestic relations problems of client.' Specific factual inquiry into the communications between attorney and client beyond this is privileged, such as what is said by the client or lawyer in relation to the problem.
See also,
Colton v. United States, 306 F.2d 633 (2d Cir. 1962).
United States v. Cromer, 483 F.2d 99 (9th Cir. 1973). Thus, records which reflect the general nature of services rendered are not protected by the attorney client privilege. Nor do we believe that such records are exempt under the exception for preliminary documents found at KRS 61.878(1)(g) and (h). Only those records which disclose communications by the client or attorney in relation to the specific matter for which the attorney was retained can be withheld from public inspection.
These 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), the exempt material should be separated from the non-exempt materials, and the non-exempt materials released for public inspection.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Brian Cullinan. The City of Louisville may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).