Authored Articles & Publications Nov 16, 2015

California Appellate Court Addresses Release of City Attorney’s Private E-mails

By Gary W. Schons, Shawn Hagerty and Matthew Green

An appellate court ordered a trial court judge to reconsider his order that e-mails to and from the San Diego city attorney’s personal account be released publicly. The League of California Cities argued that e-mails between its Advocacy Committee and City Attorney Jan Goldsmith, who is a member of that committee, were privileged attorney-client communications and exempt from release under the Public Records Act.

In a recent published decision in the closely watched case, the Fourth District Court of Appeal concluded that the League had a “beneficial interest” in the litigation and its outcome as a holder of the privilege, and therefore had standing to seek review of the trial court’s order. On the merits, the appellate court found that there was not enough evidence to determine whether the e-mails were, in fact, subject to the attorney-client privilege. So, the trial judge erred when he failed to review the e-mails in chamber, as the City had proposed, the opinion stated.

A citizen’s advocacy group went to court to press for the e-mails’ release under the PRA of five years of Goldsmith’s e-mails that pertained to official business of the City of San Diego from his private email account. Some of those e-mails included correspondence between a legal assistant for the League and attorney members, including Goldsmith. The City asserted the records were not public records under the Act and that they were otherwise privileged. The trial court judge declined to review the actual e-mails and ordered that they be produced, finding the City had failed to carry its burden to demonstrate they were privileged. The League filed a writ in the appellate court seeking to overturn the trial court’s disclosure order.

The appellate court sent the case back to the trial court and directed it to review the e-mails in chambers to determine if they are privileged attorney-client or work product communications.

(Disclaimer: Best Best & Krieger represents the League of California Cities in this case.)

Note: This article originally appeared on the now-defunct BBKnowledge blog, where Best Best & Krieger authors shared their knowledge on emerging issues in public agency law.

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