A&A: CPRA request was denied for document discussed in open session

Q: I cover the County Board of Supervisors. During a discussion in open session regarding a legal settlement involving a civil lawsuit against the county filed by a victim of alleged sexual molestation by a county physician, the supervisors discussed corrective action the county would take in response to the lawsuit.

However when I asked for a copy of the Corrective Action Plan document, which is sometime posted with the settlement information, I was told the document was “confidential.”

I immediately filed a PRA because I understood since the document was discussed in open session, it became part of the public record. the board in open session, also referred the Corrective Action Plan back to the department head.

I received a response to my PRA that the document was exempt from disclosure citing attorney-client privilege. I would like to get an opinion as to whether that is accurate.

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A: Under the Brown Act, “writings, when distributed to…a majority of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records under the California Public Records Act.”  Gov’t Code § 54957.5(a).

However, “this section shall not include any writing exempt from public disclosure [under the Public Records Act].”  Gov’t Code § 54957.5(a).  From what I understand, the Corrective Action Plan was not distributed to the legislative body at the meeting—it was just discussed.  As such, there may not necessarily be any right to the document per the Brown Act itself.

Nonetheless, unless some exemption applies, it may be subject to disclosure under the PRA. 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.  Depending how the Corrective Action Plan was created, it may not qualify as a privileged document.

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.  Cal. Code. Civ. Proc. § 2018.030.

However, these are narrow categories of records, and in the event the Corrective Action Plan was negotiated with the plaintiff—who is not the City attorney’s client—as a part of the settlement, it would not be privileged.  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.”

In the event the Corrective Action Plan could be considered a privileged document, the County Board of Supervisors may have waived the privilege by disclosing its content in open session:

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).

 “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 the Board waived the privilege by discussing a significant part of the Corrective Action Plan, and proposed response to the lawsuit, in open session.

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.