County’s Technical Review

County’s Technical Review

Q: We recently made a Public Record Request for documents relating to the County’s General Plan technical review and technical fix. The request was denied because: “…this draft is still undergoing internal staff and legal review. For that reason, the County is not able to produce the draft, or any memoranda or correspondence relating to it, as those records would be exempt from production under Government Code Section 6254(h). The records would also be privileged under both the deliberative and attorney-client privileges and be exempt per Government Code Section 6254(k).”

We are troubled by this denial for many reasons. The update and amendment process of a General Plan is supposed to be a public process. A consultant was retained by the County to review and provide recommendations.

The final report was then to be presented to the Board of Supervisors. They were also given an optional task to concurrently review the existing Development Codes to ensure internal consistency of policy and application. This review was to include both a text and application review, with results included in the draft and final general plan report along with an estimate for update/revision to the existing development codes if needed.

But, on May 6, 2008 the consultant presented a generic proposal and budget for a General Plan update beyond the “technical update” apparently completed with “funds already budgeted.” The “technical update” was not available to the public.

A formal records request was denied by the County’s interim Deputy County Counsel. It is hard to imagine that this response could be justified by 6255. I would greatly appreciate any recommendations you can make about how to pursue this.

A: Under Public Records Act (“PRA”), public records (which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure.  The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days.  (Gov’t Code § 6253).  If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek.  (Gov’t code § 6255).

It sounds like the agency is asserting section 6254(h) as the authority to withhold the records you seek.  Section 6254(h) exempts from disclosure the “contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreements obtained.”  From the information in your submission, it is not completely clear whether the Plumas County General Plan relates to either the acquisition of property by the county or to prospective public supply and construction contracts.  If it is, then the agency has the authority to withhold these records, but only “until all of the property has been acquired or all of the contract agreements obtained.”

If section 6254(h) is inapplicable to the situation you reference, it may be that the agency may have intended to cite section 6254(a), the “preliminary drafts” exemption, instead of section 6254(h).  Section 6254(a) exempts “preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.”  In order to qualify for exemption under this provision, therefore, the agency would need to establish that (1) the records at issue would not normally be retained in the ordinary course of business — that is, they would customarily be discarded; and (2) that the public interest in withholding the records clearly outweighs the public interest in disclosure.  Again, it is not clear whether this exemption would apply to the situation you reference.

Finally, the agency is also citing to the attorney-client privilege and section 6254(k) as the basis for withholding these documents.  If the information you are seeking qualifies as confidential attorney-client communication, then, the agency has a right to withhold those records.  Section 6254(k) exempts from disclosure any information that is exempt pursuant to state or federal law.  Confidential attorney-client communication (as that term is defined by the rules of procedure) is privileged under state law.  “The attorney-client privilege applies to communications in the course of professional employment that are intended to be confidential.”  Roberts v. City of Palmdale, 5 Cal. 4th 363, 371 (1993).  “Confidential communication” is defined as including “a legal opinion formed and the advice given by the lawyer in the course of that [attorney-client] relationship.” Id. (citing to Evid. Code, § 952).  “[U]nder the Evidence Code, the attorney-client privilege applies to confidential communications within the scope of the attorney-client relationship even if the communication does not relate to pending litigation; the privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.”  Id.  Thus, while any communication between the agency and its attorney can be withheld pursuant to this privilege, any other documents that do not constitute communication and that do not constitute attorney-work product would not be covered by the privilege.

I suggest you submit a second request under the PRA for the records you seek.  If section 6254(h) discussed above is clearly not applicable, then you might want to point that out to the agency.

The ultimate recourse under the PRA in the event of an improper denial is to initiate litigation.  It is sometimes helpful to remind the agencies that the prevailing parties in a PRA litigation are entitled to their attorneys’ fees.  Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”).  You might also point this in your next communication with the agency.