IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 82,353
CYPRESS MEDIA, INC. d/b/a THE KANSAS CITY STAR,
Appellee,
v.
CITY OF OVERLAND PARK, KANSAS,
Appellant.
SYLLABUS BY THE COURT
1. Appellate courts have jurisdiction to hear an interlocutory appeal of a trial court order under K.S.A. 60-2102(b) where the order involves a controlling question of law as to which there is substantial ground for difference of opinion and where an immediate appeal from the order may materially advance the ultimate termination of the litigation.
2. Where an appealable issue in an interlocutory appeal is inextricably intertwined with other issues that do not themselves meet the criteria for an interlocutory appeal, the latter issues may also be reviewed to allow meaningful review and promote judicial economy.
3. It is the declared public policy of the State of Kansas that public records shall be open for inspection by any person, and the Kansas Open Records Act, K.S.A. 45-215 et. seq., shall be liberally construed and applied to promote such policy.
4. The attorney-client privilege of K.S.A. 60-426 does not apply to every interaction between an attorney and his or her client. Nor does attorney-client privilege only exist where advice is given or received. The consideration of whether advice was given or received does not add any element to the statutory definition but rather is an aid in its interpretation and explanation.
5. All narrative statements in attorney fee statements are not per se privileged. Rather, parties claiming the privilege will have to show its application to particular narrative statements in billing records.
6. Parties objecting to discovery on the basis of the attorney-client privilege bear the burden of establishing that the privilege applies. To carry the burden, they must describe the documents or information to be protected, state precise reasons for the objection to discovery, and provide sufficient information to enable the court to determine whether each element of the asserted privilege is satisfied. A blanket claim as to the applicability of a privilege does not satisfy the burden of proof.
7. The work-product doctrine codified in K.S.A. 1998 Supp. 60-226(b)(4) does not offer a per se exemption to the production of attorney fee statements under the exemptions of K.S.A. 1998 Supp. 45-221(a)(1).
8. Under the facts of this case, where a public agency claimed various exemptions under the Kansas Open Records Act on the basis of attorney-client and other privileges, it was not erroneous or an abuse of discretion for the trial court to require the preparation of a privilege log like that permitted under Federal Rule of Civil Procedure 26(b)(5) as part of the burden of proving the claims of privilege and exemption.
9. Under the facts of this case, the trial court did not abuse its discretion in ruling the City of Overland Park failed to meet its burden of proving that an attorney-client privilege existed as to its 1996 attorney fee billing statements of outside legal counsel.
10. Under the facts of this case, after finding the City of Overland Park's privilege log was clearly insufficient, the trial court did not abuse its discretion in ordering the City to produce unredacted copies of all of its 1996 attorney fee billing statements of outside legal counsel.
Appeal from Johnson district court; WILLIAM O. ISENHOUR, JR., judge, assigned. Opinion filed January 28, 2000. Affirmed.
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 subsections relied upon. The City also argued that the definition of privileged communications included any and all communications between the lawyers and not just those given for the purpose of giving or seeking legal advice.
In response to the privilege log submitted, the Star filed a motion contending the log was not in accordance with the court's clear instructions and that the City should be deemed to have waived any claim of privilege and compelled to produce for the Star unredacted copies of all of the billing statements. At a hearing on the motion, the City countered that it had complied with the court's order and that even if the log was deemed inadequate, a finding that the City had waived the privilege would be unwarranted.
The trial court observed that the case was unique from the usual privilege log situation because, here, it was what was contained in the documents rather than the documents themselves that was the "real battleground" of the suit. The court found that the City's act of simply identifying the document and stating the privilege amounted to nothing more than a blanket claim which did not meet the City's obligation. The court acknowledged the City's continued stance that all of the narrative descriptions were privileged but stated the log was insufficient to comply with the order or even allow a guess as to whether a proper exemption existed. The trial court held that it had clearly required a line-by-line analysis which had not been furnished and it granted the Star's motion compelling the City to give the Star unredacted copies of all the 1996 attorney fee billing statements of outside counsel.
The trial court certified its ruling for interlocutory appeal and ordered a stay pending an outcome on appeal. The Court of Appeals granted the City's request to take an interlocutory appeal. A notice of appeal was properly filed. We granted the City's motion to transfer.
Our court has jurisdiction to hear all issues raised by the City's interlocutory appeal.
We have jurisdiction to hear an interlocutory appeal of a trial court order under K.S.A. 60-2102(b) where the order "involves a controlling question of law as to which there is substantial ground for difference of opinion" and where "an immediate appeal from the order may materially advance the ultimate termination of the litigation."
In contending we are without jurisdiction over any aspect of this appeal, the Star first argues there are no controlling questions of law in this case. Because the trial court refused to certify for an interlocutory appeal the July 24, 1998, order which held that billings statements were not pe se privileged, the Star contends the order requiring production of unredacted billing statements due to insufficiency of the privilege log is discretionary in nature and not subject to our review.
The City more convincingly argues that the transcript of the hearing on the Star's motion to compel the City to produce unredacted billing statements due to its failure to produce a proper privilege log reveals that the trial court necessarily revisited and reaffirmed its earlier ruling on the per se issue and that the trial court's final order of production was a reaction to the City's continued claim of an absolute privilege. The trial court stated that while it had ruled that not all entries of billing statements are privileged this remained an issue for an appellate court to determine.
With the right to appeal being statutory, it is well established that this court has only such appellate jurisdiction as is provided by law. In re J.B.D., 259 Kan. 872, 874, 915 P.2d 69 (1996). Further, whether jurisdiction exists is a question of law over which our court's scope of review is unlimited. State v. Snelling, 266 Kan. 986, 988, 975 P.2d 259 (1999). We previously held in Professional Lens Plan, Inc. v. Polaris Leasing Corp., 234 Kan. 742, 757, 675 P.2d 887 (1984), that an interlocutory appeal may be taken only from an issue actually decided and may not be taken from issues not decided by the trial court.
The City relies on Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205, 133 L. Ed. 2d 578, 116 S. Ct 619 (1996), where the Supreme Court considered 28 U.S.C. § 1292 (1994), a federal statute substantially identical to K.S.A. 60-2102(b). The Court concluded that in an interlocutory appeal, the appellate court may review any issue fairly included within the certified order because it is the order which is certified rather than the district court's formulations of issues. A review of the Yamaha decision shows that if the per se ruling was encompassed within the later ruling in this case on the Star's motion which was certified, a clear question of law exists for our determination in this appeal.
Although the subject of the hearing on the Star's motion to compel was the requested production of the unredacted copies because of the failure of the City to provide an adequate privilege log, intertwined in that controversy was the City's continued insistence, restated in the privilege log, that the narratives in the attorney fee billing records remained per se privileged.
After ruling the City had failed to meet its burden of proving the claimed privileges, and ordering production of the unredacted statements, the trial court stated that the application of the Act in this case was an issue ripe for determination by an appellate court.
The City also argues that where an appealable issue is inextricably intertwined with other issues that might be considered nonappealable, both may be reviewed to allow meaningful review and promote judicial economy. In making this argument, the City relies on Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1365 (11th Cir. 1997), where an order that was not otherwise properly before the court was decided because it was inextricably intertwined with the appealable order and necessary to resolution of the ultimate question presented. See Law v. National Collegiate Athletic Ass'n, 134 F.3d 1010 (10th Cir. 1998).
While we have no Kansas case which appears to deal directly with this issue of pendant interlocutory jurisdiction, we did in Parker v. Volkswagenwerk Aktiengesellschaft, 245 Kan. 580, 781 P.2d 1099 (1989), accept an interlocutory appeal on an issue regarding abuse of discretion in the disqualification of an out-of-state attorney and considered other questions.
In either event, the broader per se privilege issue was at the heart of and inextricably intertwined with the privilege log issue which has the effect of resolving the ultimate issue in this case. We hold that jurisdiction exists to consider the per se issue as well as the trial court's ruling regarding the privilege log.
Are narrative statements in attorney billing statements per se exempt from production under the attorney-client privilege or work-product doctrine exceptions to the Kansas Open Records Act?
Although this appeal involves exceptions to the KORA, it is of prime importance to focus on the overriding public policy of the Act, which is set forth in K.S.A. 45-216(a) as follows: "It is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy." (Emphasis added.)
Our legislatively directed duty has been previously recognized by our court in State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991), where we stated: "The interpretation of KORA is a question of law and it is our function to interpret the Act to give it the intended effect." We went on to set forth our duty in the following manner:
"The Kansas Open Meetings Act, K.S.A. 75-4317 et seq., and KORA were passed by the legislature to insure public confidence in government by increasing the access of the public to government and its decision-making processes. This increases the accountability of governmental bodies and deters official misconduct. The public policy stated in KORA is that all records are 'open for inspection by any person unless otherwise provided by this act.' K.S.A. 45-216(a). The burden of proving that an item is exempt from disclosure is on the agency not disclosing. K.S.A. 45-218.
". . . The stated policy of KORA is that all public records are to be open to the public for inspection unless otherwise provided by the Act. As used in KORA 'public' means 'of or belonging to the people at large.' 'Public inspection' refers to the right of the public to inspect governmental records when there is a laudable object to accomplish or a real and actual interest in obtaining the information." 249 Kan. at 170.
See Southwest Anesthesia Serv., P.A. v. Southwest Med. Ctr., 23 Kan. App. 2d 950, 951, 937 P.2d 1257 (1997).
With our legislatively directed duty firmly in mind we recognize that K.S.A. 1998 Supp. 45-221(a) sets forth numerous exceptions from disclosure under the Act. The two which are in issue in this case are the following:
"Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
(1) Records the disclosure of which is specifically prohibited or restricted by federal law, state statute or rule of the Kansas supreme court or the disclosure of which is prohibited or restricted pursuant to specific authorization of federal law, state statute or rule of the Kansas supreme court to restrict or prohibit disclosure.
(2) Records which are privileged under the rules of evidence, unless the holder of the privilege consents to the disclosure."
The manner in which a particular exemption under the Act is to be applied is a question of law over which we have unlimited review. The burden of proving the applicability of an exemption is on the public entity opposing disclosure. Meeting this burden requires more than generalized allegations, conclusory language, or mere arguments of counsel; a sufficiently detailed record must be provided to show the reasons why a claimed exemption applies to the materials requested. 23 Kan. App. 2d 950, Syl. ¶ 2.
With this background we turn to the exceptions claimed by the City in this case.
A. Attorney-Client Privilege
As we have previously shown in setting forth K.S.A. 1998 Supp. 45-221(a)(2), if the records are privileged under rules of evidence and not consented to by the holder of that privilege, disclosure is not required. The City claims application of the claimed attorney-client privilege which is codified in Kansas by K.S.A. 60-426. That statute provides in applicable part:
"(a) General rule. Subject to K.S.A. 60-437, and except as otherwise provided by subsection (b) of this section communications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege . . . (2) to prevent his or her lawyer from disclosing it . . . .
"(b) Exceptions. . . .
"(c) Definitions. As used in this section . . . (2) 'communication' includes advice given by the lawyer in the course of representing the client and includes disclosures of the client to a representative, associate or employee of the lawyer incidental to the professional relationship."
While the privilege is subject to K.S.A. 60-437, that section deals with waiver of the privilege by contract or previous disclosure. Neither is applicable to our case. Nor do the exceptions of subsection 60-426(b) apply.
We first consider the extent of the privilege. The Star asserts that the attorney-client privilege applies only to communications made for the specific purpose of giving or receiving legal advice, whereas the City argues there is no such limitation on the privilege and that it applies to every interaction between attorney and client. While cases and statements can be found to support both views in assessing the extent of the privilege in this case, we are primarily mindful that this is on open records case where the public policy of openness has been legislatively stated and where we have been directed to liberally construe the Act to promote such a policy.
We note the pronouncement of Professor Wigmore that "because the 'benefits [of the privilege] are all indirect and speculative [and] its obstruction is plain and concrete . . . [the privilege] ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.'" Rice, 1 Attorney-Client Privilege in the United States § 2:3 (2d ed. 1999) (quoting 8 Wigmore, Evidence § 2291 [McNaughton rev. ed. 1961]). In doing so, we remain mindful that "the attorney-client privilege is so sacred and compellingly important that the courts must, within their limits, guard it jealously." Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 960 (3d Cir. 1984) (citing Chore-Time Equipment, Inc. v. Big Dutchman, Inc., 255 F. Supp. 1020, 1021 [W.D. Mich. 1966]).
In Fisher v. United States, 425 U.S. 391, 403, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976), a case dealing with enforcement of summonses served on attorneys to produce documents given them by the client's accountants, it was stated that the privilege "applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures--necessary to obtain informed legal advice--which might not have been made absent the privilege. [Citations omitted.]"
The manner in which we consider the attorney-client privilege in Kansas was the subject of State v. Maxwell, 10 Kan. App. 2d 62, 63, 691 P.2d 1316 (1984), rev. denied 236 Kan. 876 (1985), where the rule was summarized as follows:
"(1) Where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived. See 8 Wigmore on Evidence § 2292 (McNaughton rev. 1961)."
It was stated in 24 Wright & Graham, Federal Practice and Procedure, § 5473, pp. 103-04 (1986) that although the organization of the rules in Wigmore has its virtues, "there is some question as to whether it completely states the modern privilege." The modern privilege is discussed in 1 McCormick on Evidence § 87, p. 346 (5th ed. 1999) in this manner:
"At the present time it seems most realistic to portray the attorney-client privilege as supported in part by its traditional utilitarian justification, and in part by the integral role it is perceived to play in the adversary system itself. Our system of litigation casts the lawyer in the role of fighter for the party whom he represents. A strong tradition of loyalty attaches to the relationship of attorney and client, and this tradition would be outraged by routine examination of the lawyer as to the client's confidential disclosures regarding professional business."
With this discussion in mind, it is difficult for either the arguments of the Star or the City to be precisely adopted. However, the fact the communication must have been for the giving or receiving of legal advice appears to have been the underlying basis for the decision of our Court of Appeals in State v. Breazeale, 11 Kan. App. 2d 103, 713 P.2d 973 (1986). The court considered the definition of "communication" in the attorney-client privilege statute in order to decide whether an attorney's communication to his client that the client was to appear in court on a certain day was a communication protected by the privilege. The attorney had been contacted by the court and told that the attorney and his client were to come to court for the reading of the verdicts. When the defendant was charged with the crime of failing to appear, the question was whether the attorney could testify that he had, in fact, conveyed the information to his client.
The court concluded that the definition of communication was not limited to the two examples given in K.S.A. 60-426(c) because that subsection only says "includes" and because a definition limited to what is described in subsection (c) would exclude, inter alia, communications from client to lawyer as opposed to lawyer to client--a result that could not have been intended. The Breazeale court then cited State v. Newman, 235 Kan. 29, 40, 680 P.2d 257 (1984), as holding that the statutory definition of the term "communication" in the lawyer-client privilege statute "means a statement transmitting information between a lawyer and his client." 11 Kan. App. 2d at 105. The court also noted that the privilege "protects confidential communications, that is, communications between a lawyer and his client made in professional confidence. That is the essence of K.S.A. 60-426(a). [Citations omitted.]" 11 Kan. App. 2d at 105. Based on this, the court concluded that the attorney's transmission to the client of the court appearance information was not a c