A&A: Report Request Denied Citing ‘Attorney Work Product, Official Info and Deliberative Process Privilege’

Q:  I am a reporter working on a story about medical care for in inmates at our county jail. I recently discovered that the county hired an outside consultant (a doctor) to conduct a review of those services. The consultant created a report that the county then used to implement reforms.

Naturally, I requested the report but was denied. Here was the county’s response:

“The Report you seek is a confidential document. [the doctor] was retained by County Counsel to conduct a jail and health facilities evaluation and risk management assessment and provide confidential input; the Report was prepared at the direction of County Counsel as a critical tool to assist County Counsel, the Sheriff and the Director of the Health Agency to formulate policy and assist in the Departments’ decision-making process. As such, the Report is protected from disclosure to the public by the attorney work-product privilege (Code of Civil Procedure §2018.030), the official information privilege (Evidence Code §1040), and the deliberative process privilege (Government Code §6255; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325).”

I’d like to get some guidance on this. Would such a report actually fall under these exemptions? If not, how should I craft my response to the county?

A: The fact that this report may have been commissioned with the involvement of county counsel does not, in my view, automatically mean that it is subject to the privileges/exemptions cited by the county here.

The attorney work-product privilege is incorporated into the Public Records Act through Government Code § 6254(k).  This privilege exempts from disclosure materials created by an attorney in the course of representing a client, i.e., “work product.”  Civ. Proc. Code § 2018.030.  However, these are narrow categories of records, and do not necessarily cover everything that a government attorney touches or discusses with other agency staff.

It’s unclear in the situation you describe how this particular document could be classified as attorney work product.  Although it may have been created at the direction of an attorney, it may not be the document is being used as a reflection of the attorney’s “impressions, conclusions, opinions, or legal research or theories.”  Civ. Proc. Code § 2018.030(a).  In other words, it may not be that this document is being used by the attorney in connection with his or her representation of the county, but rather is being used by the county itself in connection with providing medical care at the county jail.  Therefore, it may not be a document that is protected by this privilege.

Second, the analysis would be similar with respect to the county’s claim that this report is protected by the official information privilege contained in Evidence Code § 1040.  Per that statute,

“‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.’  Evid. Code § 1040(a).  A public entity has the privilege to refuse to disclosure official information ‘(1) if disclosure is forbidden by law or (2) if the necessity for preserving the confidentiality of the information outweighs the necessity for disclosure in the interest of justice.’”  Berkeley Police Ass’n v. City of Berkeley, 167 Cal. App. 4th 385, 400 n.15 (2008).

In this instance, as is the case with the deliberative process privilege, the county here would have to demonstrate that the public interest in preserving confidentiality outweighs the public interest in disclosure.

The deliberative process privilege, which stems from the Act’s catch-all exemption, provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).

Overall, this exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure, as the agency must set forth facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure.

I would suggest writing back to the county and asking that it be more specific about each of the three exemptions that it is claiming – i.e., how does each one apply to the record at issue.  In your letter, you could briefly state why you believe none of the claimed exemptions actually apply, and then ask the county to provide a more thorough explanation of how it believes the exemptions do apply should it continue to claim this record is exempt from disclosure.  You might also want to note that if the newspaper is required to bring a lawsuit to enforce its rights under the PRA, the county will be liable for your attorneys’ fees should the newspaper 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.

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