7(1)(m), also known as the Communications with Attorney or Auditor exemption, is defined as, “Communications between a public body and an attorney, or an auditor representing the public body– but only if the communications would not be subject to discovery in litigation.” Records concerning internal audits of agencies, or by attorney request, records dealing with preparation for a criminal, civil or administrative proceedings, are also exempt. The case Illinois Education Association v. State Board of Education established that the State Board lacked attorney client privilege and was not subject.
When contemplating an appeal of a 7(1)(m) invocation the case Ulrich v. Stukel is highly relevant. The case set the precedent that “It is well-recognized that information regarding a client’s fees generally is not a ‘confidential communication’ between an attorney and client, and thus is not protected by the attorney client privilege.” While an explanation of the fees could result in a breach of attorney-client privilege, if the explanations are redacted, or not present, fees are not exempt. Clarke v. American Commerce National Bank is also quite relevant. In this case it was held that “not all communications between attorney and client are privileged. Our decisions have recognized that the identity of the client, the amount of the fee, the identification of payment by case-file, and the general purpose of the work performed are not usually protected from disclosure by attorney-client privilege.”
A 2015 appeal from a Chicago Reader reporter contesting the Governor’s Office right to invoke 7(1)(m) is also relevant. The request was for a list or a database of outside counsel used by the State of Illinois in 2013 to 2015, what agencies received the work, and what general purpose the work filled. The Governor’s Office maintained it had no obligation to fulfill the request due to the description of the work violating privilege. Using legal precedents, especially Clarke v. American Commerce National Bank, the Public Access Counselor found that the Governor’s Office had improperly cited 7(1)(m) and instructed them to turn over all responsive documents. Their reasoning was that the Office had failed to demonstrate that there were any specific details of work provided, litigation strategy, or motive for seeking representation in the documents requested that would violate attorney-client privilege.
An appeal of 7(1)(m) must be centered on proving that no breach of attorney-client privilege would result from disclosure of the documents. Luckily, there are several cases that have set precedents regarding this exact discussion. If one can prove that the information requested isn’t asking for specifics of communication or work rendered between attorney and client, 7(1)(m) will not be upheld as a valid reason for withholding documents.
- Denying access to records that violate the specifics of attorney-client privilege
- Denying access to records that are so general that attorney-client privilege does not cover the information released
- Denying access to records involving attorney fees and general work provided information
Illinois Education Association v. State Board of Education, 204 Ill, 2d 456, 791 N.E.2d 522, 274 Ill. Dec. 430
Ulrich v. Stukel, 294 Ill. App. 3d 193, 689 N.E.2d 319, 228 Ill. Dec. 447 (1st Dist. 1997)
Clarke v. American. Commerce National Bank, 974 F.2d. 127, 130 (1992)
Monier v. Chamberlain, 31 Ill.2d 400. (1966)