Solicitors’ Invoices and Right-to-Know Act Requests

On January 6, 2011, the Pennsylvania Commonwealth Court confirmed that municipalities may redact portions of their solicitors’  bills to eliminate disclosure of billing entries protected by the attorney-client privilege before producing the bills as part of a Right to Know Act request, and that the requestor may be enjoined to return unredacted copies erroneously produced by the municipality.  The Court reviewed the appeal of a requestor, who had obtained unredacted invoices issued by the township’s open records officer despite the solicitor’s advice to withhold the invoices until they could be edited.  The trial court issued a permanent injunction requiring the requesting lawyer to return the unredacted invoices, and a divided 3-judge panel of the Commonwealth Court affirmed.

The requestor did not dispute that the solicitor’s itemized invoices were privileged documents and conceded that the open records officer should have refused the request.  The requestor, however, contended that once the solicitor’s unredacted invoices were provided they were no longer subject to the attorney-client privilege.  The Commonwealth Court disagreed, noting that the solicitor took reasonable precautions against disclosure by counseling the open records officer that redactions were necessary to protect the attorney-client privilege and instructing her not to release any documents until she was told otherwise.  “Waiver of the attorney-client privilege is a momentous decision,” wrote the Court, and the requesting lawyer had not demonstrated that the open records officer had the actual authority to release the unredacted invoices.  Therefore, the Commonwealth Court held that the solicitor’s invoices were protected by the attorney-client privilege and that the trial court did not err by imposing a permanent injunction against the requestor.

A link to the Commonwealth Court’s decision can be found here.