A&A: My CPRA request was denied due to “attorney-client privilege”

Q: The Chair of the Board of Directors for the Fire Protection District wrote a letter which was published in a local newspaper. In that letter he made public, for the first time, the existence of a report the District had received from a private legal firm.

He also made public some of the contents of the report. His exact text was, “This very expensive legal report states that each of these citations are either misinterpreted, inappropriate, or not applicable. This document states that your fire department is not in violation of any of the allegations.”

When I made a CPRA request for a copy of the report I was informed “the report has been withheld as it is considered attorney-client privilege”.

I question this logic. If a portion of the report had been previously made public by the client it seems that to claim attorney-client privilege for the entire report is not justified. I would very much like to hear your opinion on this question.

A: The purpose of the California Public Records Act (CPRA) is to increase freedom of information by providing access to information in the possession of public agencies.

To implement this policy, Government Code section 6253, subdivision (a) provides all persons with the right to inspect any public record maintained by state or local agencies, subject to various enumerated exemptions.  Among the records exempt from disclosure are documents protected by attorney-client privilege.

The protections for privileged records are not expressly listed in the CPRA, rather they are incorporated by Government Code section 6254(k), which exempts “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.”

Here, in the event the District received the report in the course of an attorney-client relationship, and it either includes a legal opinion or advice given by a lawyer (Evid. Code § 952), or the attorney’s impressions, conclusions, opinions, or legal research or theories (Cal. Code. Civ. Proc. § 2018.030), it would be protected from disclosure by either the attorney-client privilege or work product doctrines.

The question is whether the client, here the District, expressly or impliedly waived the privilege by disclosing a portion of the report in the newspaper.  Privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication.”  Evid. Code §912(a).

Here, if disclosing the “fire department is not in violation of any of the allegations” constitutes a significant part of the communication, the District may have waived the privilege.

 “What constitutes a significant part of the communication is a matter of judicial interpretation; however, the scope of the waiver should be determined primarily by reference to the purpose of the privilege.”  Transamerica Title Ins. Co. v. Superior Court, 188 Cal. App. 3d 1047, 1052 (1987).

“Where the disclosure sought is so related to the disclosure already made that the [holder] could not reasonably retain a privacy interest in preventing it, then the purpose of the privilege no longer exists, and it may be said that the privilege has been waived.”  Jones v. Superior Court, 119 Cal. App. 3d 534, 547-48 (1981).

Attorney-client privilege may also be impliedly waived if a party to litigation places into issue a matter that is traditionally privileged. Transamerica, 188 Cal. App. 3d at 1052.  Such an implied waiver can be found when a party states that it relied upon the advice of counsel, therefore putting attorney-client communication directly at issue.  See id. at 1053.

“Generally, too, the deliberate injection of the advice of counsel into a case waives the attorney-client privilege as to communications and documents relating to the advice.”  Id.  Whether express or implied, the scope of a waiver must be narrowly construed and “fit within the confines of the waiver.” Id. at 1052.

Here, there is an argument to be made that Director waived the privilege by publishing to the public the attorney’s legal conclusion that “the fire department is not in violation of any of the allegations.”

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.