Privileged? Maybe Not: A Glimpse at Public Access Laws and Its Effect on Government Attorneys’ Records

February 8, 2019October 10, 2019 docketcallnewsletter

Attorney work product and attorney-client privilege are long-standing staples in the legal profession. They are cornerstones in American legal practice. However, for government lawyers across the country, freedom of information laws describe who can see their records and who can create an added layer of scrutiny into what is and is not considered privileged. Most jurisdictions have a public access law that provides rights to access government agency records. Freedom of information laws provide access to government records to the public, usually with a small set of exemptions that allow agencies to redact or withhold records in part or in full. Most jurisdictions recognize attorney work product and attorney-client privilege doctrines, but many are written to provide maximum access to requesters. Virginia is no exception.

The Virginia Freedom of Information Act (VFOIA) is open to the citizens of Virginia and provides access to government records, with limited exemptions. The VFOIA allows records to be withheld based on the attorney work product doctrine and attorney-client privilege but requires agencies to narrowly construe any redactions or withholding of records to Virginia citizens. The VFOIA notes that “the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.”

On the other hand, records that show how and what the government spends money on are generally not exempt and require disclosure. It is commonly accepted that citizens have a right to know what their government is up to and how their tax dollars are spent. It is also common for many lawyers to reveal compensation to expert witnesses. Most people agree with this concept, but a lawyer with an open case is more hesitant about the release of any related records, especially while the matter is still pending.

The concern for releasing records for pending matters is exactly where the City of Virginia Beach found themselves with a recent VFOIA request. In December 2018, the Supreme Court of Virginia ruled that the City of Virginia Beach was overly broad in asserting attorney work product and attorney client privilege exemptions under the VFOIA in Bergano v. City of Virginia Beach. The City is currently involved in federal litigation with the requester, Allan Bergano. Bergano submitted a VFOIA request seeking records that would disclose legal fees and expert witness payments made by the City for the pending federal litigation. The City produced several records that were heavily redacted, but revealed basic information including the amount spent, attorneys’ names, and dates. The City claimed exemptions under the attorney work product and attorney-client exemptions under the VFOIA. Unhappy with the records received, the requester took the VFOIA claim to the Circuit Court of the City of Virginia Beach, and the Circuit Court sided with the government after viewing the unredacted versions of the records through an in camera inspection. However, the Supreme Court of Virginia reversed and remanded the Circuit court’s ruling after de novo review of the records in question. It is unclear as to how many of the City’s redactions the Supreme Court deemed to be overly broad, but the court noted a few specific entries that they believed did not fit into the scope of protected material under VFOIA.

As mentioned, invoices are commonly requested and released items under the VFOIA as a public right. However, it is not everyday that the requester is seeking records regarding a matter that is ongoing and where the requester is personally involved. Given these two unique factors, the City of Virginia Beach decided to err on the side of protecting more information. Many attorneys would likely follow the same logic. Unlike the federal FOIA, the VFOIA does not have an exemption to protect records for ongoing or pending matters and requires agencies to segregate attorney work product documents. This can be a major challenge for Virginia government attorneys because it requires agencies to precisely draw the line on the privileged portions of records. This does not mean that there won’t be records that can be withheld in their entirety, but emails and invoices, for example, are two categories of records that are vulnerable to strict scrutiny by requesters and the courts regarding the release and segregation requirements.

The Supreme Court decision is not a major loss for the government, as the decision fits squarely into established Virginal law, but may have other implications, including awarding attorney’s fees to requesters. Lawyers may want to consider what types of information should be included on invoices and billing statements. This is also a reminder that government records are generally available for public inspection, and government attorneys should evaluate their agency’s records management policies. Courts generally review FOIA claims de novo, so an agency can review and correct any mistakes missed during the initial VFOIA response. VFOIA allows for attorney’s fees when a denial of access is in violation of the VFOIA and a party “substantially prevails on the merits of the case.” The code gives room for exception, but attorney’s fees in litigation can have severe impacts on agency budgets. The case shows that the courts are looking at records with higher scrutiny to ensure maximum disclosure to Virginia Citizens under the VFOIA. The VFOIA is not going away, so agency attorneys and FOIA officers should make every effort to complete a thorough evaluation of requested records during the administrative stage of VFOIA requests.

About the Author

Natasha Hudgins is a 2014 graduate of the University of the District of Columbia David A. Clarke School of Law and currently an Attorney Advisor for the U.S. Department of Justice, Executive Office for U.S. Attorneys.