Q: I am trying to investigate reports that a city councilman in one of the cities I cover has driven the city car recklessly or under the influence of alcohol. Sources tell me that the city manager notified city council members via email of a complaint filed by a citizen that this council member cut him off in traffic, made a vulgar hand gesture and used obscene language while driving the city vehicle. I made a public records act request seeking a copy of this email and was informed that I could not get this email because the city attorney had been copied and it was covered by attorney/client privilege. Is this allowed under the Public Records Act?
A:Attorney-client discussion are exempt from disclosure under the Public Records Act, Govt Code sections 6254(k), (incorporating Evidence Code section 954) 6254.25, and 6276.04. However, the city council, as the client and thus holder of the privilege, almost always has the option of waiving the privilege and disclosing the record if it so chooses.
Whether the mere act of cc-ing one’s lawyer on a communication transforms the communication into the “confidential communication between client and lawyer” that is covered by the privilege is a difficult question. Evidence Code section 952 defines these “confidential communications” broadly to include any “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted . . . .” And I am not aware of any case in which a court has interpreted California law on this issue.
However, in numerous other cases around the country, interpreting similar and sometimes identical provisions of other states’ laws, courts have found that merely cc-ing an in-house or governmental lawyer on a communication that did not actually seek legal advice or respond to any legal advice was not privileged. See Pacamor Bearings Inc. v. Minebea Co., 918 F. Supp. 491, 511 (D.N.H. 1996); United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163 (E.D.N.Y. 1994); Miner v. Kendall, 1997 WL 695587 (D. Kan. 1997); In re Central Gulf Lines, 2000 WL 1793395 (E.D. La., Dec. 4, 2000); Hardy v. New York News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987); Griffin v. Smith, 688 S.W.2d 112 (Tex. 1985); In re Google, Inc., 462 Fed. Appx. 975 (Fed. Cir. 2012). See also In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 809 (E.D. La. 2007) (“When e-mail messages were addressed to both lawyers and non-lawyers for review, comment,and approval, we concluded that the primary purpose of such communications was not to obtain legal assistance since the same was being sought from all.”). The communication will not be privileged unless it is clear that the communication was made for the primary purposes of obtaining legal advice. United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal. 2002). If the legal and non-legal purposes of a communication are inextricably intertwined, the legal advice purpose must predominate over the non-legal advice purpose.
These decisions are supported by California law that generally holds that documents prepared by a person do not become privileged merely because they are turned over to an attorney. Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal. App. 4th 110, 119 (1997).
You may want to cite these cases to the city council.
Of course, the city council may respond that the very reason the counsel was cc-ed was so that legal advice can be provided.
Bryan Cave 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.