FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
4 , 2003
Sierra Club-Virginia Chapter
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.
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).
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.
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.
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.
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.
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.
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.
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
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
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.
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
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.
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
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.
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.
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).
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.
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.
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.
you for contacting this office. I hope that I have been of
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
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.