The city of Fairhope has refused to release documents requested by the Fairhope Courier, which the general counsel for the Alabama Press Association says are covered by the state Open Records law.

The Courier’s Aug. 31 request sought records revealed during a lawsuit filed this summer against the city by its insurance company.

“The records you are requesting are not public information because they relate to confidential communications in two pending lawsuits,” City Clerk Lisa Hanks wrote in an Aug. 31 letter to the Courier.

But the general counsel for the Alabama Press Association says the documents are covered by the state’s Open Records statute and should be disclosed.

The city and AMIC agreed to a fee-sharing arrangement early on in the Dyas lawsuit, to pay the fees of Caine O’Rear and other attorneys in the Mobile office of Hand Arendall because those attorney’s fees exceeded the maximum amount that the insurance company would pay or reimburse

The city’s response to the lawsuit, filed by Mark Hart, an attorney in the Birmingham office of Hand Arendall, stated that AMIC had refused to pay $255,000 in fees during the course of the litigation.

The defendants’ response also stated that AMIC had agreed to defend the city under a “reservation of rights” letter it sent the city in July 2008. The response also revealed the existence of correspondence between AMIC and the city in the case.

The Courier requested that “reservation of rights” letter, the fee dispute correspondence, and the letter in which the company informed the city it had withdrawn from the case.

“The reservation of rights letter from the carrier to the city is not a privileged document,” Dennis Bailey, APA’s general counsel, stated on Sept. 14. “The fee dispute letters are not privileged. There may be entries in the disputed bills that contain privileged information but not all the material would be privileged.”

The city’s refusal to provide records was the second time in recent months that the city has refused a public records request by the Courier.

On June 30, the Courier requested the hourly rate being paid the Hand Arendall attorneys in the Dyas lawsuit

“The information you are requesting pertains to a pending lawsuit between the Dyases and the City of Fairhope and the Mayor,” Hanks wrote the Courier in an Aug. 6 letter. “Certain information provided by the attorneys for the City and Mayor in the lawsuit is confidential, subject to the attorney-client privilege and/or otherwise not a public record or writing.”

The city had earlier provided the amount of total fees paid to the firm but did not address then or in the later letter the Courier’s request for the hourly fee.

O’’Rear would later disclose that rate in a separate e-mail to the Courier. He stated his hourly rate was $300 an hour and another attorney in the firm was $240 an hour.

“The hourly rate and amount of attorneys fees paid are public record,” stated Lori Lein, the deputy general counsel for the Alabama League of Municipalities, on Aug. 11. “What those fees relate to in terms of advice or service provided would most likely be protected by attorney–client privilege.  However, the dollar figures paid out would be public information.”

The city has never provided that hourly fee rate information to the Courier. It relied on a private law firm to do so.

During its efforts to obtain records regarding the fee arrangement between the city and its attorneys in the Dyas lawsuit, the Courier learned that O’Rear had instructed the city clerk’s office not to provide one document it had prepared and was ready to disclose.

The city treasurer had prepared a spread sheet of information regarding those attorney’s fees in response to the Courier’s public records request and sent that to the clerk’s office to be provided to the newspaper.

The Courier requested that document in person at the clerk’s office.

“He told me not to give it you,” Hanks said, referring to O’Rear.

Hanks added that O’Rear told her the information in the spread sheet was incorrect and therefore should not be released.

It could not be determined by press time whether O’Rear advised the city not to disclose the records requested by the Courier on Aug. 31, regarding the documents related to the AMIC lawsuit.

O’Rear did not a return a phone call seeking comment for this story.

The city clerk also did not immediately respond to a request for an answer to the question as to whether it was O’Rear or the appointed city attorney who had been consulted regarding whether the records requested should be disclosed.