Thursday, October 29, 2015
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C.A. Revives Challenge to Release of City Attorney Emails
By KENNETH OFGANG, Staff Writer
A San Diego Superior Court judge must reconsider an order requiring that many emails sent to or from the San Diego city attorney’s personal account, relating to city business, be publicly disclosed, the Fourth District Court of Appeal ruled yesterday.
Div. One ruled that the League of California Cities, which was the sender or recipient of many of City Attorney Jan Goldsmith’s emails, has standing to challenge the order, even though it was not a party to the trial court litigation between the city and San Diegans for Open Government.
Judge Joel R. Wohlfeil had ruled otherwise. The appellate court also ruled that Wohlfeil erred in declining to review some of the emails in camera before ruling that they were not covered by the attorney-client privilege.
The open government group, commonly known as SDOG, brought a California Public Records Act request for all of Goldsmith’s personal account emails that related to city business, sent or received during the years 2008 through 2013. The city asserted that various emails were exempt from disclosure, including those between an individual identified as the League of California Cities’ legal assistant and attorneys who were league members.
The exemption claims were based on the records assertedly not being public records or being subject to privilege.
SDOG petitioned for a writ of mandate, and Wohlfeil ordered that the city provide a privilege log. After that was done, he declined to review the emails in camera, concluded the city failed to meet its burden of proof, and ordered production of the emails.
The league petitioned for a writ of mandate, and the Court of Appeal stayed the order and issued an order to show cause.
SDOG’s Standing Argument
SDOG argued that the petition should be dismissed because the CPRA provides that orders compelling disclosure are reviewable only by writ, and that only “a party” may seek a writ. The league argued that “party” should be broadly interpreted to include the holder of a privilege when the trial court’s order requires disclosure of documents as to which the privilege was asserted in the trial court.
Justice Richard McIntyre said the league had the better argument, and that the holder of a beneficial interest in the outcome is a “party.”
Addressing the merits, the justice said the trial judge was correct in holding that the city failed to prove the privilege applied, but that he should have reviewed the emails in camera before ordering disclosure.
The league had argued that emails related to Goldsmith’s work on the league’s Legal Advocacy Committee, which makes recommendations as to whether the league should participate in litigation, as an amicus or otherwise, were not public records because the league is a private group. McIntyre concluded otherwise, noting parenthetically that there is a case pending in the state high court as to whether documents stored on officials’ private electronic devices can be held public records under the act.
Who’s the Client?
With respect to attorney-client privilege, the justice said it was unclear, with respect to emails sent by lawyers who were league members to other members, who was the attorney and who was the client, and no evidence was offered that the communications were intended to be confidential.
As to communications between the purported legal assistant and the other league member, there was “no competent evidence” that the person who sent the emails actually was acting as the attorney’s agent or that the emails “were actual communications between an attorney and a client,” McIntyre said.
The justice also wrote, however, that a judge hearing a CPRA case involving a claim of privilege must examine the allegedly privileged materials if there are “threshold factual questions” that can be answered by a review and the party asserting the privilege asks for one. That was, McIntyre said, the case with the legal assistant’s emails, since the review might establish that they were sent on the league attorney’s behalf.
The case is League of California Cities v. Superior Court (San Diegans for Open Government), 15 S.O.S. 5163.
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