A&A: Will attorney/client privilege keep me from learning how County is spending bond money?

Q: I recently asked my county Supervisor what code or law allowed them to use funds from a CSA (County Service Area), which is involved in a lawsuit. What was presented to the people in the ballot said nothing about using the funds for the legal defense of the County.

Is the information I requested attorney client privilege or is it public information? I look forward to your response.

[/vc_column_text][vc_column_text]A:  I believe your initial question is whether the county supervisor is obligated to inform you what code or law allows the county to use funds from a CSA in the situation you describe.

Generally speaking, California laws require government agencies to disclose most writings related to public business and require legislative bodies of government agencies to conduct most of their meetings in public.

But obtaining government information that is not reflected in public records or disclosed in public meetings can sometimes be difficult.  Forcing the government to explain its rationale for a particular course of action can be particularly challenging

Typically, the most useful vehicle for obtaining information about the workings of county government in California is the Public Records Act, which creates a presumptive right for members of the public to inspect or copy “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.”  Govt. Code § 6252(e), 6253.

The PRA provides for access to writings that already exist, and does not require agencies to respond to more general questions that do not relate to accessing public records.

Nevertheless, you may be able to use the PRA to obtain information that is relevant to your inquiry.  For example, if public records reflect the basis for the county’s contention that it is authorized to use the funds at issue, then you should be able to obtain a copy of those records, provided they are not exempt from disclosure under the PRA.

One of these exemptions covers writings protected by the attorney-client privilege and work-product doctrine, which are incorporated into the Public Records Act via Government Code § 6254(k).

In general, California law provides that confidential communications between a lawyer and a client are privileged and do not have to be disclosed.  Evid. Code §§ 954, 955.

Also, materials created by an attorney in the course of representing a client, i.e., “work product,” are generally protected from disclosure.  Civ. Proc. Code § 2018.030.

If the only writings that reflect the county’s contention as to its authority for using the funds are in the form of confidential communications between county personnel and legal counsel (for example, a written legal analysis of whether the county was authorized to use the funds), then the PRA may permit the county to refuse to disclose them based on attorney-client privilege.

Note, however, that the holder of the privilege – presumably the county in this scenario – can choose to waive the privilege.  It is only the attorney who is obligated not to disclose confidential communications without client consent.

To the extent you are seeking billing records that may reflect the expenditure, those are likely not exempt, even if the records relate to work done by a law firm.  In a 2012 California Court of Appeal case, the court found that such records were not exempt under the Public Record Act’s “pending litigation” exemption, which exempts from disclosure any records that were prepared for use in litigation.  County of Los Angeles v. Superior Court, 211 Cal. App. 4th 57, 67 (2012).

Any individual entries within those bills that might fall into some exemption under the PRA, e.g., attorney work-product information, could be redacted so that the records could be disclosed without revealing any privileged information.  However, the amount paid in legal fees should typically not be exempt from disclosure, and those portions of the bills showing what the county spent must typically be disclosed.

If you haven’t done so already, you might want to submit a written request for the records that might contain relevant information, which should compel a written response from the county on whether it will disclose the records.  If it is claiming the records are exempt, it will have to specify which exemption applies, and exactly how, which may give you a basis for arguing against the claimed exemption.

Bryan Cave 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.