During his 1995 US Congressional District 3 primary, it was alleged that Mayor Eilert had his Police Chief conduct an illegal FBI criminal background check on opponent Patrick. US Court dismissed the resulting lawsuit following an “out of court settlement”. Prior to the settlement, Judge Vratil ordered the files sealed so as not to negatively influence the public at Eilert’s request. Following the settlement, KC Star filed a lawful KORA request with the City of Overland Park for attorney billing information. Eilert’s refusal made it’s way to the Kansas Supreme Court and provides the last date on The Act itself.
Cypress Media v. City of Overland Park
This case established that exemptions for attorney-client privilege must be defended on a document by document basis, with each justification establishing why that particular document is to be considered confidential attorney communication.
- Cypress Media, or the Kansas City Star, requested of the City of Overland Park all billing statements from 1996 for attorney services provided to the city by outside firms.
- The city responded to the requests by giving the star redacted copies of billing information which included the date of the work, the name of the firm, and the amount billed, including attorney fees and expenses. The information that was redacted under the attorney-client privilege exemption was descriptions of the services and descriptions of the legal issues on which the attorney’s had worked. The city claimed the attorney-client privilege material was exempt under Kansas Open Records statute 1998 Supp. 45-221(a), which exempts all things which are exempted under evidence and discovery rules.
- The Star sued and the trial court, after much debate, ruled in favor of the Star and ordered un-redacted copies of all the documents the Star had requested to be released.
- The City appealed the decision.
Ruling of the court
The trial court first established that a blanket exception for attorney-client privilege could bot be applied as all communications between attorneys and clients did not relate to legal advice. The court ordered the city to compile a line by line list of the documents in question they wished to remain exempt and justify that exemption for each document separately. The city released a number of documents but established a codified system for exempting a larger portion of the documents, again relying on the attorney-client privilege exemption found in the Kansas Open Records Act. The court determined that it had not met the court’s requirement of a line by line justification for exemption and ordered the release of all of the documents. The Supreme Court affirmed the decision of the trial court and ordered the documents released. The Supreme Court first rejected the City’s claim of an expansive attorney-client privilege exemption which includes all communication between attorneys and clients. It however, also rejected the Star’s contention that only communication concerning legal advice constituted an exception under attorney-client privilege. Instead, the court affirmed the decision of the trial court to order a line by line justification of the exemptions, bearing in mind that material that is exempt under the attorney-client privilege is not only material relating to legal advice but any material that would reveal reasons for consulting the lawyer, or courtroom strategies. The court also felt that the same standard of analysis should be applied on a case by case basis to determine if the materials fall under the exemption for attorney work product, as the city argues they should. Finally, the court reiterated the opinion of the trial court that the exemptions mentioned required specific line by line justification for exemption. A mere mention of the statute used to exempt the materials is identical to the broad statutory interpretation the city urged, which would render all attorney-client communication exempt. The court thus affirmed all the decisions of the lower court and declared that it was well within its jurisdiction to order the documents released.