New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Attorney-client privilege and the Right to Know Law

Hampton Police Association, Inc. v. Hampton
No. 2010-323, 4/28/2011

The Hampton Police Association (Association) made a Right to Know (RTK) request for outside legal counsel billing records that indicated the time spent and amounts billed for a certain grievance and subsequent arbitration matter. The Town submitted copies of some of the billings but withheld other information because it believed that the narrative information contained within the billing records was protected by attorney-client privilege. Additionally, the Town maintained that because some of the invoice entries contained charges for a variety of legal issues, and not just the matters in question, it could not satisfy the request for records. The trial court ordered the outside legal counsel, as agent for the Town, to create a revised invoice, breaking out the time spent on the matters in question and then, over the Town's continued objection that the records were protected by attorney-client privilege, forwarded the revised invoice to the Association itself.

On appeal, the Supreme Court agreed with the Town that, because the invoices did not already exist in the form requested, the trial court erred when it ordered local counsel to create a revised invoice. The Court pointed out that the Right to Know law specifically does not "require a public body or agency to compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency." RSA 91-A:4, VII. In previous decisions, the Court has distinguished between compiling information from various sources into a list that does not currently exist and providing a subset of existing public records. For example, in N.H. Civil Liberties Union v. Manchester, 149 N.H. 437 (2003), the Court held that the police department was required to provide some, but not all, of the photographs of people who were stopped by police. This did not constitute creation of new records. In contrast, in Brent v. Paquette, 132 N.H. 415 (1989), the Court held that although the requested information (student names, their addresses and parents' names) was contained within various records, the information had never been compiled into a single list, and the school superintendent was not required by the Right to Know Law to create the list. Here, the Town was not required to compile the information requested by the Association because the information was not in existing Town records.

The Court next reviewed the issue of withholding the outside counsel billing records based on attorney-client privilege. "The common law rule that confidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction." Riddle Spring Realty Co. v. State, 107 N.H. 271 (1966). The Town argued that detailed billing records are per se privileged from disclosure under attorney-client privilege. Noting that this is an issue of first impression, the Court declined to adopt a per se rule that all descriptive narratives in attorney invoices to clients are subject to the attorney-client privilege. However, the Court held that the attorney client-privilege may apply when the narratives contain more than a general description of the nature of services performed. Examples cited by the Court as likely to be considered privileged include: the motive of the client in seeking representation; litigation strategy areas of the law the attorney is researching; and detailed entries that identify privileged communications and reveal people the attorney has spoken with and the topics discussed. On the other hand, items such as the general (not detailed) purpose of the work performed; billing and amount of the fee; and time expended will not be privileged.

If a municipality intends to withhold records based on attorney-client privilege, the municipality must be prepared to specifically identify the information to be withheld and why the attorney-client privilege is applicable to that specific information. There is no per se rule that all attorney billing invoices to clients are subject to the attorney-client privilege.

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.

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