Q: “After conducting an extensive and diligent search for records that can be reasonably identified as coming within the scope of this request, the City is making available all responsive, non-privileged documents that it has in its possession.
I recently made a public records request regarding our local Historical Society. for 1. “all information and communications that have anything to do with the Historical Society, and/or any historic surveys, and/or anything or any communication that has to do with the Multiple Property Submission.” and 2. “any instance when Historical Society issued a statement regarding any building in the past four years that led to permitted changes.”
The Assistant City Manager explanation for denying most of my request with this explanation: “Please note, those City documents that are exempt from production under the Public Records Act under Government Code section 6254(f) – Deliberative Process Privilege and Government Code section 6254(k) – Attorney Client Communications/Attorney Work Product are not included in the response.”
How is anything the Historical Society says attorney-client privilege when the Historical Society is an independent non-profit?
A: 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, to the extent that any communication that was attorney-client privileged, but then was shared with a third party (e.g., a privileged communication between the city and its attorney that was then shared with the historical society), the privilege may have been waived.
The “deliberative process privilege” allows nondisclosure of records revealing the deliberations of agency officials. This doctrine was created by the California Supreme Court in 1991, in a case involving a request for the calendars of then Governor Deukmejian, and has since been applied in many other contexts, including records of phone calls by city council members, and records regarding applications to the Government for appointment to fill vacancies on county boards of supervisors. According to the Supreme Court, “the key question in every case is whether disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion with the agency and thereby undermine the agency’s ability to perform its functions.” Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991).
The ultimate recourse to enforce the PRA is a lawsuit. Gov’t Code § 6259. Note that “[t]he court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation” to enforce the PRA, but “[i]f the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.” Gov’t Code § 6259(d). At this point, you might want to write back to the city to ask that it be more specific about the exemptions it is claiming. You could remind the agency that should you be forced to file a lawsuit to enforce your rights under the PRA, the city will be liable for your attorneys’ fees.
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.