Q: A school district in California is refusing to disclose the amounts paid to outside legal counsel to defend itself in a federal lawsuit filed by a school board member. District officials are citing the appellate decision in LA County Board of Supervisors v. Superior Court as supporting case law. Have you encountered this defense? Is it legitimate?
A: Attorney-client privilege is an exemption to the California Public Records Act (the “CPRA”), and it is often asserted when a request is made for legal bills paid by a governmental agency to a private law firm. Most agencies that receive requests under the CPRA for records of amounts paid to law firms take the position that the bills are exempt from disclosure under the attorney-client exemption. Many times they argue that because bills generally contain a description of the work performed, disclosure could prejudice the agency’s position with respect to their legal adversary. Some agencies have argued that merely releasing the amount of monies expended could, in particular cases, prejudice their position.
However, legal bills, like other records held by governmental agencies, are presumptively a matter of public record. While there may be portions of the bills that could prejudice the agency, the burden is on the agency to demonstrate that fact and redact those portions of the record before providing the remaining portions to the requester. Unless the information in the bill would prejudice the legal position of the agency in the case, it should be released. As a general rule, the amount of the bill should always be a matter of public record.
Los Angeles Cty. Bd. of Supervisors v. Superior Court, 2 Cal. 5th 282, 293-94 (2016), acknowledged that the attorney-client privilege does not categorically shield everything in a public entity’s attorney’s billing invoice from CPRA disclosure. There, the Supreme Court held that when a legal matter remains pending and active, the attorney-client privilege encompasses everything in an attorney’s invoice to a client, including the amount of aggregate fees. Id. at 297. If the case is no longer pending, however, then this protection would likely not extend to the county’s legal bills. Id. at 298.
If this is the case, we typically recommend submitting a written request to the agency from which you are seeking records, as this will compel a written response. Written CPRA requests are fairly straightforward, but typically ask for categories of records that include, but are not limited to, correspondence, emails, notes, memorandums, electronic records, etc. After the request is received, the agency will have 10 days to respond to the request, though it may claim an additional 14 days under certain circumstances (but they’ll need to write to you and let you know they’re taking the additional time). The agency must disclose the records “promptly” after identifying whether it does indeed have records responsive to the request. Gov’t Code § 6253(c).
If you want to make a CPRA request, I would recommend directing your request to the city department that is likely to possess the records you seek. For these types of requests, I would recommend submitting both electronically (via the city’s website, or by email) as well as by some other method, e.g., US mail or hand delivery. You can read more about the CPRA on the FAC’s Public Records Primer.
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.