The Office of Open Records (“OOR”) recently issued a decision in which it denied a request for unredacted invoices of an attorney for a school district based on the attorney-client privilege. In the matter of Campbell v. Pennsbury School District, PA OOR, Docket No.: AP 2018-2171 (Feb. 14, 2019), the OOR upheld a decision of the school district to redact legal descriptions from invoices requested.
Important Legal Principles in this Decision:
Key takeaways in this decision that should have widespread application can most efficiently be highlighted through the use of the following bullet points.
- The Pennsylvania Right to Know Law (RTKL) allows the use of the attorney-client privilege as a basis for state agencies to deny requests for records or to redact privileged information, even though the burden of proof that such privilege applies is on the party asserting the privilege. See RTKL Section 708 and Levy v. Senate of Pa., 34 A.3d 243, 249 (Pa. Commw. Ct. 2011).
- The RTKL defines privilege as “the attorney-work product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other privilege recognized by a court interpreting the laws of this Commonwealth.” See 65 P.S. Section 67.102.
- In order for the attorney-privilege to apply, an agency must demonstrate that: (1) The asserted holder of the privilege is or sought to become a client; and (2) The person to whom the communication was made is a member of the bar of a court, or a subordinate; and (3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, not for the purpose of committing a crime or tort; and (4) The privilege has been claimed and is not waived. Slip op. at 5.
- After an agency establishes the privilege was properly invoked under the first three prongs, the party challenging invocation of the privilege must prove waiver under the fourth prong. Id. However, simply invoking the privilege does not excuse the agency from the burden it must meet to withhold records. Id.
- The Pennsylvania Supreme Court has held that the attorney-client privilege in regard to descriptions of legal services contained within legal invoices does not turn on the category of a document such as whether it is an invoice or a fee agreement, but rather: “the relevant question is whether the content of the writing will result in disclosure of information otherwise protected by the attorney-client privilege. Levy v. Senate of Pennsylvania, 65 A.3d 361, 373 (Pa. 2013). The Pennsylvania high court approved a “line by line analysis” for the review of an invoice to determine whether it contains privileged information. Id.