L. A. Cnty. Bd. of Supervisors v. Superior Court of L. A. Cnty.

• Decision Date: 29 December 2016
• Docket Number: S226645
• Citation: 2 Cal.5th 282,386 P.3d 773,212 Cal.Rptr.3d 107
• Court: California Supreme Court
• Parties: LOS ANGELES COUNTY BOARD OF SUPERVISORS et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; ACLU of Southern California et al., Real Parties in Interest.

2 Cal.5th 282

386 P.3d 773

212 Cal.Rptr.3d 107

LOS ANGELES COUNTY BOARD OF SUPERVISORS et al., Petitioners,

v. The SUPERIOR COURT of Los Angeles County, Respondent;ACLU of Southern California et al., Real Parties in Interest.

S226645

Supreme Court of California

Filed December 29, 2016

John F. Kratli, Mark J. Saladino and Mary C. Wickham, County Counsel, Roger H. Granbo, Assistant County Counsel, Jonathan McCaverty, Deputy County Counsel; Greines, Martin, Stein & Richland, Timothy T. Coates, Los Angeles, and Barbara W. Ravitz for Petitioners.

Horvitz & Levy, Lisa Perrochet, Encino, Steven S. Fleischman and Jean M. Doherty, Encino, for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Petitioners.

Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici Curiae on behalf of Petitioners.

Keith J. Bray, Long Beach; Dannis Woliver Kelley, Sue Ann Salmon Evans, Long Beach, and William B. Tunick, Sacramento, for Education Legal Alliance of the California

School Boards Association as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Peter J. Eliasberg, Los Angeles; Davis Wright Tremaine, Jennifer L. Brockett, Nicolas A. Jampol, Los Angeles,Rochelle L. Wilcox, Colin D. Wells, San Francisco, and Diana Palacios, Los Angeles, for Real Parties in Interest.

Reuben Raucher & Blum and Stephen L. Raucher, Los Angeles, for Beverly Hills Bar Association as Amicus Curiae on behalf of Real Parties in Interest.

Tom Myers and Arti Bhimani for AIDS Healthcare Foundation as Amicus Curiae on behalf of Real Parties in Interest.

Ram, Olson, Cereghino & Kopczynski and Karl Olson, San Francisco, for Los Angeles Times Communications LLC, McClatchy Newspapers, Inc., Gannett, First Amendment Coalition, California Broadcasters Association and California Newspapers Publishers Association as Amici Curiae on behalf of Real Parties in Interest.

Arthur S. Pugsley, Melissa Kelly; Joshua R. Purtle and Jaclyn H. Prange, San Francisco, for Los Angeles Waterkeeper and Natural Resources Defense Council as Amici Curiae on behalf of Real Parties in Interest.

Law Office of Chad D. Morgan and Chad D. Morgan, Corona, for Leane Lee, Nevada City, and Coalition of Anaheim Taxpayers for Economic Responsibility as Amici Curiae on behalf of Real Parties in Interest.

Cuéllar, J.

This case implicates both the public's interest in transparency and a public agency's interest in confidential communications with its legal counsel. The specific question we must resolve is whether invoices for work on currently pending litigation sent to the County of Los Angeles by an outside law firm are within the scope of the attorney-client privilege, and therefore exempt from disclosure under the California Public Records Act (PRA; Gov. Code, § 6250 et seq. ). What we hold is that the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure. But invoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege. The privilege therefore protects the confidentiality of invoices for work in pending and active legal matters.

I. BACKGROUND

On July 1, 2013, following several publicized inquiries into allegations of excessive force against inmates housed in the Los Angeles County jail system, the ACLU of Southern California and Eric Preven (collectively, the ACLU) submitted a PRA request to the Los Angeles County Board of Supervisors and the Office of the Los Angeles County Counsel (collectively, the County). The request sought "invoices" specifying the amounts that the County had been billed by any law firm in connection with nine different lawsuits alleging excessive force against jail inmates.

In a letter dated July 26, 2013, the County agreed to produce copies of the requested invoices related to three such lawsuits that were no longer pending, with attorney-client privileged and work product information redacted. The County declined to provide invoices for the remaining six lawsuits, which were still pending. According to the County, "the detailed description, timing, and amount of attorney work performed, which communicates to the client and discloses attorney strategy, tactics, thought processes and analysis" were privileged under the Evidence Code and therefore exempt from disclosure under Government Code section 6254, subdivision (k) (all undesignated cites hereafter are to the Government Code). The requested invoices, the County continued, were also exempt under the PRA's catchall provision, section 6255, subdivision (a), "because the public interest served by not disclosing the records at this time clearly outweighs the public interest served by disclosure of the records."

On October 31, 2013, the ACLU filed a petition for writ of mandate in the superior court, seeking to compel the County to "comply with the [PRA]" and disclose the requested records for all nine lawsuits. The ACLU framed its request for the invoices as follows:

"Current and former jail inmates have brought numerous lawsuits against the County and others for alleged excessive force. The County has retained a number of law firms to defend against these suits. It is believed that the selected law firms may have engaged in ‘scorched earth’ litigation tactics and dragged out cases even when a settlement was in the best interest of the County or when a settlement was likely. Given the issues raised by the allegations in these complaints and the use of taxpayer dollars to pay for the alleged use of scorched earth litigation tactics, the public has a right and interest in ensuring the transparent and efficient use of taxpayer money." Defending such lawsuits, the plaintiffs estimated, could cost tens of millions of dollars. After a hearing on June 5, 2014, the court granted the ACLU's petition. The court held that the County had failed to show the invoices were attorney-client privileged communications. As a result, the court ordered the County to release "the billing statements for the nine lawsuits identified in the July 1, 2013 [ ]PRA request." But "[t]o the extent these documents reflect an attorney's legal opinion or advice, or reveal an attorney's mental impressions or theories of the case," the court held that "such limited information may be redacted."

The County then filed its own petition for writ of mandate in the Court of Appeal, which granted the County's petition and vacated the superior court's order. The Court of Appeal found that "the invoices are confidential communications within the meaning of Evidence Code section 952," and therefore "are exempt from disclosure under Government Code section 6254, subdivision (k)." Relying on our decision in Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 101 Cal.Rptr.3d 758, 219 P.3d 736 (Costco ), the appellate court concluded that "the proper focus in the privilege inquiry is not whether the communication contains an attorney's opinion or advice, but whether the relationship is one of attorney-client and whether the communication was confidentially transmitted in the course of that relationship." And " ‘because the privilege protects a transmission irrespective of its content,’ " the Court of Appeal held that "the invoices"—which "constituted information transmitted by the law firms to the County in the course of the representation" and in confidence—were confidential communications within the meaning of Evidence Code section 952. Given this conclusion, the Court of Appeal did not reach the parties' contentions regarding application of the PRA's catchall provision or Business and Professions Code sections 6148 and 6149. We then granted review.

II. DISCUSSION

The primary question raised in this case is whether invoices for legal services transmitted to a government agency by outside counsel are categorically protected by the attorney-client privilege and therefore exempt from disclosure under the PRA, and if not, whether any of the information sought by the ACLU is nonetheless covered by the privilege.

A. Statutory Scheme

1. PRA

The PRA and the California Constitution provide the public with a broad right of access to government information. (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 164, 158 Cal.Rptr.3d 639, 302 P.3d 1026.) The PRA, enacted in 1968, grants access to public records held by state and local agencies. (§ 6250 et seq. ) Modeled after the federal Freedom of Information Act (5 U.S.C. § 552 et seq. ), the PRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425, 121 Cal.Rptr.2d 844, 49 P.3d 194.) Such "access to information concerning the conduct of the people's business," the Legislature declared, "is a fundamental and necessary right of every person in this state." (§ 6250.) Consistent with the Legislature's purpose, the PRA broadly defines "public records" to include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." (§ 6252, subd. (e).)

As the result of a 2004 initiative, Proposition 59, voters enshrined the PRA's right of access to information in the state Constitution: "The people have the right of access to information concerning the conduct of the people's business, and, therefore, ... the writings of public officials and agencies shall be open to public scrutiny." (Cal. Const., art. I, § 3, subd. (b)(1).) As amended by the initiative, the Constitution also directs that statutes "shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access." (Cal. Const., art. I, § 3, subd. (b)(2).)

Despite the value assigned to robust public...