May 17 , 2004

Ms. Brenda Salmon Knight
Suffolk, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence of March 1, 2004.

Dear Ms. Knight:

You have asked a question concerning access to records concerning a private attorney hired by the City of Suffolk ("the City") under the Virginia Freedom of Information Act (FOIA).

You indicate that on January 6, 2004, you requested a copy of all records regarding the City's hiring of Mr. Raymond L. Hogge, Jr., Esq. as outside counsel concerning a lawsuit you are considering filing against the City on a matter unrelated to FOIA. You also requested information concerning the City's process in authorizing the hiring of outside counsel, and specifically who authorized the funds to hire Mr. Hogge. Finally, you requested disclosure of the fee charged by Mr. Hogge to the City for his services. The City responded, in writing, that to the extent that any of the requested records existed, it was electing to withhold them from disclosure. The City cited exemptions found in § 2.2-3705 of the Code of Virginia for records subject to attorney-client privilege, work product compiled specifically for use in litigation or an active administrative investigation, records compiled specifically for use in closed session, and records of internal investigations of employment discrimination complaints. The City also stated that no documents existed relating to the City's practices in retaining outside counsel.

You indicate that on January 15, 2004, you sent a follow-up letter to the City objecting to its response generally, and again specifically asked about the costs incurred by the City to hire outside counsel. You stated that if Mr. Hogge had not yet submitted a bill to the City, you would accept a verbal answer as to the fees. Having received no response, you e-mailed the City on February 6, 2004 inquiring as to the status of your request. On February 24, 2004, the City responded that it did not perceive your second letter as a FOIA request, but as an objection to the City's initial response. The City's letter also stated that it stood by its initial response, and that part of your request asked for answers to questions for which no documentation existed. You indicate that you responded with a third letter on February 25, 2004, requesting records indicating the Mr. Hogge's charges to the City. You again indicated that if the City had not yet received a bill, you would be satisfied with a verbal answer as to the fees. The City responded in writing, invoking the records exemptions for attorney-client privilege and work product. The City also stated that if its latest response did not clarify questions you had about its withholding the requested records, that you seek the advice of an attorney.

In light of this string of correspondence, you ask if the City properly withheld the requested documents. In addition, you ask for an opinion as to why the City would encourage a citizen to obtain legal advice over a public records issue, and whether this practice is common in other localities in the Commonwealth.

Subsection A of § 2.2-3704 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. The City invoked five specific exemptions found in § 2.2- 3705 to withhold records relating to the hiring of Mr. Hogge: subdivision A 7, relating to attorney-client privilege; subdivision A 8, relating to work product compiled specifically for use in litigation or an active administrative investigation; subdivision A 14, relating to records compiled specifically for use in closed session; subdivision A 26, relating to records concerning internal investigations of employment discrimination complaints; and subdivision A 31, also relating to internal investigations of employment discrimination complaints. With the exception of billing statements sent by Mr. Hogge to the City, which will be discussed below, and without knowing specifically what records the City has relating to Mr. Hogge's retention as outside counsel, it appears that these exemptions might properly apply to records held by the City relating to the services of Mr. Hogge. Therefore, I am unable to conclude that these exemptions were improperly invoked in response to your initial FOIA request.

However, the City specifically withheld any billing statements from Mr. Hogge as attorney-client privilege and work product pursuant to subdivisions A 7 and A 8 of § 2.2-3705. The Office of the Attorney General of Virginia has previously held that a billing statement sent by a private attorney contracting with a locality to provide legal services must be disclosed upon request under FOIA. The Attorney General found that the amount of a fee charged by an attorney to a client generally is not a matter to which the attorney-client privilege attaches, and stated 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 an attorney."¹ This position is further reflected in a prior opinion issued by this office, which found that the attorney-client privilege does not automatically attach to a document just because it is sent to or from an attorney; instead, the document must relate to specific legal advice.² Therefore, the billing statement received by the City is not subject to attorney-client privilege and must be released upon request under FOIA. Likewise, the work product exemption applies to documents compiled specifically for use in litigation or an active administrative investigation. It would not apply to a billing statement produced merely to collect fees from the client for providing legal services, regardless of whether those services produced records that may be withheld from disclosure under the attorney-client privilege or work product exemption. Portions of a bill may be redacted to the extent that they contain information that may be properly withheld as attorney-client privilege or work product, such as substantive details about the work performed, but the amounts charged to the City for the work performed may not be redacted.

In your request to obtain a copy of billing and fee information, you noted that if the City had not yet received a bill, you would be satisfied with a verbal response as to Mr. Hogge's charges. While nothing in FOIA would prohibit the City from providing you with this information verbally if no such record existed, FOIA would not require such a response. FOIA applies only to records that exist at the time a FOIA request is made. FOIA does not require a public body to create a new record if the record does not already exist, nor does it require a public body to provide verbal responses.

Finally, you ask for an explanation as to why the City would encourage you to seek legal counsel concerning a FOIA issue, and whether this is common advice from a locality. I am not in a position to know whether this is advice frequently given citizens by public officials. However, it appears from the chain of correspondence relating to this matter that you and the City disagreed over the appropriate response to your request. Section 2.2-3713 provides a legal remedy for any person denied rights under FOIA to enforce such rights. In this instance, it appears that the City recognized that you had a differing position as to what is required to be released under FOIA that was unlikely to be resolved with further discussion. Because FOIA provides citizens with the right to enforce FOIA in a court of law, it is not unreasonable to consider that a citizen might consult with an attorney to discuss what one perceives to be a violation of the law. Therefore, I must conclude that the City suggested that you seek legal counsel to discuss your position because further communication with the City did not seem likely to resolve your differences in interpretation of the law.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹1987-88 Op. Atty. Gen. Va. 30. The Attorney General noted, however, that if a billing statement did contain any information on matters given to the attorney in confidence by the client or legal advice rendered to the locality, this information may be redacted from the billing statement prior to disclosure.
²See Virginia Freedom of Information Advisory Opinion 25 (2003).