Unknown to the average tax-paying citizen, many school districts rack up large legal bills battling parents who are trying to obtain special education services for their children. One reason tax payers may be unaware is that districts are very secretive about disclosing the amount of such costs. One tactic they have used repeatedly to avoid revealing the price tag for their actions is to claim that the information is protected for a variety of legal reasons. Requests for information from state public agencies are covered under the California Public Records Act, (CPRA).
This law was enacted in 1968 and modeled after the federal Freedom of Information Act (FOIA). The purpose of the CPRA is to increase "freedom of information by giving members of the public access to information in the possession of public agencies." Like the FOIA, this law creates specific exemptions which public agencies can cite in order to avoid revealing information considered sensitive. When parents or attorneys request that districts and or Special Education Local Plan Agencies (SELPAs) turn over litigation expense information, district have blocked such requests using three specific exemptions from CPRA: 1) attorney-client privilege; 2) attorney work product doctrine; and 3) the pending litigation exemption.
Recently the California Supreme Court ruled that these exemptions do not apply to obtaining records related to attorney fees charged by litigation counsel for public entities such as school districts. In County of Los Angeles v. Anderson-Barker, our state's Supreme Court had a chance to review a lower court decision which held exactly that. In its February 20 ruling, the court confirmed a lower court's opinion on the matter and also certified the decision for publication, meaning that the case is now considered the law in our state.
In the case, Cynthia Anderson-Barker, an attorney for a law-firm engaged in a civil rights action that is currently pending in the Los Angeles County Superior Court, Venegas v. County of Los Angeles, filed in court requesting the court force the County of Los Angeles to disclose records relating to the Venegas case. The county had failed to respond to a formal CPRA request submitted to it by her. In her request, Anderson-Barker sought (1) all invoices or other requests for payment submitted to the County by any law firm representing it in the Venegas action, (2) each such law firm's time records , and (3) canceled checks and other writings reflecting payment by the County to such law firms.
The county argued that it should not have to produce the records for the three reasons cited above: 1) attorney-client privilege; 2) attorney work product doctrine; and 3) the pending litigation exemption. The lower court ruled that the attorney-client privilege did not apply, but that certain parts did contain attorney work product. In order to respect the work product, the court ordered that the information be redacted "to show [only] the information that is not work product -- the hours worked, the identity of the person person performing the work, and the amount charged. With regard to the pending litigation exception, the trial court ruled that the exemption applied only to records specifically prepared for use in litigation. In that these documents were prepared in "connection with" the Venegas case, but not for use in that case, the exemption did not apply.
The case made its way to the California State Court of Appeal, where the court again addressed whether the pending litigation applied to the billing records of the case. In analyzing the case, the court first noted that
Because the statute furthers the people's right to access, it must be construed broadly. Exemptions under the CPRA are to be narrowly construed, and the government agency opposing disclosure bears the burden of proving that one or more apply in a particular case.
The court went on to note that the pending litigation exemption has a long history of California appellate decision definition. Under these cases, "a document is protected from disclosure under the pending litigation exemption only if the document was specifically prepared for use in litigation." The court further explained that based on past case precedent, where a document has a dual purpose, one for use in litigation and one one for non-litigation purposes, a court should apply the "dominant purpose" test. Under this test, "a document or report prepared for a dual purpose is privileged, or not privileged, depending on the dominant purpose behind its preparation."
Under the facts of this case, the court reasoned that at best this was such a dual purpose situation, and, here, the lower court in applying the test reasonably determined that preparation of the documents was not for use in litigation but "as part of normal record keeping and to facilitate the payment of attorney fees on a regular basis." The court specifically noted that "this is true even though the requested records relate to pending litigation and, indeed, would not have existed but for the pending litigation."
As noted by Rex Dalton on Voice of OC, this lawsuit has implications for the special education community here in Orange County particularly and across California as a whole. While spending hundreds of thousands of dollars in litigation to prevent families from obtaining services for their children, school districts have shielded themselves from revealing these costs by applying the law and logic for which the County of Los Angeles here sought approval--and failed to gain. No longer will the Orange County Department of Education, local school districts, or other state agencies be able to hide behind the pending litigation exemption to block taxpayers and other concerned citizens from peering behind the wall of secrecy and obtaining information about how school district funds are being used to fund expensive litigation.
Tip of the hat to Rex Dalton at Voice of OC for bringing this story to my attention. I highly suggest reading Mr. Dalton's investigative journalism regarding special education legal practices here in Orange County.
Gregory Branch, Esq. is a special education attorney here in Orange County that represents families in obtaining special education services for their children. His website is www.ocspecialedattorney.com.
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