Q: Cal Fire claims to have released all documents related to a request with the exception of “documents that are protected by attorney-client privilege.” Is there a way to find out what was redacted/withheld?
A: It appears that Cal Fire invoked the attorney-client privilege exemption in order to withhold the documents.
In general, California law provides that confidential communications between a lawyer and his or her client are privileged and do not have to be disclosed. Evidence Code sections 954-955. In addition, materials created by an attorney in the course of representing a client, known as “work product,” are generally protected from disclosure. Code of Civil procedure section 2018.030. (An attorney’s conclusions, opinions, legal research or theories are nearly always protected. Other kinds of work product, such as factual information gathered by an attorney, is given only qualified protection and may be subject to disclosure if a sufficient need is shown.). Code of Civil procedure section 2018.030.
As Cal Fire notes, the PRA does not require agencies to prepare a privilege log or other kind of index of records it is withholding. However, the burden is on the agency to show that an exemption applies. If Cal Fire’s letter to you did not provide sufficient information to show that the withheld records are subject to attorney-client privilege, you might consider asking for additional information to allow you to conclude for yourself that the records were privileged. The agency might not need to provide the level of detail that would be useful to you, but it could be worth a shot.
In addition, if a responsive record contains both exempt and non-exempt material, the agency should redact the exempt material and produce the redacted record. This might not describe records at issue for you, but it can sometimes be useful to remind the agency (by asking, for example, to confirm that the records withheld did not contain any non-exempt material).
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. No attorney-client relationship has been formed by way of this response.