Case Name:??? KNTV Television LLC v. Oak Grove School District, et al.????? ?????????????
Case No.:??????? 2016-CV-289924
Factual and Procedural Background
This case involves requests made under the California Public Records Act (?CPRA?) for production of documents.? (See Petition at ?? 1-2.)? Petitioner KNTV Television LLC (?KNTV?) is an NBCUniversal Media, LLC owned and operated television station that has provided continuous local news coverage in the Bay Area for sixty years.? (Id. at ? 5.)? Respondent Oak Grove School District (the ?District?) is a municipal entity as defined by the CPRA, Government Code ? 6252, with responsibility for ensuring that public documents are made available for inspection and copying in compliance with the CPRA.? (Id. at ? 6.)
On May 27, 2015, KNTV submitted a CPRA request to the District for specific and identifiable documents and records concerning former elementary school principal Larry Harris (?Harris?).? (See Petition at ? 9.)? KNTV learned from multiple sources that Harris had been the subject of a number of complaints alleging sexual harassment and that, in connection with the most recent complaint, the District would be taking the appropriate action.? (Id. at ? 10.)? Thus, KNTV requested that all records not exempt based on the attorney-client privilege be disclosed.? (Id. at ? 13.)? When the District refused to produce any documents, KNTV filed the instant petition for writ of mandate directing the District to make all non-privileged documents available for inspection.
Following the filing of the petition, the parties entered into a settlement agreement.? (See Declaration of Enoch H. Liang at Exhibit 9.)? Under the settlement agreement, the District was required to produce any substantial complaints made against Harris for sexual harassment.? (Ibid.)? The District produced several complaints made against Harris along with some investigation reports.? (Id. at Exhibit 1.)? However, the District refused to produce documents regarding a sexual harassment complaint and investigation raised during the 2014-2015 school year against Harris on the ground that the report was protected by the attorney-client privilege.? (Id. at Exhibit 10.)? The parties met and conferred regarding production of the 2014-2015 school investigation report but were unable to resolve the dispute.
Currently before the Court is KNTV?s motion to compel production of the of the 2014-2015 school investigation report.? The District filed written opposition.? KNTV also seeks an award of attorney?s fees in conjunction with the motion.
Motion to Compel Production of School Investigation Report?
KNTV moves to compel production of the 2014-2015 school investigation report because it is not protected by the attorney-client privilege.
CPRA??
?The California Legislature in 1968, recognizing that ?access to information concerning the conduct of the people?s business is a fundamental and necessary right of every person in this state? (Gov. Code, ? 6250), enacted the California Public Records Act, which grants access to public records held by state and local agencies (Gov. Code, ? 6253, subd. (a).)?? (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 66-67.)? ?As the result of an initiative adopted by the voters in 2004, this principle is now enshrined in the state Constitution: ?The people have the right of access to information concerning the conduct of the people?s business, and therefore, ? the writings of public officials and agencies shall be open to public scrutiny.?? (Cal. Const., art. I, ? 3, subd. (b)(1).)?? (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal.4th 319, 329.)
The CPRA?s purpose is to increase freedom of information by providing public access to information in the possession of public agencies.? (Filarsky v. Sup. Ct. (2002) 28 Cal.4th 419, 425; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 370.)? To implement this policy, Government Code section 6253, subdivision (a) provides all persons with the right to inspect any public record maintained by state or local agencies, subject to various enumerated exemptions.? (Long Beach Police Officers Assn. v. City of Long Beach, supra, 59 Cal.4th at p. 67.)? A ?public record? is defined as a ?writing containing information relating to the conduct of the public?s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.?? (Gov. Code, ? 6252, subd. (d).)
The CPRA embodies a strong policy in favor of disclosure.? (Bakersfield City School Dist. v. Sup. Ct. (2004) 118 Cal.App.4th 1041, 1045.)? Because the CPRA furthers the people?s right of access, it must be construed broadly.? (County of Los Angeles v. Sup. Ct. (2012) 211 Cal.App.4th 57, 63.)
The people?s right of access is not absolute, however.? (Humane Society of U.S. v. Sup. Ct. (2013) 214 Cal.App.4th 1233, 1254.)? ?The CPRA provides for specific exemptions [citation] and a ?catch-all exemption? [citation].?? (Ibid.)? ?The exemptions are to be construed narrowly.?? (Ibid.)
Analysis
The parties dispute whether the 2014-2015 school investigation report is protected from disclosure by the attorney-client privilege.
?The act exempts certain public records from disclosure [citations], including ?[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.?? [Citation.]? By its reference to the privileges contained in the Evidence Code, therefore, the Public Records Act has made the attorney-client privilege applicable to public records.?? (Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 370.)
?The [attorney-client] privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client.? [Citation.]? Clearly, the fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters.? [Citation.]? In other words, the public policy fostered by the privilege seeks to insure ?the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.?? [Citation.]?? (Mitchell v. Sup. Ct. (1984) 37 Cal.3d 591, 599.)
?Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship.?? (Mitchell v. Sup. Ct., supra, 37 Cal.3d at p. 599.)? ?The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.?? (City & County of S.F. v. Sup. Ct. (1951) 37 Cal.2d 227, 235.)
?In assessing whether a communication is privileged, the initial focus of the inquiry is on the ?dominant purpose of the relationship? between attorney and client and not on the purpose served by the individual communication.? [Citation.]? ?If a court determines that communications were made during the course of an attorney-client relationship, the communications, including any reports of factual material, would be privileged, even though the factual material might be discoverable by other means.?? [Citation.]?? (City of Petaluma v. Sup. Ct. (2016) 204 Cal.Rptr.3d 196, 203-204.)
?The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.? [Citations.]? Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.? [Citations.]?? (Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal.4th 725, 733.)
In support of the attorney-client privilege, the District submits the declaration of Andrew Garcia (?Garcia?), the District Assistant Superintendent.? On behalf of the District, Garcia engaged the law firm of Van Dermyden Maddux (?Van Dermyden?), an outside attorney who specializes in personnel and workplace investigations, to perform an investigation into the 2014 complaint against Harris.? (See Garcia Declaration at ? 4.)? A copy of the Van Dermyden engagement letter is attached to the Garcia Declaration.? (Id. at Exhibit A.)? The engagement letter includes a portion titled ?Scope of Services? which provides as follows:
?Client hires the Firm to perform legal services for Client in the form of Impartial Investigation regarding claims that an administrator made inappropriate comments to an employee.? The Firm will perform these duties as an attorney at law.? The Firm?s communications, work product, and the final report will be protected from disclosure pursuant to the attorney-client privilege, unless waived by the Client.?
(Ibid.)
In support of its position, the District relies on City of Petaluma where the appellate court held that a law firm?s pre-litigation factual investigation was protected under the attorney-client privilege.? In doing so, the court stated:
?Here, Oppenheimer was retained to provide a legal service because she was hired to act as an attorney in bringing her legal skills to bear to assist the City in developing a response to Waters?s EEOC complaint and the anticipated lawsuit.? The retention agreement not only expressly specified that it created an attorney-client relationship, but is also provided that Oppenheimer would use her expertise in employment law to arrive at findings based upon her ?professional evaluation of the evidence.?? She was not merely a fact finder whose sole task was to gather information and transmit it to the City, as Waters suggests.? Instead, she was expected to use her legal expertise to identify the pertinent facts, synthesize the evidence, and come to a conclusion as to what actually happened.? The dominant purpose of Oppenheimer?s representation was to provide professional legal services to the City Attorney so that he, in turn, could advise the City on the appropriate course of action.?
(City of Petaluma v. Sup. Ct., supra, 204 Cal.Rptr.3d at p. 205.)
Similarly, the District contends that it retained Van Dermyden, outside counsel, to provide legal services in its professional capacity as experienced employment lawyers with expertise in investigating discrimination and harassment claims.? The engagement letter specifically stated that Dermyden was hired to perform legal services, that it would perform the investigation as an attorney at law, and Van Dermyden?s communications, work product, and the final report would be protected from disclosure pursuant to the attorney-client privilege, unless waived by the District.? (See Garcia Declaration at Exhibit A.)? Thus, the District claims that its dominant purpose in retaining Van Dermyden was to secure its legal expertise to investigate allegations of sexual harassment in order to assist the District in determining what employment actions need to be taken.
By contrast, KNTV argues that the District?s purpose in retaining Van Dermyden was to determine facts, not seek legal advice.? In support, KNTV also relies on the engagement letter in a portion titled ?Limitations on Legal Services? which provides in part:
?The scope of this representation is limited.? The Firm will not render a legal determination whether there were violations of any law or statute.? The Firm will not act as an advocate or provide advice to Client with respect to what employment actions, if any, should be taken as a result of the findings.? The Firm will not represent Client in any legal action or proceeding.? It is expressly agreed that Client will look to its regular legal counsel for such services, as well as for advice with respect to issues which may arise relating to the investigation.?
(See Garcia Declaration at Exhibit A.)
However, as the opposition points out, ?the rendering of legal advice is not required for the [attorney-client] privilege to apply.? (City of Petaluma v. Sup. Ct., supra, 204 Cal.Rptr.3d at p. 205.)? In fact, City of Petaluma demonstrates that a law firm?s fact finding investigation may constitute legal services to a client triggering protection under the attorney-client privilege.? Similarly, the appellate court in Wellpoint Health Networks, Inc. v. Sup. Ct. (1997) 59 Cal.App.4th 110 concluded that the employer had established ?facts necessary to support a prima facie claim of privilege by virtue of the fact that it was undisputed the attorney was hired by the employer ?to conduct an investigation of the charges of discrimination.?? (Id. at p. 123.)? Wellpoint explicitly found that the employee failed to meet his burden to oppose the claim of privilege ?by simply asserting?that [the attorney] was engaged in a fact-finding mission.?? (Id. at p. 124.) KNTV makes that same argument here and thus the Court finds that KNTV fails to meet its burden in opposing the District?s claim of the attorney-privilege.
To the extent that the attorney-client privilege applies, KNTV makes an alternative request to redact portions of the document subject to the privilege and produce the report with the non-privileged factual findings.? If not, KNTV requests an in camera review of the investigation report to see if the attorney-client privilege applies.? While the District objects to an in camera review of the report, it does not appear to explain why redaction of the privileged portions is not a suitable alternative.? Indeed, such an option would seem to be in line with the CPRA?s strong policy in favor of disclosure.? (Bakersfield City School Dist. v. Sup. Ct., supra, 118 Cal.App.4th at p. 1045.)
Therefore, the motion to compel production of the 2014-2015 school investigation report is GRANTED IN PART.? The District shall redact any portions of the report that are subject to the attorney-client privilege.? The District shall produce a redacted copy of the 2014-2015 school investigation report to KNTV within 20 calendar days of this Order.
Request for Attorney?s Fees
KNTV seeks $4,550 in attorney?s fees in conjunction the motion.? However, KNTV did not prevail on the merits of its motion in opposing application of the attorney-client privilege.? Therefore, the request for attorney?s fees is DENIED.