How to Protect Attorney-Fee Invoice Information Under Ohio's Public Records ActOctober 18, 2016
Public offices, such as city government and police, often retain outside legal counsel for advice and representation. After a firm submits its invoice to the public office for payment, the invoice, in part, becomes a public record. As with all public records, the invoice is subject to release if someone requests to look at it under Ohio’s Public Records Act, as outlined in Ohio Revised Code 149.43.
Attorney invoices typically include a brief narrative describing the service rendered. The narrative portion of an invoice might reveal litigation strategy or the nature of the advice provided by the attorney to public officials. Imagine a scenario in which a citizen or a member of the media submits a public records request for copies of billings received from outside counsel. Should the documents be released to the public? If so, can a portion of the document be redacted prior to release? This is especially important to consider because disclosure of sensitive, privileged information could be construed as a waiver of attorney-client privilege.
Ohio public records law exempts certain records from release, including trial preparation records1 and attorney-client privileged communications2. Despite these exemptions, under the law, an Ohio public office cannot refuse to release copies of outside-counsel invoices. Rather, all non-exempt portions of the requested documents, which contain exempt information, must be made available.3 Therefore, exempt information can be redacted on an attorney-fee invoice before releasing it. An attorney-fee invoice can include dates, times, names and descriptions of services provided. Only certain items on this type of invoice may be redacted as exempt from release under the law.
Fortunately, the Ohio Supreme Court offers guidance in State ex rel. Pietrangelo v. The City of Avon Lake.4 Below is a list of categories commonly found on attorney-fee invoices, along with the Ohio Supreme Court's most recent decision on which information can be redacted, or not.
Non-exempt information, which may not be redacted:
- Firm name5
- Invoice date6
- Matter/case names7
- Summary of dates, hours and rates for the billing period8
- Names of individual attorneys performing services9
- Expenses and disbursements10
Exempt information, which may be redacted:
- Narrative description of services11
- Specific, itemized dates, hours and rates accompanied by narrative descriptions12
Of course, public records laws vary from state to state and no two attorney-fee invoices are identical. Every public office should obtain professional legal advice tailored to their unique situation and jurisdiction, and prior to releasing any information that may be protected by attorney-client privilege. Failing to assert a privilege may result in a waiver, so it is imperative to proceed with caution and with professional legal guidance.
For more information, please contact Mr. Thomas R. Kendall, Esq. Mr. Kendall is an attorney who handles creditors' rights issues in the areas of commercial and consumer litigation, judgment collections and subrogation.
Disclaimer: This article is presented for informational purposes only. Transmission of this article does not create an attorney-client relationship, nor should this article be construed as providing legal advice.
1 R.C. 149.43(A)(4).
2 R.C. 149.43(A)(1)(v)( Incorporating the common-law and statutory privileges by reference)
3 R.C. 149.43(B)(1).
4 146 Ohio St. 3d 292, 2016-Ohio-2974, 55 N.E.3d 1091 (May 17, 2016).
5 Id. at ¶ 2, 17.
7 State ex rel. Anderson v. City of Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶15.
8 Id.; Pietrangelo, supra, at ¶ 5, 17.
9 Pietrangelo, supra, at ¶ 5, 17.
10 Pietrangelo, supra, at ¶ 2, 17.
11 State ex. rel. Dawson v. Bloom-Carroll Local School District, 131 Ohio St. 3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 28; Anderson, supra, ¶ 13; Pietrangelo, supra, ¶ 10.
12 In Pietrangelo, supra, at ¶ 17, the Court held that while a summary of fees during the billing period is non-exempt, specific dates, hours, and rates are “inextricably intertwined” with the exempt narrative of services and are exempt.
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