VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-25-03

December 4 , 2003

Mr. Michael Town, Director
Sierra Club-Virginia Chapter
Richmond, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence of October 20, 2003.

Dear Mr. Town:

You have asked a question concerning the scope of the attorney-client privilege and work product exemptions for public records under the Virginia Freedom of Information Act (FOIA).

You indicate that the City of Newport News ("the City") was denied a permit necessary for the completion of the King William Reservoir Project ("the project"). The City filed a Notice of Appeal in Circuit Court in June 2003 challenging the permit denial. The City employed a private law firm to provide legal counsel relating to the permit process and to handle the appeal.

Documents you have provided indicate that on September 2, 2003, the City Manager advised the City Council ("the Council") that legal consultants and staff had recommended that the City conduct a communications strategy for "more effectively informing citizens about the benefits of a new reservoir and why this is preferable to other alternatives." The Manager requested that the Council set aside funds to hire a communications consultant and for expenses to be incurred for an in-house multi-media information effort. The Council approved a resolution appropriating more than $1 million to the reservoir project for continued engineering and legal services. The resolution stated that a portion of those funds were to be used "to make citizens aware of the benefits of a new reservoir and why the reservoir is preferable to other alternatives." A public relations firm ("the PR firm") was retained by the law firm on behalf of the City to facilitate the proposed communications effort approved by the Council.

On September 15, 2003, the Sierra Club made a FOIA request for public records owned by or in possession or control of the City or Newport News Waterworks relating to the retention of a public relations firm to promote the project. Specifically, the Sierra Club sought public records relating to: (1) a request for proposal or similar documents relating to the work to be undertaken by a public relations firm for the project; (2) contracts with any public relations firm retained to promote the project; (3) all records relating to the retention of a public relations firm in 2003; and (4) all records relating to the work of a public relations firm in promoting the project.

The City provided some records and withheld approximately 50 pages of records, citing attorney-client privilege and work product compiled specifically for use in litigation pursuant to subdivisions A 7 and A 8 of § 2.2-3705 of the Code of Virginia. The City stated in its response that the law firm retained the PR firm for the specific purpose of providing support in the ongoing litigation involving the City. As such, communications between the City and the PR firm and/or the law firm involving the litigation support, communications between City officials concerning the work of the PR firm in support of the litigation, and communications concerning the retention of the PR firm by the law firm were being withheld. In addition, the City indicated that it did not develop a request for proposals concerning the public relations work, nor was the city in possession of a contract between the law firm and the PR firm.

You contend that the retention of a public relations firm to promote the reservoir project has nothing to do with the litigation process, and that the City structured its relationship with the PR firm through the law firm to hinder access to public records which are not privileged and should be available under FOIA. You ask if you are entitled to the records you have requested, or if the attorney-client privilege and work product exemptions would allow the City to withhold these records.

The policy of FOIA at subsection B of § 2.2-3700 states that the act ensures the people of the Commonwealth ready access to public records and requires that [t]he provisions of FOIA shall be liberally construed...[a]ny exemption from public access to records or meetings shall be narrowly construed. Subsection A of § 2.2-3704 states that [e]xcept as otherwise provided by law, all public records shall be open to inspection and copying. Subdivision A 7 of § 2.2-3705 allows a public body to withhold [w]ritten advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other records protected by the attorney-client privilege. Subdivision A 8 of § 2.2-3705 allows a public body to withhold [l]egal memoranda and other work product compiled specifically for use in litigation.

While FOIA requires that exemptions be construed narrowly, to address the issues at hand one must examine the common law attorney-client privilege and the work product doctrine to understand the scope of the cited exemptions. Both attorney-client privilege and work product exist outside the realm of FOIA and are relevant to a lawyer's representation of public or private clients. The inclusion of the exemptions in FOIA recognize these long-standing legal principals. The FOIA exemptions should be interpreted to parallel these principals, but not go beyond their scope. While sometimes related, attorney-client privilege and work product do not necessarily protect the same documents -- some documents that are not subject to attorney-client privilege may ultimately be protected as work product. Thus, each doctrine will be considered in turn.¹

The attorney-client privilege is one of the oldest legal privileges, dating back to the sixteenth century. The policy behind the privilege is to assure that clients can freely communicate with legal counsel. While several states have codified the privilege, Virginia still relies on the Common Law. Most courts have acknowledged that the benefit of the privilege is offset by a societal cost in that the privilege hampers the search for truth by concealing undeniably relevant communications. Because of the tension between the social benefit of unhampered communication between clients and counsel and the impairment to the search for the truth, most courts construe this privilege very narrowly.² This tension is heightened when the communications at issue are between a government client and counsel, because the "governmental privilege stands squarely in conflict with the strong public interest in open and honest government."³

Generally, six elements must be present in order to invoke the privilege: communications from a client; to the client's lawyer or lawyer's agent; relating to the lawyer's rendering of legal advice; made with the expectation of confidentiality; and not in furtherance of a future crime or tort; provided that the privilege has not been waived. If each of these elements is present, then the privilege is absolute and cannot be overcome with an argument that the information is critical in a particular case, or that disclosure of the information plays an important public purpose. Of these six elements, the two most relevant factors for this analysis are determining whether the PR firm was acting as the law firm's agent, and whether the communications can be considered legal advice.

In addition to protecting communications between a client and lawyer, the attorney-client privilege can extend, in limited circumstances, to communications with an agent of the client or the lawyer. Information transmitted between a lawyer and the client's agent will be protected only when the agent is necessary to assist in the transmission of information between the client and the attorney. An example of this kind of protection would be a translator hired by the client and brought to a consultation with a lawyer, if the client and the lawyer do not speak the same language.⁴ Communication between a client and the lawyer's agent may be protected if the lawyer needs the agent's assistance in rendering legal advice to the client. Courts will examine whether the agent gave substantive information to the lawyer that the lawyer needed to make legal recommendations. It is not enough that communications of an agent are generally related to the subject of the legal advice; instead, the communications must be "inextricably linked to the giving of legal advice"⁵ and such assistance must be "indispensable to the attorney's effective representation of the client."⁶ The agent must be directly assisting the lawyer, and courts will not protect substantive advice from the agent to the client that is simply communicated through the lawyer. In a case addressing whether consultation with an accountant by a lawyer rendering tax advice was protected by attorney-client privilege, a court found that the expertise of an accountant might aid a lawyer in better understanding the client's issues. However, the court held that "if what is sought is not legal advice but only accounting service, or if the advice sought [from the client] is the accountant's rather than the lawyer's, no privilege exists."⁷ In the instant case, the law firm sought the PR firm's services to provide public relations advice to the client and not to assist the law firm in providing legal advice. Therefore, the PR firm would not be considered an agent, and the attorney-client privilege would not attach to communications with the PR firm.

A closely related factor in determining whether attorney-client privilege applies is whether the communication relates to legal advice. The fact that one communicates with a lawyer does not alone invoke the privilege. The attorney-client privilege only protects explicit and implicit requests from a client to a lawyer for legal advice and factual information from a client that the lawyer needs to form a legal opinion. As such, attorney-client privilege does not automatically cover all documents in a lawyer's file relating to a client. Nonprivileged documents do not become privileged merely because they are sent to a lawyer. Courts have found that lawyers can play roles other than legal advisors and privilege does not attach in those instances, such as when the lawyer is acting as a public relations specialist providing public relations advice.⁸

In applying the attorney-client privilege narrowly to the facts you have presented, as is required by the policies of both FOIA and the privilege, the exemption at subdivision A 7 of § 2.2-3705 is not applicable to documents related to the services of the PR firm, even if these documents were shared with or generated by the law firm. It does not appear that communications to and from the PR firm were necessary to aid the City in communicating with the law firm, nor does it appear that the services of the PR firm were necessary to assist the law firm in providing legal advice. Despite the City's assertion in response to Sierra Club's FOIA request that the PR firm was retained specifically for litigation support, the City Manager's memo to the Council requesting additional funding and the Council's resolution appropriating additional funds both indicate that the City hired the PR firm to assist it in a public relations effort. For the privilege to be applicable, the PR firm must have assisted the law firm in providing legal advice. In other words, passing information from a third party to a client through a lawyer is not protected; the lawyer must essentially "add value" to the information provided, in such a way that enhances the lawyer's legal advice. It does not appear that the PR firm's advice concerning a communications strategy to the public is inextricably linked to the giving of legal advice or indispensable to the law firm's effective representation of the City. Because the PR firm is not an agent, privilege would not attach to any records shared with the PR firm by either the City or the law firm, and such records could not be withheld from public disclosure.

It also appears that the law firm's communications with the City concerning the PR firm does not relate to the rendering of legal advice. The law firm appears to be playing a dual role in its representation of the City. Communications from the law firm relating to the application for the reservoir permit and preparation of the appeal constitute legal advice. However, communications of the law firm with either the City, the PR firm, or both, relating to the publicity of the reservoir project relate to public relations advice. Public support behind the City's effort to secure the permit may ultimately benefit the appeal, but the nexus between garnering public support and preparing a legal appeal is tenuous. The City Manager's memo indicates that the law firm had already formed the opinion that obtaining the permit was in the City's best interest, and filed notice of the appeal in June. Its recommendation in September that the City conduct a public relations campaign is aimed at how to best spread that message to the public, and is not related to the law firm offering legal advice as to whether or not to file the appeal or how to litigate the appeal.

The second issue is whether the work product doctrine might apply to any of the written communications between the City, the PR firm, and the law firm. While often associated, attorney-client privilege and the work product doctrine are dramatically different. The work product doctrine relates only to materials prepared in anticipation of or response to litigation. In addition to this temporal requirement, the documents in question must also be created because of the litigation. The doctrine is based on a lawyer's right to enjoy privacy in the course of preparation of a suit, and applies to documents compiled by third parties relating to the suit, whether or not a lawyer is involved. Government clients, like private clients, can create protected work product.⁹ In Virginia, the work product doctrine is codified at Virginia Supreme Court Rule 4:1(b)(3).

In applying this doctrine to the facts presented, some documents prepared by the City, the law firm, or the PR firm might properly be considered work product, so long as they were compiled specifically for use in the appeal of the permit decision and were compiled because of the litigation. Documents prepared independently of the appeal would not become work product simply because they are incorporated into the litigation process. Furthermore, the work product doctrine would not apply just because a given document relates to the reservoir, and the litigation at hand also relates to the reservoir. A document relating to preparation and implementation of a public relations campaign would not be prepared "specifically for use in litigation," and could not be withheld as work product.

In denying access to the records sought by the Sierra Club, the City stated that the PR firm was retained by the law firm to provide support in the ongoing litigation. However, as noted above, records of both the City Manager and the Council indicate that the purpose of hiring the PR firm was to assist in a communications strategy to educate the public. The PR firm could have been hired directly by the City and communicated directly with the City. Having the law firm hire the PR firm on the City's behalf and funneling these same communications through the law firm does not change the nature or purpose of the relationship. The public relations campaign and the litigation may have the same common goal of establishing a reservoir. Obtaining the requisite legal permits to proceed is one facet of the reservoir project. Efforts to build public support for the reservoir project are not legal in nature, and cannot be shielded from disclosure. A public entity cannot use a lawyer as an intermediary to withhold otherwise public documents from the requirements of FOIA.

In conclusion, none of the records in question appear to be properly subject to the attorney-client privilege pursuant to subdivision A 7 of § 2.2-3705 because the PR firm is not acting as an agent of the City or the law firm for purposes of rendering legal advice. Likewise, the work of the PR firm would not be work product exempt pursuant to subdivision A 8 of § 2.2-3705 to the extent that it relates to developing and implementing a public relations campaign. However, if the PR firm also created documents for the law firm specifically for use in the appeal, these documents might be properly exempt from disclosure as work product.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹General background on both attorney-client privilege and the work product doctrine is drawn heavily from A Practitioner's Guide to the Attorney-Client Privilege & Work Product Doctrine, Thomas E. Spahn, 2001 (The Virginia Law Foundation).
²See id., § 1.203.
³Reed v. Baxter, 134 F. 3d 351, 356 (6th Cir.), cert. denied 525 U.S. 820 (1998). See also In re Grand Jury Subpoena Duces Tecum (Office of the President v. Office of Independent Counsel), 112 F. 3d 910 (8th Cir. 1997), Restatement (Third) of the Law Governing Lawyers § 74.
⁴Miller v. Haulmark Transport Sys., 104 F.R.D. 442, 444-45 (E.D. Pa. 1984).
⁵Olson v. Accessory Controls, 254 Conn. 145, 158, 160, 757 A. 2d 14, 21, 23 (Conn. 2000).
⁶Comm. of Virginia v. Edwards, 235 Va. 499, 509, 370 S.E. 2d 296, 301 (Va. 1988).
⁷United States v. Kovel, 296 F. 2d 918, 922 (2d Cir. 1961).
⁸Sackman v. Liggett Group, Inc., 920 F. Supp. 357 (E.D.N.Y. 1996).
⁹See Spahn, supra n.1, at § 8.302.