Politicians and government officials love to talk about transparency, open government and the free flow of information.
Too often, though, that talk ends the moment a journalist or another citizen files a public records request to obtain information. Officials lawyer up and then claim attorney-client privilege to deny the request which, in turn, denies the public the right to information on matters it ultimately finances as taxpayers. Or officials find other reasons to withhold information.
It’s a form of legal dodgeball used mostly in cases involving personnel investigations, which generally should be public information once they are completed, whether they involve the city manager or a lower-level employee.
The city of Modesto did this twice recently, first claiming attorney-client privilege in denying a request filed under the California Public Records Act by The Bee’s Kevin Valine. He wanted to review the complaints and investigations involving a supervisor and a manager who left their jobs in 2016 after reaching settlements with the city. One of the settlements could pay the manager as much as $240,000.
So while the city released the settlement agreements it withheld the information that led to them.
And here’s another wrinkle: The city is investigating several wastewater employees. The Bee wants to know how much the city expects to pay an investigator charging $150 an hour to look into the allegations. A city official declined to provide an estimate. So the newspaper filed another public records request, this time for the contract between the city and the investigator.
The city responded by saying “it is not a record that is ‘prepared, owned, used, or retained’ by the City.” The contract is between the investigator and Meyers Nave, the firm the city employs as its legal counsel.
A blurred line? The law firm does the city’s business, as in the public’s business. But when a sensitive case arises, they get a private law firm that insulates the city from having to provide the information that otherwise would be public. The city said it will, should The Bee file another public records request, be happy to tell how much it has reimbursed Meyers Nave “related to this contract.”
And, of course, it is all legal. A pair of McGeorge School of Law professors said agencies often use outside firms to handle cases that could go to court, and they are within their rights to do so.
Withholding the details of an investigation can save the taxpayers money by virtue of avoiding trial costs, said Mary-Beth Moylan, a McGeorge professor whose specialties include dispute resolution.
“They have a responsibility to be proactive,” she said. “At the end of the day, it can cost less money.”
It just can’t be for the sole purpose of keeping the public in the dark.
Law professor J. Clark Kelso said it is difficult to prove a lawyer is brought in for the sole purpose of shielding the information from the public. In many cases, they use outside law firms because the allegations or circumstances might be beyond staff attorneys’ scope of expertise or in which the city could become the defendant in a court case.
“Studies or reports (relative to the case) are subject to attorney-client privilege,” Kelso said. “It’s a pretty well-recognized exception (to public disclosure law).”
And it’s often used.