- How to Protect Attorney-Fee Invoice Information Under Ohio's Public Records Act
- November 3, 2016 | Author: Thomas R. Kendall
- Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Cincinnati Office
- 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
- Narrative description of services11
- Specific, itemized dates, hours and rates accompanied by narrative descriptions12
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.