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CA Appellate Court Protects EC Legal Advice on the Basis of Privilege
Thursday, July 31st, 2014
The logic of a California appellate decision on Monday, in the case of St. Croix v. Superior Court (A140308, July
28, 2014) (attached; see below), doesn't seem right to me. It skips steps. St. Croix is
the executive director of the San Francisco Ethics Commission, and
this matter involves a public records request for documents relating
to the commission’s regulations governing ethics complaints. Here's
how the court's logic goes:
1. State Evidence Code section 954, confers an attorney-client privilege on the client "to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . . ."
2. The state Public Records Act (CPRA) provides an exception to public records requirements for documents that fall within the attorney-client privilege.
3. The court in Roberts v. City of Palmdale, 5 Cal.4th 363, 370 (1993) said, “By its reference to the privileges contained in the Evidence Code, . . . the [CPRA] has made the attorney-client privilege applicable to public records.”
4. Because the San Francisco charter designates that the city attorney “[u]pon request, provide advice or written opinion to any officer, department head or board, commission or other unit of government of” the city, an attorney-client relationship is created with any agency that seeks such advice, and this relationship "incorporates" the attorney-client privilege.
5. Because the charter creates this relationship and incorporates this privilege, no city ordinance can remove this privilege.
6. This is true even though the CPRA §6253(e) permits localities to provide greater access to records than the CPRA itself requires: “Except as otherwise prohibited by law, a ... local agency may adopt requirements for itself that allow for ... greater access to records than prescribed by the minimum standards set forth in [the CPRA].” The court's argument is that this provision "does not purport to authorize a locality to enact an ordinance about records access that conflicts with the locality’s governing city charter. To change local law in this circumstance, a charter amendment is necessary."
The court's logic is problematic in three ways. First, the court's logical progression begins with the state evidence code, which has nothing to do with the matter under consideration by the court. Evidence involves litigation. No one is questioning whether the attorney-client privilege applies in matters involving litigation. An EC's consideration of regulations is as far from litigation as one can get. It involves policies and procedures, which are not exceptions to public records acts.
In any event, the Evidence Code provision itself only provides a privilege for "confidential communication." However, SF law states that an agency's communications with its attorney, at least where another exception is not met (such as relation to litigation), are not confidential, and the charter says nothing to override this lack of confidentiality. Therefore, the Evidence Code, even if it applied to the situation, would not apply in SF, where such communications are not considered confidential. The court in this case did not speak to this. It skipped it altogether.
It is true that the Roberts decision did apply the Evidence Code's attorney-client privilege provision to a public records situation. But that case involved the appeal of a city planning commission's approval of a parcel map application to a city council, and the city attorney's legal opinion letter about the validity of the appeal and how the council should deal with it. In other words, the council was acting in a quasi-judicial role in a litigation matter.
The state Evidence Code was relevant to the Roberts situation and, therefore, its attorney-client privilege provision could be applied to that public records request. But this does not make the Evidence Code relevant to the situation before the court. The court did nothing to explain this logical step. Therefore, this step is questionable.
Second, everything else rests on the charter's "incorporation" of the attorney-client privilege. This "incorporation" derives solely from the fact that the charter says that one of the city attorney's roles is to provide advice to city agencies. The court took a long step between the city attorney's role (which is the same in every city in the United States and included in just about every charter, and not something special to the San Francisco charter) and the attorney-client privilege.
What is it about designating a city attorney's role that so clearly provides a privilege that cannot be changed by ordinance? If a charter said such a privilege existed, I would agree. But San Francisco's does not say this. Therefore, its non-statement of this does not take precedence over an ordinance.
Also, the court's logic ignores the important question, Does a public agency have an attorney-client privilege when both the agency and the city attorney represent the very same client, the public. Public records rules are there to protect and enhance the access to information of their client. Even if there were such a privilege, who would be able to decide whether to waive it or not? And wouldn't any such decision be based on the city and state's public records laws, which have, effectively, already made the decision for them?
The court should have gone through this logical progression. But it did not. It did not consider who the client is that holds the attorney-client privilege in San Francisco. It simply assumed that the EC held this privilege. It did not consider whether the client should be guided by an ordinance that speaks directly to the issue at hand: whether the privilege applies to public records requests. These failures place the decision in question.
Third, the court does not consider the fact that the state legislature, when it allowed local governments to provide greater access to public records than the CPRA allows, recognized that this referred to the exceptions (where else would greater access come from but dropping exceptions?). It could have excepted the attorney-client privilege from the greater access provision in recognition of the fact (as the court presents it) that defining a city attorney's role in a charter prevents this exception from being dropped. But since every city in the state most likely gives its city attorney this role, the legislature either recognized this role definition was irrelevant to the attorney-client privilege exception or did not feel that it gave rise to a privilege that would prevent cities from passing laws that provide access to communications between its city attorney and its agencies. The court should have at least considered these possibilities. Instead, it skipped a logical step and made another assumption.
Additionally, since transparency is central to government ethics, outside a situation where making records public could jeopardize an ongoing proceeding or make personal information public, an EC should not withhold records. When I administered the New Haven Democracy Fund, which ran the city's public campaign financing program, I was the one who provided advice on legal matters, and I handed out my memos to the press at meetings of the fund's board. The board's members unanimously wanted this transparency, because they recognized how important it was to be transparent as possible when you are handing out public funds to candidates.
Even if the court's logic were solid, I still don't think the EC should have withheld legal advice relating to the promulgation of regulations just because it came from the city attorney (the implication is that if it had come from the executive director or an outside attorney, the advice would have been public, even if exactly the same, which makes no sense from a public policy point of view). And I don't think the city council should have let the EC do this or allowed this litigation — and certainly not this appeal — to have proceeded.
Finally, the city attorney has too great a role in the city's transparency program. He oversees the program as "supervisor of records," while at the same time creating numerous documents and being required to advocate for those who do not want to make records public, even for the reason that a document was drafted by the city attorney. Wearing all these hats does not belong anywhere in government, especially in a government ethics program.
Robert Wechsler
Director of Research-Retired, City Ethics
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1. State Evidence Code section 954, confers an attorney-client privilege on the client "to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . . ."
2. The state Public Records Act (CPRA) provides an exception to public records requirements for documents that fall within the attorney-client privilege.
3. The court in Roberts v. City of Palmdale, 5 Cal.4th 363, 370 (1993) said, “By its reference to the privileges contained in the Evidence Code, . . . the [CPRA] has made the attorney-client privilege applicable to public records.”
4. Because the San Francisco charter designates that the city attorney “[u]pon request, provide advice or written opinion to any officer, department head or board, commission or other unit of government of” the city, an attorney-client relationship is created with any agency that seeks such advice, and this relationship "incorporates" the attorney-client privilege.
5. Because the charter creates this relationship and incorporates this privilege, no city ordinance can remove this privilege.
6. This is true even though the CPRA §6253(e) permits localities to provide greater access to records than the CPRA itself requires: “Except as otherwise prohibited by law, a ... local agency may adopt requirements for itself that allow for ... greater access to records than prescribed by the minimum standards set forth in [the CPRA].” The court's argument is that this provision "does not purport to authorize a locality to enact an ordinance about records access that conflicts with the locality’s governing city charter. To change local law in this circumstance, a charter amendment is necessary."
The court's logic is problematic in three ways. First, the court's logical progression begins with the state evidence code, which has nothing to do with the matter under consideration by the court. Evidence involves litigation. No one is questioning whether the attorney-client privilege applies in matters involving litigation. An EC's consideration of regulations is as far from litigation as one can get. It involves policies and procedures, which are not exceptions to public records acts.
In any event, the Evidence Code provision itself only provides a privilege for "confidential communication." However, SF law states that an agency's communications with its attorney, at least where another exception is not met (such as relation to litigation), are not confidential, and the charter says nothing to override this lack of confidentiality. Therefore, the Evidence Code, even if it applied to the situation, would not apply in SF, where such communications are not considered confidential. The court in this case did not speak to this. It skipped it altogether.
It is true that the Roberts decision did apply the Evidence Code's attorney-client privilege provision to a public records situation. But that case involved the appeal of a city planning commission's approval of a parcel map application to a city council, and the city attorney's legal opinion letter about the validity of the appeal and how the council should deal with it. In other words, the council was acting in a quasi-judicial role in a litigation matter.
The state Evidence Code was relevant to the Roberts situation and, therefore, its attorney-client privilege provision could be applied to that public records request. But this does not make the Evidence Code relevant to the situation before the court. The court did nothing to explain this logical step. Therefore, this step is questionable.
Second, everything else rests on the charter's "incorporation" of the attorney-client privilege. This "incorporation" derives solely from the fact that the charter says that one of the city attorney's roles is to provide advice to city agencies. The court took a long step between the city attorney's role (which is the same in every city in the United States and included in just about every charter, and not something special to the San Francisco charter) and the attorney-client privilege.
What is it about designating a city attorney's role that so clearly provides a privilege that cannot be changed by ordinance? If a charter said such a privilege existed, I would agree. But San Francisco's does not say this. Therefore, its non-statement of this does not take precedence over an ordinance.
Also, the court's logic ignores the important question, Does a public agency have an attorney-client privilege when both the agency and the city attorney represent the very same client, the public. Public records rules are there to protect and enhance the access to information of their client. Even if there were such a privilege, who would be able to decide whether to waive it or not? And wouldn't any such decision be based on the city and state's public records laws, which have, effectively, already made the decision for them?
The court should have gone through this logical progression. But it did not. It did not consider who the client is that holds the attorney-client privilege in San Francisco. It simply assumed that the EC held this privilege. It did not consider whether the client should be guided by an ordinance that speaks directly to the issue at hand: whether the privilege applies to public records requests. These failures place the decision in question.
Third, the court does not consider the fact that the state legislature, when it allowed local governments to provide greater access to public records than the CPRA allows, recognized that this referred to the exceptions (where else would greater access come from but dropping exceptions?). It could have excepted the attorney-client privilege from the greater access provision in recognition of the fact (as the court presents it) that defining a city attorney's role in a charter prevents this exception from being dropped. But since every city in the state most likely gives its city attorney this role, the legislature either recognized this role definition was irrelevant to the attorney-client privilege exception or did not feel that it gave rise to a privilege that would prevent cities from passing laws that provide access to communications between its city attorney and its agencies. The court should have at least considered these possibilities. Instead, it skipped a logical step and made another assumption.
Additionally, since transparency is central to government ethics, outside a situation where making records public could jeopardize an ongoing proceeding or make personal information public, an EC should not withhold records. When I administered the New Haven Democracy Fund, which ran the city's public campaign financing program, I was the one who provided advice on legal matters, and I handed out my memos to the press at meetings of the fund's board. The board's members unanimously wanted this transparency, because they recognized how important it was to be transparent as possible when you are handing out public funds to candidates.
Even if the court's logic were solid, I still don't think the EC should have withheld legal advice relating to the promulgation of regulations just because it came from the city attorney (the implication is that if it had come from the executive director or an outside attorney, the advice would have been public, even if exactly the same, which makes no sense from a public policy point of view). And I don't think the city council should have let the EC do this or allowed this litigation — and certainly not this appeal — to have proceeded.
Finally, the city attorney has too great a role in the city's transparency program. He oversees the program as "supervisor of records," while at the same time creating numerous documents and being required to advocate for those who do not want to make records public, even for the reason that a document was drafted by the city attorney. Wearing all these hats does not belong anywhere in government, especially in a government ethics program.
Robert Wechsler
Director of Research-Retired, City Ethics
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 St. Croix v Superior Court 0714.pdf | 0 bytes |
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