By:  Matthew L. Meredith, Esquire

The Pennsylvania Commonwealth Court issued a decision on July 23, 2024, in Couloumbis v. Pa. Office of Gen. Couns., 2024 Pa. Commw. Unpub. LEXIS 400 (Cmwlth. July 23, 2024), that illustrates the application of the Right to Know Law (the “RTKL”) to law firm invoices sent to a governmental body. Couloumbis also broadly examines the contours of the attorney-client privilege as it applies in the context of the RTKL and how the Pennsylvania Supreme Court has established those contours.

​

Generally, the RTKL states that a Commonwealth agency record is presumed to be a public record unless “protected by a privilege” or subject to other exemptions. The RTKL defines privilege to include “the attorney-client privilege.” Additionally, a record, or information contained in a record, can be otherwise privileged pursuant to the attorney work product doctrine and the criminal investigation exception.

In January 2022, Angela Couloumbis, Spotlight PA, Sam Janesch, and The Caucus (collectively the “Requesters”) submitted a request to the Pennsylvania Office of General Counsel (the “OGC”) seeking the disclosure of “[e]ngagement letters, retainer letters, contracts, invoices[,] and any other financial documents detailing an agreement or payment for legal services by an outside individual attorney or law firm for departments under the governor's jurisdiction . . . for calendar years 2019, 2020[,] and 2021.” The OGC, in response, provided 169 pages of invoices from outside law firms and their subcontractors with extensive redactions. The OGC, forexample, redacted the subject matter line of each invoice. OGC believed these redactions concealed information protected by the attorney-client, work product privilege, or executive privilege. The Requesters appealed to the Office of Open Records (the “OOR”), challenging the redactions to the invoices’ subject matter lines.  The Requesters asserted that the redactions improperly obscured the purpose or name of the case and the clients’ names.

Ultimately, the Commonwealth Court agreed with the Requesters. The Court explained that not all information passed between client and attorney is privileged; the privilege is limited to communications related to the legal advice sought by the client.  For example, a government cannot  redact on a law firm invoice that an attorney made a phone call or that a lawyer drafted a memorandum, but redactions can occur of what the memorandum was about or what was discussed in the phone call.  The OGC asserted in this case, however, that the attorney-client privilege should apply generally to the client’s identity, such as employee “John Doe.”. Addressing the OGC’s argument, the Court stated that mentioning a client's name or involvement in a grand jury investigation or State Ethics Commission investigation did not privilege those subject matter lines. That privilege is only reserved for descriptions of legal services that would divulge confidential client communications or an attorney’s mental impressions, legal theories or analyses, notes, strategies, and the like. And, if the aforementioned information is redacted in the body of the document, there is no need to redact a client’s name from the subject matter line.

​