Sunshine Ordinance Preempted by City Charter Provision Creating Attorney-Client Privilege

The First District Court of Appeal determined that City of San Francisco (“City”) resident Allen Grossman (“Grossman”) was not entitled to documents related to the development of certain San Francisco Ethics Commission (“Commission”) regulations. The case concerned a group of documents that had been withheld on the basis of attorney-client privilege, even though the City’s Sunshine Ordinance required disclosure of the documents. The Court found that the attorney-client privilege afforded to the Commission’s communications with the City Attorney’s Office in the furtherance of seeking legal advice were enshrined in the City’s Charter, which preempted the Sunshine Ordinance (S.F. Admin. Code, ch. 67). (St. Croix v. Superior Court (2014) __ Cal.Rptr.3d ___ 2014 WL 3704275).

Background

Grossman made a request under the California Public Records Act (“CPRA”) and the City’s Sunshine Ordinance for documents related to the Commission’s rule-making development. A portion of Grossman’s request expressly sought written communications between the City Attorney’s Office and the Commission. John St. Croix, the Executive Director of the Commission, produced 120 documents, but withheld 24 documents on the basis of attorney-client privilege. Grossman petitioned for writ of mandate, arguing that the City’s Sunshine Ordinance expressly compelled the production of the requested documents, even though they would have otherwise been protected by attorney-client privilege. The City opposed the writ arguing that its Charter establishes the office of the City Attorney and incorporates California’s Evidence Code provisions regarding attorney-client privilege. Grossman’s argument, the City said, would effectively permit the Sunshine Ordinance to amend the Charter, an untenable proposition. The trial court granted Grossman’s petition and the City appealed.

Decision

Attorney-client privileged documents are generally exempt from disclosure in response to a CPRA request. ( Evidence Code § 6254, subd. (k).) “‘The attorney-client privilege, set forth at Evidence Code section 954, confers a privilege on the client to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . . .’ and has been a hallmark of our system of law for almost 400 years. Courts have held that although the ‘exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship’.” (St. Croix v. Superior Court (2014) __ Cal.Rptr.3d ___ 2014 WL 3704275; citing Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732.)

Nonetheless, Grossman argued that the City’s Sunshine Ordinance expressly required the production of the documents identified in his request which, among other things, sought legal opinions regarding the Ethics Commission’s rule-making. Grossman’s argument relied on the language of Section 67.24(b)(1)(iii) of the City’s Sunshine Ordinance, which reads that: “(1) Notwithstanding any exemptions otherwise provided by law, the following are public records subject to disclosure under this Ordinance: …(iii) Advice on compliance with, analysis of, an opinion concerning liability under, or any communication otherwise concerning the California Public Records Act, the Ralph M. Brown Act, the Political Reform Act, any San Francisco governmental ethics code, or this Ordinance.” Ostensibly, Grossman’s request fell into the purview of Section 67.24(b)(1)(iii).

In response, the City argued that its Charter, which established the office and duties of the City Attorney (1) incorporated California law regarding attorney-client privilege for written communications, and therefore (2) superseded the provision of the Sunshine Ordinance purporting to compel disclosure of documents that fell within the privilege.

The Court agreed, quoting a previous finding in Stuart: “[t]he City Charter represents the supreme law of the City and County of San Francisco, subject only to conflicting provisions in the United States and California Constitutions or to preemptive state law. The provisions of the City Charter supersede all municipal laws, ordinances, rules or regulations inconsistent therewith.” (Stuart v. Civil Service Com. (1985) 174 Cal.App.3d 201, 206.) The Court went on to find that since San Francisco’s Charter incorporates the attorney-client privilege, the Sunshine Ordinance could not eliminate the privilege.

Grossman’s implied argument, that the privilege should protect the disputed materials from disclosure only if the Commission can show that disclosure of the withheld documents would impair the City Attorney’s representation of the Commission, was also rejected by the Court.

What This Means To You

It may be time to review your agency’s sunshine ordinance. There are a number of documents, although in your agency’s possession, that are subject to protections that may preempt a sunshine ordinance, such as attorney-client privileged documents, certain law enforcement records, and records related to certain groups of vulnerable persons.

Topics:  Attorney-Client Privilege, Compliance, Disclosure Requirements, Ethics, Public Records, Public Records Act

Published In: Civil Procedure Updates, Conflict of Laws Updates, Elections & Politics Updates, Privacy Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kronick, Moskovitz, Tiedemann & Girard | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »