Legal bills not exempt from public disclosure

From the Spring 2000 issue of The News Media & The Law, page 30.

A city’s legal bills are public records not covered by attorney-client privilege, a unanimous state Supreme Court ruled in late January.

Fighting a request from a Kansas City Star reporter, the city of Overland Park had claimed that the disclosure of billing records would reveal confidential attorney-client communications and work product, information that is exempt from under the Kansas Open Records Act. But the court said not all communications between an attorney and client are privileged; only documents that communicate legal advice may be kept secret.

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Kansas City Star reporter John Dvorak in 1997 asked the city of Overland Park for access to its legal bills from the private law firms it had employed the previous year. In September 1997 the city released the records but redacted descriptions of the type of legal services the firms had provided.

The newspaper’s attorney countered that the redactions were unwarranted, but the city attorney insisted that the records contained confidential information and would not be released in full. The city would provide only the most basic information contained on the bills: name of the law firm, name of the case, time spent on the case, the attorney’s fee, costs and total bill amount.

In March 1998, the newspaper sued under the Kansas Open Records Act in state court in Olathe to force Overland Park to turn over its law firm billing records. The city objected, claiming that exemptions to the open records law allowed it to keep all attorney-client records secret.

The court ruled in July 1998 that billing statements were not automatically covered by the attorney-client privilege exemption merely because they were from an attorney. Instead, the court ordered the city to detail the reasons for its use of exemptions as they had been applied to withhold specific information in individual records.

In what the city’s attorneys described in court filings as a “good faith” effort to comply with the court order, the city then submitted copies of the redacted documents and a log sheet to the court. The log sheet identified the exemptions the city claimed for each record but not specific exemptions justifying withholding of each piece of information.

The newspaper claimed that the city had not complied with the court’s order and so had waived any right to argue the billing statements were privileged. The newspaper asked the court to produce unredacted copies of all the requested billing statements.

In November 1998, the court ruled that the city had failed to satisfy the order. It had left the court guessing as to the contents of the documents and the appropriateness of the exemptions. When the city appealed, the case was transferred from the intermediate appeals court to the state’s Supreme Court in February 1998.

The city told the Supreme Court that all communications between a client and attorney are privileged and, therefore, exempt from disclosure under the open records law. It said granting access to the billing statements would thwart the policy behind the attorney-client privilege: To allow attorneys and their clients to communicate freely without fear that the information discussed could later be used against them.

The city also said it feared that the order requiring release of billing statements would constitute a waiver of the attorney-client privilege for other communications on the same subjects.

“Even a slight erosion of the bedrock on which the attorney-client privilege is based” will profoundly impact clients’ reliance on their lawyers, the city said.

The newspaper responded that requiring the city to release its billing statements was appropriate given the insufficiency of the city’s description of the withheld records. In any event, the privilege applies only to the confidential communications between a client and an attorney giving him legal advice, the newspaper argued. It was never intended to apply to billing statements.

The newspaper said public policy supported its position. The public has a strong interest in monitoring government expenses including legal expenses.

In January 2000, the Supreme Court ruled that the privilege did not apply to every attorney-client communication. Only communications in which an attorney conveys legal advice can be kept secret, the court ruled. Because the open records law mandates broad disclosure of public records and because the district court had not abused its discretion, the Supreme Court said it would not disturb the order requiring the city to release all of its legal billing records.