A&A: If A Lawyer Sends A Threatening Letter to A City Attorney Marked “Confidential” Is It?

Q: The entire re-casting of the agreement between the City and the County was initiated with a letter from a lawyer who wrote the City Attorney a letter. He attached a draft civil complaint of what they might file, a central set of arguments the consideration of which must have led to further discussions, and the nature of which the public has a compelling public interest to consider.

The lawyer appears to have marked the letter “confidential” or in similar manner, but that doesn’t make it so legally. Unless the recipient lawyer had already agreed to hold such a letter in such a manner, there was not agreement or contract about confidentiality. Given the recipient and sender were both representing public agencies subject to the California Public Records Act, an expectation of privacy cannot be demonstrated.

We don’t think there is any statute or case law that supports their position.

A: I would agree with your assessment that marking a letter between lawyers as “confidential” does not justify exemption under the Public Records Act.  Although the PRA exempts, via Government Code 6254(k), certain privileged communications, e.g., those protected by the attorney-client privilege per Evidence Code §§ 954, 955, and work product, as protected under Civil Procedure Code § 2018.03, I am unaware of a blanket exemption for letters between lawyers concerning threatened litigation.

Even if one could argue that confidential settlement offers are protected from disclosure under Evidence Code 1152 (which I’m not sure they are, given this provision merely prevents them from being used as evidence in court), as you note, this letter was sent before litigation was commenced.  If the agency here cannot identify a specific exemption that applies, then it seems there may not be one.

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