The Supreme Court ruled today that some information in billing records from private lawyers who did legal work for the City of Vermillion is not exempt from disclosure by attorney-client privilege, and therefore is subject to disclosure under the state public records act.

After leaving office in December 2009, the former mayor of Vermillion, Jean Anderson, believed that the administration of the new mayor, Eileen Bulan, was spending more money on legal counsel with a new firm she had hired to represent the city. In order to subject the city’s finances to public scrutiny, Anderson made several public records requests of the new administration seeking certain records, including “all itemized billing statements” received from both the old law firm and the new one that Mayor Bulan’s administration had hired.

The city denied the request, stating that the records were exempt from disclosure under the state public records law because the records were private communications between the city and its attorneys. A separate provision of Ohio law grants privacy to certain communications between lawyers and their clients, and this exemption is known as the attorney-client privilege.

In September 2010, Anderson filed a lawsuit in the Sixth District Court of Appeals asking the court to order the city to provide copies of portions of the billing records that did not contain information that was privileged. She also asked the court to order the city to pay damages and attorney fees.

After examining the billing records privately, the appeals court granted summary judgment in favor of the city and dismissed the lawsuit. Anderson appealed to the Ohio Supreme Court.

“The attorney fee billings that have been requested will provide transparency to the
government operations of the City of Vermilion, and allow the public the right to
scrutinize the nature and extent of legal fees that are being incurred by the City,” lawyers for Anderson argued in briefs filed with the Ohio Supreme Court. “There is no doubt the taxpayers have a right to determine whether their government is being operated in a prudent fashion, or whether the City is paying excessively for the legal representation they receive.”

In a unanimous opinion that was not assigned to a particular justice (per curiam), the Supreme Court ruled today that the court of appeals erred in granting summary judgment in favor of the city and that some of the billing records are subject to release.

“Under the Public Records Act, insofar as these itemized attorney-billing statements contain nonexempt information, e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services, they should have been disclosed to Anderson,” the court wrote.  Quoting the Ohio Public Records Act (R.C. 149.43(B)(1)), the opinion stated: “’If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt.’”

The court dismissed arguments by the city of Vermillion that the issue was moot because the city had subsequently released some records, that redacting the attorney-client privileged portions of the records would render the remaining information “meaningless,” and that the billing statements were so intertwined with attorney-client privileged information as to be inseparable. 

“[T]he court of appeals erred in denying Anderson’s motion for summary judgment and granting summary judgment in favor of the city on Anderson’s public-records mandamus claim.  Anderson established her entitlement to a writ of mandamus to compel Vermilion to provide her with copies of the nonexempt portions of the requested itemized attorney-billing statements,” the Supreme Court ruled.

However, the opinion went on to deny Anderson’s request for statutory damages and attorney fees.

The court explained that in denying Anderson’s request for the billing records, the city and the court of appeals had relied on a previous Ohio Supreme Court case, State ex rel. Dawson v. Bloom-Carroll Local School Dist, in which the court had held that the narrative portions of itemized attorney-billing statements containing descriptions of legal services performed by counsel for a client are protected by the attorney-client privilege. 

However the court found that the facts in the Dawson case were substantially different.

In denying damages and fees in this case, the court ruled that the error on the part of the court of appeals was not an abuse of its discretion and “a well-informed public office could have reasonably believed, based on our decision in Dawson …  that the nonexempt portions of the attorney-billing statements could be withheld from disclosure.”

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

2012-0943. State ex rel. Anderson v. Vermilion, Slip Opinion No. 2012-Ohio-5320.
Erie App. No. E-10-040, 2012-Ohio-1868.  Judgment affirmed in part and reversed in part, and cause remanded.
O’Connor, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-5320.pdf