Cypress Media, Inc. v. City of Overland Park, 82,353.

Citation268 Kan. 407,997 P.2d 681
Decision Date28 January 2000
Docket NumberNo. 82,353.,82,353.
PartiesCYPRESS MEDIA, INC. d/b/a THE KANSAS CITY STAR, Appellee, v. CITY OF OVERLAND PARK, KANSAS, Appellant.
CourtUnited States State Supreme Court of Kansas

J. Nick Badgerow, of Spencer Fane Britt & Browne LLP, of Overland Park, argued the cause, and Eric W. Smith, of the same firm, was with him on the brief for appellant.

Timothy K. McNamara, of Kansas City, Missouri, argued the cause, and W. Joseph Hatley and Jason M. Sneed, of Lathrop & Gage L.C., of Overland Park, were with him on the brief for appellee.

Donald L. Moler, Jr., general counsel, and Kimberly A. Gulley and Larry A. Kleeman, were on the brief for amicus curiae League of Kansas Municipalities.

Paige A. Nichols, of Lawrence, and James F. Vano, of Overland Park, were on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.

J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, was on the brief for amicus curiae Kansas Association of Defense Counsel. The opinion of the court was delivered by

LARSON, J.:

This is an interlocutory appeal by the City of Overland Park (City) from an order requiring it to make available to Cypress Media, Inc. d/b/a The Kansas City Star (Star) unredacted copies of its 1996 attorney billing statements from outside counsel following a request by the Star under the Kansas Open Records Act (KORA or Act), K.S.A. 45-215 et seq. The appeal raises substantial first impression questions concerning exemptions from production under the Act, the attorney-client privilege, the work-product doctrine, and the application of privilege logs. The request for an interlocutory appeal was granted by the Court of Appeals pursuant to K.S.A. 60-2102(b), and the appeal was transferred to this court as allowed by K.S.A. 20-3017.

Factual background

Although the parties disagree as to the legal effect of their actions in this case, the facts giving rise to the litigation and the proceedings resulting in this appeal are largely undisputed.

As a municipal corporation organized under the laws of Kansas, the City is a "public agency" within the meaning of K.S.A. 1998 Supp. 45-217(e)(1), is generally subject to the provisions of the KORA, K.S.A. 45-215 et seq., and is entitled to the benefits of the exceptions from disclosure contained in K.S.A. 1998 Supp. 45-221. This litigation and appeal relate to the billing statements submitted by outside legal counsel in private law firms employed by the City in litigation or other specialized legal matters.

Preliminary to this litigation, the Star had requested the opportunity to inspect all billing statements submitted for 1996 legal services by outside law firms representing the City. The City had indicated that while it would make the billing statements available, it would redact or mask portions of each bill claimed to be exempt under the "the attorney-client privilege, the attorney work product doctrine or other reason." The City made available summaries of the billings showing the case or subject matter, the name of the law firm, the time spent, attorney fees, expenses billed, the total amount billed, and the month in which the work was performed. Deeming this offer insufficient, the Star sued the City seeking a declaratory judgment that the billing statements and descriptive information contained therein were not privileged communications or attorney work product, or alternatively for the court to declare the extent to which individual entries might be exempt from disclosure. An injunction was sought ordering billing statements to be presented for inspection except those found to be exempt as the court might find after an in camera inspection. The City's refusal to allow inspection of the documents was claimed to be in bad faith without reasonable basis in fact or law, entitling the Star to receive fees and costs under K.S.A. 45-222(c).

In its answer, the City essentially contended it acted in good faith and complied with K.S.A. 1998 Supp. 45-221(d) and claimed the documents sought were not open for inspection due to the exclusions of K.S.A. 1998 Supp. 45-221(a)(1), (2), (4), (10), (11), (14), (20), and (25).

The litigation proceeded to cross-motions for partial summary judgment on the limited issue of whether every narrative description of every service performed by an attorney, as set forth in the attorney billing statements, was per se subject to either the attorney-client privilege or work-product doctrine. The Star contended the documents were not per se privileged and requested an order for the trial court to make an in camera inspection and provide the Star with a general description of the redacted information so it could assess the legitimacy of the claimed privilege.

The City's response sought summary judgment on the same issue, noting that other claimed exemptions were not the subject of the motions. The City asked the court to deny the Star's request for an in camera review and to only consider such request if the per se privilege was not found to exist.

In ruling on the motions, the court found the documents were public records within the meaning of the Act, not per se privileged or exempt from disclosure, and that the only question remaining was whether they were subject to the attorney-client privilege or the work-product doctrine. The trial court held the exemptions were to be narrowly construed and the City had the burden of proving the exemptions. The trial court found that communications between a lawyer and client are privileged only if made for the purpose of giving or receiving legal advice.

To assist in determining the extent of the claimed exemptions, the City was ordered to prepare and present to the court and opposing counsel within 21 days a privilege log, giving detailed specifications as to the basis for each privilege claimed, prepared in accordance with Federal Rule of Civil Procedure 26(b)(5) and under "the guidelines announced in High Plains Corp. v. Summit Resource Mgmt., 1997 W.L 109659, *1 (D. Kan. Feb. 12, 1997); Jones v. Boeing Co., 163 F.R.D. 15 (D. Kan. 1995); Miner v. Kendall, 1997 WL 695587, *1 (D. Kan. Sept. 17, 1997); and Bennet v. Fieser, 1993 WL 566202, *2 (D. Kan. Oct 26, 1993)."

Although the specific language of the trial court's order is not fully set forth in the journal entry, the court at the time of ruling stated:

"[T]he standard for testing the adequacy of a privilege log is whether, as to each document, it sets forth specific facts that if credited would suffice to establish each element of the privilege or immunity that is claimed. The focus is on the specific descriptive portion of the log and not on the conclusory invocations of the privilege ... since the burden of the party withholding documents cannot be discharged by mere conclusory ... assertions. When a party invoking the privilege does not provide sufficient detail to demonstrate the fulfillment of all the legal requirements for application of the privilege, the claim of privilege will be restricted."

The trial court further stated that the parties should not expect that a lack of completeness in the log would be remedied by the court doing an in camera inspection and that, while such an inspection might ultimately be required, the log would permit a more intelligent determination of what is and is not subject to privilege. Any documents or billing statements as to which no claim of privilege was made were ordered to be produced for the Star.

In asking for guidance, counsel for the City stated that it was his understanding the federal rule would only require identification of the document while the court seemed to be asking for descriptions of each entry for each day, which was not required by the federal rule. The Star's counsel responded that the log would not be meaningful unless prepared line-by-line because application of privilege might vary by entry or even by parts of each entry in each document. The court responded that a blanket claim of privilege would not be sufficient and that the court was rejecting the contrary holdings in In re Horn, 976 F.2d 1314 (9th Cir. 1992); In re Grand Jury Witness, 695 F.2d 359 (9th Cir. 1982); or Weeks v. Samsung Heavy Industries, Inc., 1996 WL 288511 (N.D. Ill., May 30, 1996), because not every communication is privileged, only those constituting the giving or receiving of legal advice. The court gave examples of narrative that would not be privileged, including: "notice of a hearing" and "preparation of a notice of hearing." The court reiterated that it was up to defense counsel to explain in the privilege log how the privilege applied in each instance and stated: "If it has to be line-by-line—counsel, I can't tell you how to try your lawsuit and how to assert your claim of exemption here. And if it has to be line-by-line, it's going to have to be line-by-line. But I think we've got to have a starting point, and I think that's the only starting point that we can have."

The trial court declined the City's request that the court certify for interlocutory appeal the ruling that not every narrative statement in the billing documents was per se privileged.

In response to the court's order, the City produced 1,138 pages of materials consisting of an introductory memorandum with nine attachments, including letters, newspaper articles, resolutions of the council, as well as every billing statement at issue in the case with all the narrative descriptions of work performed redacted. The first portion of the privilege log repeated all of the City's previous arguments that narrative descriptions in attorney billing records are privileged in their entirety and stated that the City's position with respect to each claimed privilege allowed it to withhold the narrative portions of the documents. Numbers were written on the top of each document designating the privileges claimed and a key to the numbers was provided which cited and quoted the statutory...

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