Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Manchester violated the Open Records Act in denying Cassidy R. Rosenthal's February 15, 2013, request for:
1. All invoices, bills, and related documents related to former Mayor Carmen Lewis's defense in [pending litigation arising from a contract dispute involving the city, Mayor Lewis, and Ms. Rosenthal's client, EA Partners, PLC, as well as a subcontractor to EA Partners] that have been transmitted to the city[;]
2. All documents evidencing payment made to former Mayor Carmen Lewis's counsel, Bridget Dunaway, from the city related to Carmen Lewis defense in the above referenced matters.
The city first denied Ms. Rosenthal's request under authority of KRS 61.878(1)(l) 1 and Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), asserting that the information sought is "protected by the joint interest and attorney-client privileges." The city later denied the request under authority of KRS 61.878(1), 2 asserting that the purpose of the referenced provision "is to prevent litigants from using the Open Records Act to avoid civil discovery rules, which is what [Ms. Rosenthal] is attempting to do in this instance." We find neither of the city's arguments persuasive.
Both the courts and this office have determined that attorney billing records are not shielded from disclosure by the attorney-client privilege. In Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. App. 2008), the Kentucky Court of Appeals "gave great weight to" open records decisions (ORD's) issued by the Attorney General "indicating 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.'" There, the agencies resisting full disclosure released the billing records but redacted the description of the particular services rendered under ostensible authority of the attorney-client privilege. The court rejected the agencies' reliance on the privilege, opining:
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 communications must be confidential, relate to the rendition of legal services, and not fall under certain exceptions. See KRE 503. In the case at bar, the burden of proof of demonstrating that a requested public record falls within the attorney-client privilege falls upon the [agencies]. See KRS 61.882(3). And, like the Attorney General and the circuit court before us, we cannot imagine that each and every description of services rendered contained in billing statements prepared by nongovernment lawyers . . . falls under the attorney-client privilege.
Id. at 330.
The city's reliance on Hahn , above, is misplaced. That case did not involve access to attorney billing records but instead involved access to emails concerning university counsel's "legal opinion with respect to pending litigation. " Hahn at 773. The emails "were sent by University counsel to the Chairman and Business Manager of the Psychiatry Department where [the requester] was employed . . .[, both of whom] qualified as 'representatives of the client' [within the meaning of KRE 503(a)(2)(B), and a] review of the documents demonstrated that the communications were made for the purpose of providing legal services to the University." Hahn at 775, 776. Against the requester's claim that "the University was lax and unprofessional in taking proper precautions to secure or maintain the confidentiality of the communications," Hahn at 776, the court confirmed that confidentiality was observed in their transmission, and concluded that "the disputed communications are protected by the attorney-client privilege and that the explicit provisions of KRS 61.878 protect the documents containing these privileged communications from compulsory disclosure. " Id. at 776. In Scorsone , above, the court distinguished such records from attorney billing records, emphasizing the "public's interest in the disclosure of nonconfidential government records." Scorsone at 330. The original argument advanced by the City of Manchester as the basis for denial therefore finds no support in the law.
Nor does its argument that KRS 61.878(1) authorizes nondisclosure of the billing records. As noted, that provision states that "no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. " In Department of Revenue, Finance and Administration Cabinet v. Wyrick , the Kentucky Supreme Court declared that KRS 61.878(1):
is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n). It is not an exception to an agency's duty to disclose nonexempted records. And it does not allow a court to prevent disclosure of records available to the general public simply because the requesting party is involved in litigation against a public agency.
Wyrick at 714 (emphasis in original). Continuing, the Court observed:
In evaluating an open records request, the test is as follows. If the requested materials are not specifically excluded from disclosure (under KRS 61.878(1)(a)-(n), or other applicable statutes), then the public agency must provide the materials. If one of the fourteen exemptions applies, then the public agency should deny the request. However, a court of competent jurisdiction, upon request, can nevertheless grant disclosure of any document the agency refused to produce, with one qualification: if the document "pertain[s] to civil litigation" the court cannot order disclosure "beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. "
Id.
In so holding, the Court echoed an earlier opinion:
[KRS 61.878(1)] does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order. The gist of this wording is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records , to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pretrial discovery. Any other interpretation would allow a nonparty . . . to obtain records not excepted, while a party before an administrative agency could not obtain these same nonexempted records because administrative agencies are generally not subject to pretrial discovery. This would bring about an absurd or unreasonable result which cannot be fostered by the courts. The Legislature clearly intended to grant any member of the public as much right to access to information as the next.
Kentucky Lottery Corporation v. Stewart 41 S.W.3d 860, 863 (Ky. App. 2001) cited in Wyrick at 714 (footnote omitted and emphasis in original); accord, Department of Corrections v. Courier-Journal & Louisville Times, 914 S.W.2d 349 (Ky. App. 1996).
In Stewart , above, the court acknowledged a line of open records decisions of the Attorney General dating back to 1982 in which this office determined that "[a]lthough there is litigation in the background . . ., the requester. . . stands in relationship to the agency under the Open Records Law as any other person," 3 and that:
Inspection of public records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880. 4
In short, there is no legal basis for denying an open records request for a nonexempt public record simply because the requester, or in this case an attorney representing the requester, is a party to civil litigation with the public agency from which the nonexempt public records are sought unless the requested records would not be available to the requester/ party on a request for discovery under the Rules of Civil Procedure governing pre-trial discovery.
Based on the clear statement of law found in Scorsone , above, we hold that the billing records to which Ms. Rosenthal requested access are nonexempt public records which she, and the public generally, are entitled to inspect and copy after substantive legal matters are redacted. Although this office has, on occasion, declined jurisdiction where a requester submitted simultaneous requests for review of the same open records denial to the Attorney General and the courts, 5 the court's review in the instant appeal is confined to the scope of discovery in the underlying litigation and Ms. Rosenthal's rights under the Open Records Act are not suspended while the court considers the discovery dispute.
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:
Cassidy Ruschell RosenthalGeorge SaylorR. Scott MaddenJames T. Gilbert
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
2 KRS 61.878(1) provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery[.]
3 OAG 82-169, p. 2 cited in Stewart , above, at note 15.
4 OAG 89-65, p. 3 cited in Stewart , above, at note 16.
5 See, e.g., OAG 88-78; 93-OMD-81; 97-ORD-73; 03-ORD-238; 07-ORD-194; 11-ORD-192 ("where the issue before the circuit court is whether disputed records must be made available for inspection under the Open Records Act, the court's authority to substantively determine [the] open records question' clearly supersedes that of the Attorney General").