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For the last couple of days, I’ve been having a very interesting discussion with a prominent public lawyer, who I’ve had public records spats with before, about my public records fight with the county.
The lawyer, who said I could quote him or her anonymously, said the county is on shaky legal ground by claiming that an investigation it conducted is protected by attorney-client privilege and therefore does not have to be released to the public under the California Public Records Act.
To re-cap: As I outlined in this story, the county spent more than a year investigating allegations about improprieties at a program it administers called California Children’s Services, which provides wheelchairs and other medical equipment to children with disabilities. A report was produced on the investigation, but the county has decide to keep that report from the public.
County officials have cited attorney-client privilege as the reason why they won’t release the document. Basically, because the investigation was carried out with the involvement of county attorneys, the county has argued that it does not have to be made public.
My source disagrees. Here’s an e-mail he or she sent me:
The County is so full of shit on this one.
California state law protects the attorney’s confidential communications pertaining only to the subject of communications in direct relation to a pending legal proceeding.
Interesting. No one at the county has represented to me that the investigation was completed because of pending legal action. Rather, I was told that the investigation was sparked by allegations made by a former employee. My attorney source elaborated on what the law says about attorney-client privilege:
No definition includes an entire investigation just because they used an attorney and had a stamp that said attorney-client privilege. In general the privilege only covers communications from the client directly to the attorney and arguably the advice given by the attorney to the client.
To back up the argument, my source sent me a link to a guide to attorney-client privilege compiled by the Office of General Counsel of The California State University. The eight-page document makes interesting reading, and it seems to back up my source’s argument.
Section VI of the guide states a number of circumstances in which attorney-client privilege does not apply. Here’s one of those circumstances:
Documents Provided to an Attorney
Documents do not automatically become privileged simply because they are transmitted to, or reviewed by, an attorney. What is privileged is the fact that a particular document has been provided to the attorney, for purposes of soliciting legal advice — not the document itself or the information it contains, unless the document was prepared specifically for the purpose of soliciting the attorney’s advice. Correspondence that is forwarded to an attorney for some purpose other than obtaining legal advice is not privileged.
So, just because the report that the county investigators produced was sent to and reviewed by county attorneys doesn’t immediately make that document privileged. The document must have been “prepared specifically for the purpose of soliciting the attorney’s advice.”
In this case, I know that the investigation and the report were completed to get to the bottom of allegations of misconduct. Whether or not the report was produced specifically to solicit legal advice is another question.
My source didn’t think it was.
“Was the report truly legal in nature? I don’t think so,” my source said. “The rule protects a document or conversation where I write to my attorney and say I need to get legal advice on something. Simply using an attorney as an umbrella to keep the documents or communication secret doesn’t count.”
I’ve put in a call to County Counsel John Sansone to discuss this issue with him.
That’s really interesting. To re-cap: The county investigated allegations about California Children’s Services, a program it oversees that provides wheelchairs and other medical equipment to children with disabilities. From the start, the county involved its lawyers in that investigation.
Because lawyers were involved, and because investigators marked their correspondence with county attorneys as “confidential attorney client communication,” the county has claimed that the correspondence and the final report do not have to be made public as they are exempt from disclosure under the California Public Records Act.
But, as my source points out, just because a lawyer is involved in an investigation doesn’t necessarily mean that the product of that investigation is a confidential document that shouldn’t be made public.
I called open government advocate and public records expert Terry Franke and ran the e-mail past him.
Franke said that at least some of the documents I’m hoping to get could be defined as communications from the client (the county) to its attorneys. Sending the report with the findings from its investigations to county lawyers, for example, could be defined as the county asking its lawyer for legal advice, which would be a privileged communication, Franke said.
But, as my attorney source pointed out, that doesn’t mean every single document the county produced during its investigation immediately falls under a blanket of attorney-client privilege and must remain secret, Franke said.