by Mark Wilson

The California Supreme Court held that legal billing statements in closed cases are not categorically exempt from disclosure under California’s Public Records Act (PRA).

Modeled after the federal Freedom of Information Act (FOIA), the California PRA allows broad public access to government information. In 2004, California voters passed Proposition 59, enshrining the right of public access in Article I, section 3, of the California Constitution.

Both the PRA and Constitution exempt certain records from public disclosure, including information protected by attorney-client privilege. Several publicized cases of excessive force against Los Angeles County jail prisoners prompted the American Civil Liberties Union (ACLU) of Southern California and Eric Preven to file a July 1, 2013 PRA request. The ACLU sought “invoices” including the amounts the County had been billed by any law firm in connection with nine excessive force cases.

“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,” the ACLU wrote. “It is believed that the selected law firms 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.” The County agreed to produce redacted invoices in three closed cases. It refused to disclose invoices in six pending cases.

On October 31, 2013, the ACLU filed a superior court action, seeking to compel the County to disclose the requested records in all nine lawsuits. The court granted ACLU’s petition, holding that the County failed to show the invoices were attorney-client privileged communications. The Court of Appeals vacated the superior court’s order, finding that “the invoices are confidential communications” which are exempt from disclosure.

Drawing a distinction between closed and ongoing litigation, the California Supreme Court reversed, holding that the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure. “When a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees,” the Court concluded. “The same may not be true for fee totals in legal matters that concluded long ago.”

“The contents of an invoice are privileged only if they communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose,” the Court found. “The latter category includes any invoice that reflects work in active and ongoing litigation.”

See: Los Angeles County Board of Supervisors v. Superior Court of Los Angeles County, Cal 4^th P3d (Cal 2016).