Legal Alerts Feb 26, 2019

Attorney-Client Privilege Successfully Argued by City in PRA Case

California Appellate Court Decision Says Even a Judge Can’t Review Privileged Records

Attorney-Client Privilege Successfully Argued by City in PRA Case

A recent California appellate court decision underscores the sanctity of the attorney-client privilege — holding that even an in camera review of claimed privileged communications is not permitted. This applies even though a court can require a public agency to provide a privilege log to justify a claim that requested records are exempt from disclosure as a public record.
 
In an unpublished decision issued Feb. 6, the Fourth District Court of Appeal reversed a lower court’s ruling that a public agency had to turn over records for an in camera review, pursuant to the Public Records Act. An in camera review allows a judge to privately review records in the judge’s chambers to determine if the records are actually exempt. It should be noted that this ruling is an unpublished decision and cannot be cited as precedent, but is instructive as to how the courts may view similar situations.
 
In City of Hemet v. Superior Court, the City claimed that several emails responsive to a request by Concerned Citizens of Hemet were exempt from disclosure because they were privileged attorney-client communications. The trial court judge ordered the City to produce a privilege log of the exempt records, but found the privilege log inadequate and ordered the City to produce the records for an in camera review. The City appealed the order and sought an immediate stay from the appellate court to protect the confidentiality of the attorney-client communications.
 
The Court of Appeal agreed that the privilege log was inadequate because it provided a conclusory statement that the records contained protected communications between the City and its legal counsel. According to the court, a more descriptive statement, such as “transmission of strategic documents/pleadings including analysis and legal assessment,” would have been sufficient. However, the Court of Appeal held that in camera review of the communications themselves was not an appropriate remedy to address the inadequate privilege log stating “The trial court should have ordered supplemental privilege logs and imposed appropriate sanctions as necessary if the [City] continued to provide inadequate information.”
 
The requester argued that the City waived its attorney-client privilege when it agreed to an in camera review, failed to produce the records and did not produce an adequate privilege log. The Court of Appeal rejected this argument outright and found that there were only three bases for a waiver of attorney-client privilege: disclosing the privileged communication in a non-privileged context; failing to claim the privilege when the holder of the privilege has standing and opportunity to do so and failing to assert the privilege in a timely response to an inspection demand.
 
For more information about this development or Public Records Act compliance, please contact the author of this Legal Alert listed at the right in BB&K’s Advanced Records Center, or your BB&K attorney.
 
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