California Public Records Act:
Exemption for Privileged & Confidential
Information
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Q: What kinds of record does the privileged and otherwise
confidential information exemption apply to?
Q: What is the significance of the privileged and otherwise
confidential information exemption?
Q: What are some of the confidentiality rules that the
exemption might refer to?
Q: How is the privileged/confidential exemption typically
used?
Q: How does the attorney-client privilege operate as a CPRA
exemption?
Q: How can the attorney-client privilege be waived and
unavailable as a CPRA exemption?
Q: Is fee information -- billings submitted to a public agency
client by outside counsel, the amounts paid by the agency, or both -- protected by the
attorney-client privilege?
Q: How does the official information privilege operate as a
CPRA exemption?
Q: When does the official information privilege apply as a
CPRA exemption?
Q: How does the trade secret privilege operate as a CPRA
exemption?
Q: What kinds of record does the privileged and otherwise
confidential information exemption apply to?
A: The Act states:
Section 6254. "Except as provided in Section 6254.7, nothing in this chapter shall
be construed to require disclosure of records that are . . . : (k) Records the disclosure
of which is exempted or prohibited pursuant to provisions of state or federal law,
including, but not limited to, provisions of the Evidence Code relating to
privilege."
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Q: What is the significance of the privileged and otherwise
confidential information exemption?
A: This exemption has no particular subject matter of its own, but simply incorporates
any statutes outside the CPRA which restrict access to specified records or information.
It means in effect that any such confidentiality law automatically constitutes an
exemption from disclosure under the Act.
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Q: What are some of the confidentiality rules that the exemption
might refer to?
A: Click here for a list of such rules found
throughout the California statutes, arranged by topic.
Q: How is the privileged/confidential exemption typically used?
A: The most common use of subdivision (k) is simply to introduce one or more of three
major privileges in the Evidence Code -- protecting confidential communications between
attorney and client, official information submitted in confidence, and trade secrets.
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Q: How does the attorney-client privilege operate as a CPRA
exemption?
A: A public agency, as an entity which can sue and be sued, has the need for legal
counsel and the ability to communicate with that counsel in confidence. To a certain
extent that freedom to communicate privately has been restricted by the Legislature, in
that under the Ralph M. Brown Act and the Bagley-Keene Open Meeting Act, a discussion
between a local legislative body or a state body and its legal advisor may take place in a
closed session only on a topic classifiable as "pending litigation." Such bodies
may not, for example, retire into a closed conference to discuss general legal questions
if no litigation is "pending."
But this restriction operates only as to meetings. It does not prevent essentially the
same consultation in written memoranda, and when such writings are used, they have the
full protection of the attorney-client privilege and are thereby exempt from disclosure
under the Public Records Act (Roberts v. City of Palmdale, 5 Cal. 4th 363
(California Supreme Court, 1993)). The privilege applies to virtually any communication
between attorney and client in which the latter (in this case a governmental agency or
official) is seeking or obtaining legal advice with an expectation of confidentiality, and
includes, as stated in Evidence Code Section 952:
"information transmitted between a client and his or her lawyer in the course of
that relationship and in confidence by a means which, so far as the client is aware,
discloses the information to no third persons other than those who are present to further
the interest of the client in the consultation or those to whom disclosure is reasonably
necessary for the transmission of the information or the accomplishment of the purpose for
which the lawyer is consulted, and includes a legal opinion formed and the advice given by
the lawyer in the course of that relationship."
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Q: How can the attorney-client privilege be waived and
unavailable as a CPRA exemption?
A: In the CPRA context, a principal issue concerning the attorney-client privilege will
always be waiver: Has the information been communicated to someone who is extraneous to
the client's legal interests, or possibly even adverse to them? A letter sent by an
agency's attorney to a party with whom the agency is negotiating an agreement, for
example, will thereby waive the privileged character that might otherwise have protected
its contents. After the litigation concluded in a final court action or a settlement, the
letter would be accessible.
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Q: Is fee information -- billings submitted to a public agency
client by outside counsel, the amounts paid by the agency, or both -- protected by the
attorney-client privilege?
A: No. California cases appear to address this issue, but the U.S. Court of Appeals for
the Ninth Circuit has summarized how a federal court in California would address it:
"Not all communications between attorney and client are privileged. Our decisions
have recognized that the identity of the client, the amount of the fee, the identification
of payment by case file name, and the general purpose of the work performed are usually
not protected from disclosure by the attorney-client privilege. See, e.g. Tornay (v.
U.S.), 840 F.2d at 1426; In re Grand Jury Witness (Salas and Waxman), 695 F.2d
359, 361-62 (9th Cir,. 1982); Hodge and Zwieg, 548 F.2d at 1353; United States
v. Cromer, 483 F.2d 99. 101-02 (9th Cir. 1973)."
-- Clarke v. American Commerce National Bank, __ F. 2d ___, Case No. 91-56327
(U.S. Court of Appeals, 9th Cir. 1992).
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Q: How does the official information privilege operate as a CPRA
exemption?
A: Prior to enactment of the CPRA, the privilege for official information received in
confidence was the principal rule relied on by law enforcement agencies in refusing to
disclose the identities of informants or investigative information acquired on a
confidential basis. It still serves that purpose when such information is sought as
evidence in a court proceeding, but for purposes of the Public Records Act it is more
typically cited as a basis for withholding information outside the law enforcement
context. Evidence Code Section 1040 states the privilege thus:
"(a) As used in this section, 'official information' means information acquired in
confidence by a public employee in the course of his or her duty and not open, or
officially disclosed, to the public prior to the time the claim of privilege is made.
" (b) A public entity has a privilege to refuse to disclose official information,
and to prevent another from disclosing official information, if the privilege is claimed
by a person authorized by the public entity to do so and:
"(1) Disclosure is forbidden by an act of the Congress of the United States or a
statute of this state; or
"(2) Disclosure of the information is against the public interest because there is
a necessity for preserving the confidentiality of the information that outweighs the
necessity for disclosure in the interest of justice; but no privilege may be claimed under
this paragraph if any person authorized to do so has consented that the information be
disclosed in the proceeding. In determining whether disclosure of the information is
against the public interest, the interest of the public entity as a party in the outcome
of the proceeding may not be considered."
As can be seen below, use of this privilege as an independent exemption from the CPRA
does not add any factors for consideration that are not already available under other
exemptions.
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Q: When does the official information privilege apply as a CPRA
exemption?
A: For the privilege to apply, two conditions must be met:
Confidential Acquisition. First, the information must have
been truly "acquired in confidence" and not previously shared with the public.
If the supplier of the information did not convey it in confidence or the agency did not
then treat it as confidential, the privilege does not arise.
Disclosure Illegal or against Public Interest. But more is
required: "(A)ssurances of confidentiality are insufficient in themselves to justify
withholding pertinent public information from the public" (San Gabriel Valley
Tribune v. Superior Court, 143 Cal. App. 3d 762 (California Court of Appeal, 2d Dist.
1983)). To complete the privilege, disclosure must either be prohibited by federal or
state law (which would make it exempt under Section 6254 (k) in any event), or
"against the public interest" under a balancing of factors essentially the same
as in Section 6255 (see below). In San Gabriel Valley Tribune, for example, the
court found that the privilege was inapplicable to protect financial information submitted
by a garbage disposal firm to the City of West Covina to support its request for a
city-approved rate increase:
"Disclosure was shown to weigh in favor of the public's interest in view of the
fact that the rate increase amounted to a 15 to 25 percent increase in just two years that
the public -- not the City -- would have to pay . . . Respondent City argues that
disclosure will both invade a private company's privacy interests, as well as having a
chilling effect on obtaining information in similar future transactions. It is said that
such a threat to future dealings constitutes a sufficient reason to withhold disclosure in
the name of the public's interest. This argument, however, misstates what the public's
interest is as serving the privacy interests of a private contractor, rather than in
serving the public's interest in participating in local government."
Inapplicable If Relied on for Decision. The privilege will
not apply to information upon which a government official or body explicitly relies in
making a decision. As stated in San Gabriel Valley Tribune,
"...the City publicly based its (rate increase approval) decision on financial
data supplied to it by the Disposal Company. It cannot now be heard to call for
concealment after it voluntarily injected the data into the decision-making process of
government. This was precisely the type of governmental action that the Brown Act and the
Public Disclosure Act (sic) were designed to keep open to public scrutiny."
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Q: How does the trade secret privilege operate as a CPRA
exemption?
A: Information subject to this privilege has its most general statutory definition in
Civil Code Section 3426.1, subdivision (d), which states:
"'Trade secret' means information, including a formula, pattern, compilation,
program, device, method, technique, or process, that:
(1) Derives independent economic value, actual or potential, from not being generally
known to the public or to other persons who can obtain economic value from its disclosure
or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy."
There appears to be only one case in which a body of information was held to be covered
by this privilege and not disclosable under the CPRA. In California School Employees
Association v. Sunnyvale Elementary School District, 30 Cal. App. 3d 46 (California
Court of Appeal, 1st Dist. 1973), the court found the privilege "broad enough"
to justify nondisclosure of research findings provided to a school district pursuant to a
consulting contract -- although in that case the contract did allow for sharing the
information for official purposes provided it was not published or sold by the recipient.
This case is not very useful, however, in that the basic thrust of the plaintiff's action
was not to obtain information but to show that the consultant's contract -- dealing with
custodial and maintenance services over which the plaintiff claimed union jurisdiction --
was in violation of several provisions of law.
The leading court interpretation of trade secrets protection under the Act is Uribe
v. Howie, 19 Cal. App. 3d 104 (California Court of Appeal, 3th Dist. 1971), in which
the court found no privilege for monthly documentation filed by licensed agricultural pest
control operators, pursuant to state law, with Riverside County as "spray
reports." The reports showed who was spraying what pesticides on what crops in whose
fields, on what dates, and in what quantities and combinations.
The court found the privilege inapplicable for two basic reasons, namely that the
information (including strength and combination data) was often made available by the
county to doctors, insurance adjusters and growers on a "need to know" basis,
and by the pest control operators themselves, in billing statements to their grower
customers. Second, the concentration and mixtures of pesticides did not represent a great
investment in research and development, but more typically an approach developed by normal
trial and error. The court contrasted these relatively simple mixture ratios and
techniques with the scientific formulas for the commercial pesticides which were being
mixed -- the latter of which would be more eligible for trade secret protection, but which
were not at issue.
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