A&A: How does one deal with CPRA Request Response Denying the Records As ‘Privileged’?

Q: How does one deal with ‘Privileged’ designation in a Public Records Act request response?

A:  Both the attorney-client privilege and the attorney work-product privilege are incorporated into the Public Records Act through Government Code
§ 6254(k).

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).

Likewise, the attorney-work product privilege exempts from disclosure materials created by an attorney in the course of representing a client, i.e., “work product,” and must be a reflection of the attorney’s “impressions, conclusions, opinions, or legal research or theories.”  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.

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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