Obtaining Legal Records of a Public Agency

Obtaining Legal Records of a Public Agency

Q: I have requested the list of legal expenses, by attorney, billing statements and /or invoices by case or project from the City and Redevelopment Agency.  I did not ask for any other information about any of the litigation or project.

They took over a month to provide me with a ledger from the finance department with a listing of expenses only with just 3 of over 100 pages showing the case or project information.

I sent another letter stating that the information was incomplete.  It took the city another month to respond.  Now they are saying that the billing statements and invoices are protected by privilege and are not subject to disclosure.

They are citing 6254(k) and are claiming that the billing statements and invoices are work product and are protected by the attorney-client statutes.

A: Section 6254(k) is the exemption to the Public Records Act for records that are privileged under some state or federal law.  However, for the most part the attorneys’ billing records are not privileged.

While no published California state court has addressed the question directly, the state and federal courts that have addressed the issue have held that “all narrative statements in attorney fee statements are not per se privileged.”  Cypress Media, Inc. v. City of Overland Park, 997 P.2d 681, 691 (Kan. 2000).  As the Kansas Supreme Court explained in rejecting the privilege argument, “Where the narrative descriptions in billing statements provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity, they are not privileged.”

The federal courts in California and many other courts have taken the same position.  See, e.g., Clarke v. American Commerce National Bank, 974 F.2d 127, 129-30 (9th Cir. 1992) (ordering party to disclose unredacted fee statements because “the general nature of services performed … is not privileged” as a confidential attorney-client communication); City Pages v. State of Minnesota, 655 N.W.2d 839, 844-46 (Minn. App. 2003) (billing records are not protected in their entirety by the attorney-client or work product privileges); Huron Restoration, Inc. v. Board of Control of Eastern Michigan University, 1999 WL 22455136 at *2 (Mich. App. 1999) (“a bill for legal services … is only protected [by the attorney-client privilege] to the extent that it contains confidential client information or the opinions of counsel”); Tipton v. Barton, 747 S.W.2d 325, 331-32 (Mo. App. 1988) (legal bills that merely identify the nature of an attorney’s activities “are extraneous to legal advice or work product” and are thus not privileged as attorney-client communications or work product).

In Hearst Communications, Inc. v. Kelso, Case No. Case No. 03 CS 00819, the Sacramento Superior Court in July 2003 granted our motion for copies of an outside law firm’s bills (in the amount of $12 million) for defending a state agency in litigation that included a description of the services rendered, redacted only to the extent that it contains confidential information communicated by the client or the legal opinions, conclusions or theories of the attorneys.   There was no appeal, and thus no published decision, because the state complied with the court’s order.