ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Itemized billing statement submitted by town attorney considered official record subject to mandatory disclosure. Specific entries referring to excepted matters may be deleted prior to disclosure; reasonable charges for deletion of entries.

November 21, 1988

The Honorable Raymond R. Guest, Jr.
Member, House of Delegates

87-88 30

You ask whether an itemized billing statement submitted to town officials by a town attorney is an official record subject to mandatory disclosure under The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act").

I. Facts

The Town of Front Royal (the "Town") contracts with an attorney (the "Town attorney") to provide legal services for the Town. The Town attorney is an independent contractor and is not a Town employee. The Town attorney's responsibilities include the prosecution of alleged criminal violations of Town ordinances, in addition to the representation of the Town in civil matters. Each month the Town attorney submits an itemized billing statement for the services he has rendered during the month on behalf of the Town. This itemized statement includes a daily log of his activities. Many of these log entries are general in nature, but a number of entries are specific and refer to police investigations, criminal prosecutions, civil litigation, victim-witness interviews, personnel matters, and other matters discussed in executive session.

The Town has received a request to inspect the monthly itemized billing statements of the Town attorney. Town officials do not object to disclosing the number of hours worked and the dollar amounts billed by the Town attorney, but feel that the disclosure of the itemized billing statement with the daily activity log would violate the Town's attorney-client privilege and also would be excepted by §2.1-342(B)(1), (5), (6), (12), or (23) from the disclosure requirements of the Act. Town officials are concerned about the disclosure of victim and witness identities, criminal investigations, executive session discussions, and the course of litigation involving the Town. Town officials suggest that editing the daily activity logs would be difficult and time-consuming, and would be tantamount to disclosing edited attorney memoranda.

II. Applicable Statutes

Section 2.1-342(A) provides, in part, that "[e]xcept as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this Commonwealth during the regular office hours of the custodian of such records." The term "official records" is broadly defined in §2.1-341(b).

Certain statutory exceptions to the mandatory disclosure requirement of §2.1-342(A) are enumerated in §2.1-342(B). Among the types of official records excepted from mandatory disclosure are: (1) memoranda, correspondence, evidence and complaints related to criminal investigations (§ 2.1-342(B)(1)); (2) writings protected by the attorney-client privilege (§ 2.1-342(B)(5)); (3) memoranda, working papers and records compiled specifically for use in litigation (§ 2.1-342(B)(6)); (4) memoranda, legal opinions, working papers and records compiled exclusively for executive or closed meetings (§ 2.1-342(B)(12)); and (5) confidential records, including victim identity, provided to or obtained by staff in a rape crisis center or a program for battered spouses (§ 2.1-342(B)(23)). Section 2.1-340.1 requires that exceptions to the mandatory disclosure requirement be narrowly construed.

III. Attorney-Client Privilege Exception Generally Does Not Apply to Attorney Billing Statement; Exception Authorizes Deletion of Specific Confidential Communication

The itemized billing statement submitted to Town officials by the Town attorney clearly is an "official record," as that term is defined in §2.1-341(b). Section 2.1-342(A), therefore, requires that the billing statement be disclosed unless one of the exceptions in §2.1-342(B) applies.

The only exception that could apply to the entire billing statement is the attorney-client privilege exception in §2.1-342(B)(5). You state that many of the entries included in the billing statements are general references to legal services rendered but that some entries are more specific.¹

The amount of a fee charged by an attorney to a client generally is not a matter to which the attorney-client privilege attaches. In Re Special Grand Jury No. 81-1, 676 F.2d 1005, 1009 (4th Cir. 1982); 81 Am. Jur. 2d Witnesses 215 (1976). See also Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975) (legal fees paid by public hospital subject to disclosure under applicable state public records disclosure statute; attorney- client privilege held not to apply). Federal courts, interpreting an analogous attorney-client document exception to the Federal Freedom of Information Act,² generally have held that the privilege does not apply to documents that do not contain an attorney's analytical work product or legal advice, or do not reflect confidential communications from a government client to the attorney. See Annotation, Freedom of Information Act Exemption (5 USCS 552(b)(5)) for Inter-Agency and Intra-Agency Memorandums or Letters as Applicable to Communications to or from Attorneys for the Government, 54 A.L.R. Fed. 280, 300-03 (1981). In a closely analogous case to the facts you present, the attorney-client privilege was held not to apply to an itemized billing statement of a municipal attorney sought under the public records disclosure statute of Missouri. See Tipton v. Barton, 747 S.W.2d 325 (Mo. App. 1988).

The public policy underlying the attorney-client privilege is to ensure that the client is free to make a full, complete and accurate disclosure of all facts unencumbered by fear that the client's disclosure will be used or divulged by the attorney or by fear of disclosure by any legal process. Seventh District Committee v. Gunter, 212 Va. 278, 286-87, 183 S.E.2d 713, 719 (1971). In the facts you present, the disclosure of the itemized billing statements generally would not include matters communicated in confidence to the Town attorney. Considering all of the above and giving the required narrow construction to §2.1-342(B)(5), it is my opinion that the attorney-client privilege exception does not apply to the itemized billing statements in question. It is also my opinion that isolated entries which may include matters properly within the scope of an exception in the Act do not operate to except an entire record from the mandatory disclosure requirement of §2.1-342(A). If any entry in the itemized billing statement refers to, or reflects the content of, confidential communications between the Town attorney and Town officials, it except the billing statements from the mandatory disclosure requirement of the Act.

Section 2.1-342(B)(1) excepts certain types of records related to criminal investigations. If specific entries discuss specific criminal investigatory matters, including victim or witness identities, it is my opinion that those entries may be deleted from the billing statements prior to disclosure. Compare Lineberry Opinion, supra; 1980-1981 Att'y Gen. Ann. Rep. 392.

Section 2.1-342(B)(6) excepts certain records compiled specifically for use in litigation. Section 2.1-342(B)(6) does not require that records be prepared exclusively for use in litigation but such records must be compiled specifically for use in litigation. See 1986-1987 Att'y Gen. Ann. Rep. 28. In this instance, a billing statement entry may refer to litigation matters involving the Town. Even with such references, you present no facts that the billing statement was prepared for use in litigation; you state in your inquiry that the billing statement only reflects the litigation activities of the Town attorney for billing purposes. It is my opinion, therefore, that §2.1-342(B)(6) does not apply to except the billing statements from the mandatory disclosure requirement of §2.1-342(A).³

It is further my opinion that §2.1-342(B)(12) does not apply to the billing statements because these statements were not compiled exclusively for use in executive or closed meetings. The mere reference to topics that properly may have been the subject of a closed meeting does not mean the billing statement was prepared exclusively for use in the closed meeting. Similarly, §2.1-342(B)(23) applies only to confidential records provided to, or obtained by, staff in a rape crisis center or a program for battered spouses. By the express language of §2.1-342(B)(23), the exception would not apply to the itemized billing statements in question.

Town officials also express their concern that editing the itemized billing statements would be difficult and time- consuming. Section 2.1-342(A) authorizes public bodies subject to the Act to make reasonable charges for copying and search time expended in supplying records under the Act. In my opinion, this provision of §2.1-342(A) authorizes Town officials to make reasonable charges, not exceeding the actual cost to the Town, to delete entries from the itemized billing statements that may be excepted by §2.1-342(B)(1) or (5). See 1983-1984 Att'y Gen. Ann. Rep. 436.

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Footnotes:

1. I assume for purposes of this Opinion that the billing statement does not contain the analytical work product of the Town attorney, any information on matters given to the Town attorney in confidence by his client, or any legal advice rendered to Town officials. If such material is contained in the billing statement, I conclude below that this material may be deleted prior to disclosure. See supra Part III, para. 4.

2. 5 U.S.C.A. §552(b)(5) (West 1977).

3. Litigation may be pending in which attorney's fees are sought by the Town. Depending upon the facts, the Town attorney's billing records then may be "compiled specifically for use in litigation" and the exception in §2.1-342(B)(6) may apply to a request for these records. These facts, however, are not present in your inquiry.