Public Agencies Not Required to Disclose Attorney Billing Invoices Under CPRA; Attorney-Client Privilege Applies to Entire Invoice

The California Court of Appeal recently held that billing invoices sent by an attorney to a public agency client are protected by the attorney-client privilege and are not required to be disclosed by the  public agency, even in redacted form, under the California Public Records Act (“CPRA,” Government Code §§ 6250 et seq.).  (County of Los Angeles Board of Supervisors v. Superior Court, No. B257230 (Cal. Ct. App. Apr. 13, 2015).) 

Although previous court decisions had touched on the question of whether billing invoices were protected by the attorney-client privilege, this was the first published appellate decision to squarely answer this question.  The court concluded that, when a public agency refuses to disclose records based upon the attorney-client privilege, the inquiry does not turn on the content of the communication, but rather on whether the communication was made in the course of an attorney-client relationship between the parties to the communication and whether the communication was made in confidence.

Following investigations concerning the use of excessive force within the County of Los Angeles jail system, the ACLU of Southern California requested invoices concerning the County’s bills from outside law firms in connection with lawsuits regarding the alleged excessive force.  The CPRA exempts from production as a public record those documents whose disclosure is exempted or prohibited by other laws, including the Evidence Code provisions relating to privilege.  When the County refused to provide certain billing invoices by arguing that the invoices were privileged attorney-client communications, the ACLU sought a court order compelling disclosure. 

Interpreting the text and legislative history of relevant Evidence Code provisions, the appellate court concluded that the proper inquiry for determining whether a communication is subject to attorney-client privilege is whether the communication is (1) between a client and his or her attorney in the course of that relationship and (2) made in confidence.  Here, it was significant that the County demonstrated the billing invoices were made in the course of the attorney-client relationship and were transmitted and maintained confidentially.  Accordingly, the County was not required to disclose the billing invoices under the CPRA, even in redacted form.

The County of Los Angeles case underscores the importance of closely reviewing documents for purposes of CPRA disclosure and recognizing when documents may be subject to the attorney-client privilege.  It also, for the first time under California law, provides clear guidance as to the confidentiality of  private law firm billing invoices to a public  agency.