Public Records Act Cannot Require Disclosure Of Public Agency’s Attorney Invoices For Open Cases; Supreme Court Waffles On Closed Cases

The Public Records Act (“PRA”) was passed to increase freedom of information by giving the public broad access to state and local agency records.  However, public agencies frequently hire attorneys to prosecute or defend actions on their behalf, leading to claims of attorney-client privilege when PRA requests are made.  The Supreme Court recently addressed the conflict between the public’s right to access an agency’s records with the agency’s right to protect confidential communications with its attorneys.  In Los Angeles County Bd. of Sups. v. Superior Court (2016) 2 Cal.5th 282, the ACLU requested invoices from the County showing what the County had been billed by its attorneys for several cases alleging use of excessive force in the jails.  The requests included both active and closed cases.

The County produced invoices for three cases that were no longer pending but asserted a privilege under the PRA for existing cases.  The trial court granted the ACLU’s petition and required disclosure of all invoices, including those for current cases.  The Court of Appeal reversed, holding that all of the invoices are confidential attorney-client communications.  The Supreme Court reversed.

The Supreme Court’s discussion focused on the issue as whether invoices for legal services to a public agency by outside counsel were always categorically exempt from the PRA, as the Court of Appeal held, or if not, whether any information sought in attorney invoices is required to be produced.  The Court held that a public agency’s attorney invoices are not automatically privileged under the PRA.  Instead, the invoices are privileged “only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose.”  The Court held that any invoice for an active matter falls into the second category.  However, the Court waffled a bit on litigation that had long concluded, holding that invoices may have to be disclosed in cases that were closed.

Unfortunately, while public agencies are required to make disclosures under the PRA as broad as possible, that often is not the case.  And the Supreme Court may have given them a blueprint to shield even more documents from the public’s eye.  Public agencies can simply request minute detail from their attorneys in the invoices to argue that they are privileged under the PRA.  For anyone seeking such invoices in the future, it is clear that no invoices for existing cases will be forthcoming.  Even cases that have been closed will likely receive an initial privilege claim from the public agency, leading to more costly litigation.

If you have any questions regarding the PRA, please contact Greg Woodard at (949) 769-6602.