Counsel for a school board
Q: I am reporter and seeking advice about what I can do to request information from our local school district. Recently our school board hired a lawyer to formulate legal opinion about a particular school board policy. The opinion is in, but they refuse to share the information, citing attorney-client privilege. Is there any way around this? Is this in fact legal?
A: The California Public Records Act, Government Code section 6250 et seq., would allow you to request a copy of the opinion, but it also probably permits the City to refuse to disclose it. Government Code section 6254(k) permits (but does not compel) a public agency to withhold “records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” This exemption incorporates the attorney-client privilege, and it applies even if no litigation is pending. See, e.g., Roberts v. City of Palmdale, 5 Cal. 4th 363, 370-373 (1993). Because the legal opinion of an attorney hired by the City is within the attorney-client privilege, the City is probably justified in withholding it. As with all of the exemptions in the Public Records Act, of course, the exemption provided by section 6254(k) is discretionary, and the City can disclose the opinion if it chooses to do so. It may be worthwhile to suggest that it is concealing the opinion only because it is ashamed to admit that the opinion finds that the policy is illegal.