Q: I am a journalist and victims advocate. I wanted to know about whether it was possible to get records of payments made by all County agencies–including the District Attorney’s office–to a child psychiatrist.
The psychiatrist was arrested for molesting hundreds of boys and was under contract to the courts for four decades. We have reason to believe the DA’s office hired him as well, which would make their prosecution of him a conflict of interest.
Is it possible to get these records of payments, receipts, invoices, etc? If so, how do I make a request for these? Would they keep records as far back as the 1980s?
A: As you may already know, the Public Records Act provides that public records including “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,” are presumed to be open to the public. Gov’t Code § 6252(e).
Any qualifying records must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. This includes any federal or state laws making records confidential.
There are many “general” exemptions under the Act that pertain to drafts of documents, notes, documents prepared for litigation or subject to attorney-client privilege, among others. See Gov’t Code § 6254(a)–(z). Under the Act, § 6254(k) also incorporates hundreds of “specific” exemptions that have been added over time. Many of these exemptions are listed, starting at § 6275.
Finally, there is a “catch-all” exemption that the government will sometimes invoke if a more specific exemption doesn’t apply. See Gov’t Code § 6255(a). This catch-all focuses on whether the public interest would be best served by disclosing or withholding the records. Id.
The District Attorneys’ (“DA”) office may attempt to invoke the impending litigation exemption, if, indeed, the bills are related to litigation that the DA’s office is currently involved in. This exemption applies to records that have been prepared for use in on-going litigation. Gov’t Code § 6254(b).
The fact that a requested record may be “involved in litigation” may not be sufficient to allow the agency to withhold the record. There is no court decision that I found that specifically interprets this exemption as applied to medical bills, although a California appellate court has stated that this exemption goes beyond attorney-client communications to encompass other materials specifically prepared for use in the litigation. See, e.g., City of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 830 (2000).
Still, it would seem that any information contained in the bills directly pertaining to litigation strategy could be redacted, with the actual billing information (i.e., how much the DA is paying its witnesses) left intact.
With respect to the attorney-client privilege, this would cover a “confidential communication” between the DA and its attorney (if applicable). “Confidential communication” is defined as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interests of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” Evid. Code § 952.
In addition, materials created by an attorney in the course of representing a client — particularly those that reflect an attorney’s conclusions, opinions, legal research or theories — are considered attorney work product and are also generally protected from disclosure.
It seems unlikely that the attorney-client privilege would apply for the DA in the situation you described, but it is probably likely that the work product privilege would. All documents they created as part of their strategy in those cases, including discussions with Dr. Ayres, are protected. Unlike the pending litigation exemption mentioned above, this is true even though many years have passed since some of those cases transpired.
I am not aware of any specific provisions that exempt records of payments for psychiatric services; however, because there are so many highly-specific exemptions, just because I am unaware of one does not mean it has not been created.
An exemption for mental health records has been incorporated from the Welfare and Institutions Code §§ 4132 and 5328. Yet, this, like the general exemption for personnel and medical records in § 6254(c), seems to be geared more towards attempts to obtain the actual patient information rather than payment information.
If they reject a formal written request, their response will need to identify the exemption or other justification for their denial. Once armed with that information, it will be possible to better assess the legitimacy of their claim.
In making your request, Government Code § 6253(b) indicates that you must “reasonably describe an identifiable record or records.” The California Public Records Act does not require that the request be made in writing; however, that is something you may want to consider:
For one, it creates a record of when you made your request (in case you decide to litigate in the future).
Secondly, a written request then requires the agency to provide a written response. Gov’t Code § 6255(b).
There is also no requirement that you provide your name, address, or reason for the request. Gov’t Code § 6257.5.
You can find a sample request letter, at the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-records/. I’m not certain if they will have records going all the way back to the 1980’s, but they’ll have to disclose why they cannot or will not provide the records if they deny your request. Because their denial, if you receive one, will help answer many of your questions, I suggest you make a formal request and see how that progresses.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.