Accessing Termination of Employment Records

Answer

Generally speaking, laws restricting access to records should not interfere with a person’s rights to review his or her own records.  Under Public Records Act (“PRA”), public records (which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure.  As you know, the PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days.  (Gov’t Code § 6253).  If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek.  (Gov’t code § 6255).

From the information in your submission, the city has asserted exemption 6254(k) of the PRA — which exempts any records that are exempt under state or federal law.  In this case, the city is stating that state or federal law exempts from disclosure emails to and from the city’s attorney as privileged attorney-client communication.  The PRA exempts records “the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”  Gov’t Code § 6254(k).  “By its reference to the privileges contained in the Evidence Code, therefore, the Public Records Act has made the attorney-client privilege applicable to public records.”  Roberts v. City of Palmdale, 5 Cal. 4th 363, 371 (1993).  “The attorney-client privilege applies to communications in the course of professional employment that are intended to be confidential.” Id.  “Confidential communication” is defined as including “a legal opinion formed and the advice given by the lawyer in the course of that [attorney-client] relationship.” Id. (citing to Evid. Code, § 952).  “[U]nder the Evidence Code, the attorney-client privilege applies to confidential communications within the scope of the attorney-client relationship even if the communication does not relate to pending litigation; the privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.”  Id.  Any email communication, therefore, to and from the city’s attorney can properly be withheld by the city (as the attorney’s client), if such communication was related to obtaining a legal opinion in the course of the attorney-client relationship, whether or not there was pending or threatened litigation.

The city seems to also be asserting the “official information” privilege, found under Evidence Code section 1040, to withhold emails from various parties to you while you were the Finance Director for the city.  The city is asserting that this information is confidential and that disclosure of such information is “against public interest.”   Evidence Code section 1040 states:

“As used in this section, ‘ 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.  A public entity has a privilege to refuse to disclose official information … if the privilege is claimed by a person authorized by the public entity to do so and … disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice….”

Note, therefore, in order to assert this privilege, the information must have been “acquired in confidence” and not previously shared with the public.  If the person/entity supplying this information failed to convey it in confidence or the agency failed to treat it as confidential, then the privilege does not arise.  From the information in your submission, it is unclear whether such information was “acquired in confidence.”  In addition, the only reason that the city has articulated for claiming that disclosure would be against public interest is that city staff needs to communicate with the Director of Finance without concern that such communication will be distributed to the public.  It is unclear whether a court of law would consider such reason sufficient to hold that disclosure would be against the public interest.

If you believe that the city has withheld the records improperly, you have the option of filing a lawsuit under the PRA.  The PRA provides that prevailing parties in a PRA litigation be awarded their attorneys’ fees.  Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”).  You might want to highlight this fact as well in your next communication with the city.