Q: I recently submitted a public records act request asking for all complaints filed by city employees against sitting council members. As a local journalist, I got a tip that a council member may have had a number of sexual harassment complaints filed against him.
After asking for several extensions, the city responded today. They objected to the request claiming:
(a) it seeks documents and information protected by the attorney-client privilege and the attorney work-product doctrine (Govt. Code 6254(k); Los Angeles County Bd. of Supervisors v Superior Court (2016) 2 cal.5th 282; County of Los Angeles Bd. of Supervisors v. Superior Court (2017) 12 Cal.App.5th 1264); and (b) it seeks disclosure of information from personnel files, which may constitute an unwarranted invasion of privacy (Gove. Code 6254(c).) Please note the City is working with each Council District to locate potentially responsive documents. A supplemental response to your request will be provided on August 10, 2018.
I’m hoping for some help to understand if this is something I should be fighting or these are actually protected documents that don’t fall under the scope of California’s Public Record Act.
A: Under the PRA, public records—which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code §6252(e)—are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
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 §§ 954-955. However, not everything that passes an attorney’s desk is covered by this privilege. Rather, “[i]n order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose.” Los Angeles Cty. Bd. of Supervisors v. Superior Court, 2 Cal. 5th 282, 297 (2016).
It is unlikely these complaints by city staff were for the purpose of “legal consultation.” Rather, they were likely intended to start the investigation process when such complaints are made. Any legal consultation surrounding these complaints would have been subsequent to their initiation, and would likely have been between the city attorney and the city council (or whatever remained of the city council following recusal by those implicated in the complaints), which would probably constitute the “client” in this situation. I cannot imagine that the city attorney can claim that every complainant was a “client” in situation, especially considering these staff members are, in essence, adverse to the city in filing these complaints.
As to the assertion that these complaints are “work product,” this simply doesn’t fit given these were not materials created by an attorney in the course of representing a client. Civ. Proc. Code§ 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.). Civ. Proc. Code
Given the above, it is hard to imagine how the initiating complaints would be covered by one of these privileges.
With respect to the second exemption cited by the City, agencies will often claim the records fall under the “personnel exemption” to the PRA, which provides that the PRA does not require disclosure of “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6254(c).
By its own terms, this provision makes clear that personnel records are not per se exempt. Rather, only those personnel records whose disclosure would constitute an unwarranted invasion of personal privacy may be withheld.
Though this exemption is routinely invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is controversial, the exemption was developed to protect intimate details of personal and family life—not official business judgement and relationships. Bakersfield City School Dist. v. Sup. Ct., 118 Cal. App. 4th 1041, 1045 (2004); Braun v. City of Taft, 154 Cal. App. 3d 332, 343-344 (1984).
California courts have established a fairly liberal standard for disclosure of public records relating to complaints or investigations of misconduct by public employees. They have held that there is a public policy against disclosure of “trivial or groundless charges,” but that “where the charges are found true, or discipline is imposed, the strong public policy against disclosure vanishes; this is true even where the sanction is a private reproval. In such cases a member of the public is entitled to information about the complaint, the discipline, and the ‘information upon which it was based.’” American Federation of State, County and Municipal Employees v. Regents of the University of Cal., 80 Cal. App. 3d 913, 918 (1978) (emphasis added); accord, Bakerfield City School Dist. v. Sup. Ct., 118 Cal. App. 4th 1041, 1044, 1046 (2004).
You might consider writing back to the city to let it know that you do not believe that any of the exemptions it is claiming apply, citing some of the reasons above, and demand that the complaints be released immediately. If you feel its appropriate, you can let the city know that should you be required to enforce your rights under the Public Records Act in court, the City would be required to pay your legal fees if you prevail.
Bryan Cave Leighton Paisner 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.