Q: Our local fire district and its former chief, a “retired CalPERS annuitant,” are involved in a judicial process contesting a pension amount owed due to “double dipping”
The elected officials have held numerous closed sessions to discuss these legal matters. In an attempt to discover if the fire district is using taxpayer dollars to defend the chief’s portion of the CalPERS claim, I did a PRA request on to view a number of invoices paid for “legal expenses,” and received no response.
In reviewing the board’s packet, I noticed another payment for a “consultant,” so I sent my former PRA request again and added the new item. Hearing nothing again, I inquired; the secretary said she had been sick. At the board meeting last week, she said she would scan the requested invoices and email them to me on. Nothing came in–I sent an email stating I could come in and view this week–no response yet.
1–Can an “invoice” from a legal case be privileged and exempt from a PRA request?
2–Can a “retainer” agreement with the various law firms/consultants be privileged and exempt?
My suspicious mind wonders if they have not been asking the legal/consulting parties for “stripped” invoices without all the details that legal invoices normally contain.
A: The California Public Records act provides access to 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).
When a member of the public makes a request under the Public Records Act, the agency must respond within 10 days of the request, stating whether diclosable records exist that match the request and provide an estimated deadline for producing them. Govt. Code 6253(c).
Additionally, the agency receiving the request must help “the member of the public make a focused and effective request that reasonably describes an identifiable record or records.”Govt. Code § 6253. 1(a).
If an agency determines that a particular record is exempt they “shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular casethe public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Govt. Code § 6255(a).
If I am understanding your question, you are trying to get records relating to an invoice and retainer agreement with outside counsel hired by a government agency.
Agencies may claim such documents are exempt from disclosure under the pending litigation exemption contained in the Public Records Act under Government Code section 6254(b), or that the bills are attorney-client privileged under Evidence Code section 954, and are therefore exempt from disclosure.
Furthermore, California Business and Professions Code 6149 states, “A written fee contract shall be deemed to be a confidential communication.”
All of this said, the PRA “embodies a strong policy in favor of disclosure of public records.” Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1392–1393.
Ultimately, the burden is on the government agency claiming an exemption to show that an exemption applies.
Additionally any exemptions could likely be overcome by having confidential portions of the invoices blacked out or otherwise redacted.
For example, with respect to invoices, descriptions of the work performed that would be attorney-client privileged could be redacted, leaving only unprivileged information, including the amount in fees paid by the agency to the outside law firm, visible.
The same could be done with the retainer agreement. This method would likely be consistent with the PRA, which requires that “[a]ny reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Govt. Code § 6253.
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.