Open records request and privileged documents: COMMONWEALTH OF KY V. SCORSONE (COA 1/18/2008)

GOVERNMENT:  Open records request
EVIDENCE:  Attorney client privilege
DATE RENDERED: 01/18/2008

In this open-records case, representatives from various agencies in Governor Fletcher’s Administration appeal the decision of the Franklin Circuit Court regarding disclosure of attorney billing statements prepared by non-government lawyers retained by the Fletcher Administration in connection with the Attorney General’s recent investigation of the Administration’s hiring practices. For the reasons set forth herein, we affirm the decision of the circuit court. In this case, Senator Ernesto Scorsone of Lexington issued open-records requests to various agencies within the Fletcher Administration seeking all attorney billing statements from non-government lawyers retained by the Administration in connection with the Attorney General’s recent investigation of the Fletcher Administration’s hiring practices. Senator Scorsone’s request sought “the date of each service performed, a description of the service, the identity of the attorney performing such 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 their services.”

The Fletcher Administration partially complied with Senator Scorsone’s request by tendering its attorney billing statements relating to the investigation, but redacting from them the descriptions of the particular services rendered on the grounds that they are protected by attorney-client privilege. Dissatisfied with the Administration’s redactions, Senator Scorsone appealed to the Attorney General. The Attorney General rendered an open records decision ruling that the Fletcher Administration’s blanket redaction of descriptions of particular services rendered from the billing statements was improper. The Attorney General ruled that redaction is only proper where a particular description of a service rendered would disclose privileged matters.

In turn, the Fletcher Administration unsuccessfully appealed to Franklin circuit court, which generally agreed with the Attorney General’s opinion. The circuit court, however, additionally ruled that, when the Administration was in doubt whether a particular description contained protected material, the description in question should be submitted to the circuit court for an in camera review.

Finally, the circuit court also awarded attorney fees to Senator Scorsone on the ground that the Fletcher Administration’s redactions had been “willful.”

The primary issue presented here is to what extent, if any, must descriptions of particular legal services rendered to the Fletcher Administration by non-government counsel be disclosed as open records

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 Administration. 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 non-government lawyers during the Attorney General’s investigation falls under the attorney-client privilege

Thus, the COA found the Attorney General and the circuit court are both correct in rejecting the Administration’s blanket redaction of all descriptive portions of the disclosed billing records without particularized demonstration that each description is privileged. We further find that the circuit court’s decision to allow the Administration to tender those portions of the billing records it believes to be privileged for in camera review to be in accordance with the Open Records Act and an excellent device for balancing the Administration’s interest in the confidentiality of privileged materials and the public interest in the disclosure of nonconfidential government records. Therefore, we affirm the circuit court’s decision regarding disclosure. Although the COA did affirm the circuit court’s disclosure ruling, it reversed its award of attorney’s fees to appellee.

Because the attorney-client privilege was favored by the circuit court to be a valid exception to at least a portion of the billings records, and because the circuit court’s in camera review solution appears to be novel and therefore not readily available to appellants at the time of appellee’s record request, the circuit court erred in finding that appellant willfully withheld records in violation of KRS 61.870 to 61.884. Accordingly, we hold each party should bear its own costs of litigation in this matter.

Michael Stevens

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