Attorney-client privilege doesn’t protect client IDs, description of services

Levy v. Senate of Pennsylvania
Supreme Court of Pennsylvania
No. 44 MAP 2012

April 24, 2013

In a case involving a Right to Know Law request for state Senate legal bills, the Supreme Court held that the attorney-client privilege generally does not protect client identities or descriptions of services in legal invoices.

The court also ruled that an agency’s failure to raise certain reasons for denying a RTKL request in its original denial letter does not always bar it from raising those reasons at the first level of appeal.


Marc Levy, a reporter for The Associated Press, requested that the Pennsylvania Senate provide copies of “all bills, contracts and payment records” for outside attorneys hired for Sen. Robert Mellow or any other member of the Senate Democratic Caucus.

The Senate provided the documents, but redacted from the legal invoices the clients’ names and the descriptions of the firms’ work, citing the attorney-client privilege.

Under the RTKL, privileged records are exempt from disclosure.

Following an appeal to the Senate Appeals Officer, and after a court-appointed special master reviewed the records in private, the Commonwealth Court ruled that the clients’ identities were not subject to the attorney-client privilege, and concluded that only certain descriptions in the invoices that revealed confidential attorney-client communications were privileged and thus exempt from disclosure.

The court also held that the Senate could not raise any new arguments to the Senate Appeals Officer because the Senate initially denied Levy’s request solely on the ground that he sought records that it claimed were protected by the attorney-client privilege.

The Senate asked the state Supreme Court to review these rulings.

Supreme Court Decisio

On appeal, three issues stood before the Supreme Court: (1) whether the attorney-client privilege protects client identities, (2) whether the privilege protects descriptions of the legal services provided, and (3) whether an agency waives arguments that a record is not accessible under the RTKL if those arguments were not raised in the initial denial.

First, the Supreme Court determined that, as a rule, client identities generally are not protected by the attorney-client privilege.

However, such protection may be invoked where “divulging the client’s identity would disclose either the legal advice given or the confidential communications provided.” In this case, because several lines of text related to “the specific nature of representation” were already redacted, there was no basis for redacting the clients’ names, as the disclosure of those names would not reveal any privileged information.

Second, the Supreme Court ruled that descriptions of legal services in a law firm’s invoice are not automatically protected by the attorney-client privilege.

Instead, courts must consider whether the content of descriptions “will result in disclosure of information otherwise protected by the attorney-client privilege.” In this case, because the Senate did not challenge any of the Commonwealth Court’s rulings concerning the redactions, the Supreme Court affirmed the decision below permitting disclosure with only specific redactions.

Finally, the Supreme Court overturned the Commonwealth Court’s blanket rule that all reasons for denying a RTKL request must be stated in the initial denial or else they are waived in any appeal.

The court reasoned that the RTKL, though intended to increase government transparency, is also designed to protect certain types of government documents from disclosure. The General Assembly’s desire to protect certain records would be undermined if legitimate exemptions automatically are waived if they are not mentioned in the initial denial letter.

The Supreme Court appeared to be particularly concerned about the possibility that an agency might inadvertently waive exemptions that protect information that private parties provide to the government.

Given these concerns, the Court concluded that “the per se waiver rule . . . is unnecessarily restrictive,” although it appeared to leave open the possibility that in some circumstances agencies could waive exemptions that are not raised in initial denial letters.