Agency answered cure & correct letter with demonstrable falsehoods

Answer

As you may know, under the Public Records Act, 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,” Gov’t Code § 6252(e) — are presumed to be open to the public, and therefore must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

The specific records that you seek — bills that reveal how much the agency is paying its attorney for legal representation — are probably subject to disclosure under the Act.However, the agency may attempt to withhold those bills based on either the pending litigation exemption (Gov’t Code § 6254(b)) or attorney-client privilege under the Evidence Code, which is incorporated into the Public Records Act by Government Code § 6254(k).

With respect to the pending litigation exemption, if, indeed, the bills are related to litigation that the agency is currently involved in, it may attempt to invoke this exemption, which applies to records that have been prepared for use in on-going litigation.Gov’t Code § 6254(b).

The fact that a requested record may be “involved in litigation” may not be sufficient to allow the agency to withhold the record.There is no court decision that I found that specifically interprets this exemption as applied to attorneys’ bills, although a California appellate court has stated that this exemption goes beyond attorney-client communications to encompass other materials specifically prepared for use in the litigation. See, e.g., City of Los Angeles v. Superior Court, 82 Cal.App.4th 819, 830 (2000).

Still, it would seem that any information contained in the bills directly pertaining to litigation strategy could be redacted, with the actual billing information (i.e., how much the agency is paying its attorneys) left intact.

With respect to the attorney-client privilege, this would cover a “confidential communication” between the agency and its attorney. “Confidential communication” is defined as “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 interests 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 includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”Evid. Code § 952.

In addition, materials created by an attorney in the course of representing a client — particularly those that reflect an attorney’s conclusions, opinions, legal research or theories — are considered attorney work product and are also generally protected from disclosure.

The courts that have addressed this issue have held that although the amount of money paid to attorneys is generally not protected by the attorney-client privilege, itemized statements and descriptions of work in attorney billing statements might reveal the nature of the services in enough detail to warrant protection.

When attorney invoices or agreements are at issue in court cases, the privilege/work product issue is often overcome by having confidential portions of the invoices blacked out or otherwise redacted. This method would likely be consistent with the PRA, which requires that “[a]ny reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Govt. Code § 6253.

The agency may also attempt to invoke the Act’s “catch-all” exemption, contained in Government Code § 6255(a).This exemption states that in order to justify withholding a record, the agency must show that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”Gov’t Code § 6255(a).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.”Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).

If you haven’t done so already, you might want to make a written request for the records you seek.Although not statutorily required, a written request should result in a written response, in which the agency, if it denies your request, should set forth the specific exemption that it is claiming justifies nondisclosure of the records, which will then give you the opportunity to respond with legal arguments as to why the records you seek should be disclosed.

You can find additional information on the Public Records Act on the FAC’s website at http://firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen 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.