It is fairly common for public offices to receive public records requests for copies of their legal bills. How are you supposed to respond to these requests? We thought this would be a particularly opportune time to provide some guidance on this question. Why? Because during this past year, the Ohio Supreme Court has issued a trio of unanimous decisions dealing with requests for legal bills. These cases provide some fairly detailed guidance on how public offices should respond to such requests.
In November 2011, the Supreme Court addressed this question in State ex rel. Dawson v. Bloom Carroll Local School Dist., (2011), 131 Ohio St.3d 10, 2011 Ohio 6009, 959 N.E.2d 524. Dawson, a parent, had requested that a school district provide her with itemized invoices the district received from law firms representing the district. Like most legal bills, these invoices contained detailed descriptions of the legal services the firms had provided to the district.
Dawson also requested a copy of a letter from the district's insurance carrier appointing legal counsel and describing the perceived liabilities and exposures in a case in which she was involved. The district refused to provide the documents, claiming they were protected by attorney-client privilege. Instead, the district provided Dawson with a summary of the non-privileged information contained in the invoices. Dawson brought a mandamus action against the district seeking an order to obtain the unredacted documents.
In its decision, the Court sided with the district. First, the Court determined that the itemized legal bills were protected by the privilege:
The withheld records are either covered by the attorney-client privilege or so inextricably intertwined with the privileged materials as to also be exempt from disclosure. Therefore, the school district properly responded to Dawson's request for itemized invoices of law firms providing legal services to the district in matters involving Dawson and her children by providing her with summaries of the invoices including the attorney's name, the fee total, and the general matter involved.
Second, the Court held that the letter from the insurance company appointing legal counsel was also covered by attorney-client privilege. The insurance company stood in the shoes of the district when it hired legal counsel for the district. The letter establishing the attorney-client relationship was covered by the privilege. It was not subject to release pursuant to a public records request.
In its second case on this topic, State ex rel. McCaffrey v. Mahoning County Prosecutor’s Office (2012), 133 Ohio St. 3d 139, 2012 4246, 976 N.E.2d 877, the Court considered the prosecutor’s response to a public records request for, among other things, all of the records for the hours worked and duties performed by three attorneys in the prosecutor’s office between November 1, 2008, through July 28, 2010. In order to respond to this request, the office provided McCaffery with redacted copies of civil case logs for the three attorneys. Once again, the Court approved this approach, holding that, “Insofar as McCaffrey requested the duties performed by these attorneys, the narrative portions of respondents' opinion and miscellaneous logs were properly redacted based on attorney-client privilege.” Id. at ¶36.
The final case of the trio is State ex rel. Anderson v. City of Vermilion, Slip Op. No. 2012-Ohio-5320, in which a former mayor of Vermilion was concerned about the city’s expenditures for legal services and made a public records request for “all itemized billing statements” from legal firms serving the city for a four-month period. The city declined to release the records based on attorney-client privilege. As a result, the city did not provide Anderson with any information from the invoices. In this case, the Court determined the city had gone too far. Specifically, the Court found that the city was required to release certain non-privileged information that was contained in the invoices:
Under the Public Records Act, insofar as these itemized attorney-billing statements contain nonexempt information, e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services, they should have been disclosed to Anderson. . . If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt.
Id. at ¶14 (emphasis added) (citations omitted).
Taken together, these three cases provide a fairly clear picture of how to respond to a request for copies of invoices for legal services. Any narrative description of the work performed is covered by attorney-client privilege and should be redacted. This does not mean, however, that a public office can simply refuse to provide anything in response to a request.
Instead, the bills should be examined to determine if they contain any non-privileged materials, such as the general title of the matter being handled, the dates the services were performed, and the hours, rate and money charged for the services. If the invoices contain such information, the privileged material should be redacted.
The non-privileged information should be examined further to determine if another exception would require further redactions. For instance, a school district would be required to redact matter names that contain personally identifiable student information pursuant to FERPA and R.C. 3319.321. Any information that is not subject to the attorney-client privilege must be released to the public, along with citation to legal authority that justifies the redactions that have been made.
So, are legal bills “public records?” For the real “heart” of the information, the answer is still clearly “no.” But now we must also recognize that there is likely to be some information in that attorney bill that is not privileged, and therefore must be provided.