Do legal fees count under pending litigation CPRA exemption?

Answer

Under the Public Records Act, public records there are two provisions. The first covers records related to “pending” litigation, and the second covers records that are attorney-client communications or attorney-work product protected by the California Evidence Code. It sounds like the County has invoked the exemption related to pending litigation. Please note that the other exemption is also relevant to your question.

In order for the pending litigation exemption to apply two requirements must be met. First, the records sought must have been prepared for use in the litigation. Second the litigation must be ongoing. This exemption only applies to records created for use in litigation, and therefore the fact that the requested record is “involved in litigation” may not be sufficient to allow the agency to withhold the record. It would seem as though attorney bills are not created for use in litigation, but are rather records that are simply involved in litigation.

Note that the rationale for this exemption is avoiding government agencies’ being compelled to harm their own interests in litigation by having to disclose materials prepared for use in the litigation. Accordingly, whether the disclosure of the amount spent in litigation could possibly prejudice the agency in the litigation may be a relevant factor for consideration.

Even if it appears that “pending” litigation exemption does not apply to your request, the attorney-client privilege or attorney-work product doctrine may apply. Government Code section 6254(k) applies to “[r]ecords, 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.”

Generally speaking, the attorney-client privilege would cover a “confidential communication” between the county 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 interest of the client in the consultation or those to whom disclosure reasonably necessary for the legal opinion formed and the advice given by the lawyer in the course of that relationship.” Evid. Code section 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 statement 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 sec. 6253.

Bryan Cave LLP is general counsel to the First Amendment Coalition and responds to First Amendment Coalition 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.