The University of California is refusing to disclose legal bills generated by a San Francisco law firm’s work defending the university against a pending lawsuit — a decision experts say may have left the university in violation of the state Public Records Act.
The university has contracted Crowell & Moring LLP — a multinational firm that often represents Fortune 500 companies in “high stakes litigation,” according to its website — to handle litigation and the disclosure of public records associated with a lawsuit filed against the university.
The suit, filed Nov. 11 by protesters and activists, sues agents of the university on charges stemming from the violence that erupted at Occupy Cal’s Nov. 9 protest. Individual defendants include UC Berkeley Chancellor Robert Birgeneau, UCPD Chief Mitch Celaya and several other administrators and police officers.
The university has refused to release the billing associated with this work — requested by The Daily Californian Feb. 24 — by citing an exemption contained in the act that allows for the refusal of disclosure when documents are associated with pending litigation.
But experts on the act say the university may be overreaching in its application of the exemption and should release at least part of the information sought by the Daily Cal.
“In my view, they don’t have the option to withhold the invoices from the law firm,” said Peter Scheer, executive director of the First Amendment Coalition. “While it may be the case that some information on the invoices could be lawfully redacted because of the information subject to the attorney-client privilege, there is no legal authority that I know of that would allow them to withhold the invoices in their entirety.”
In a March 5 email from the UC Office of the President’s Public Records Office addressing the Daily Cal’s request, university lawyers stated that the bills, in whole or redacted, would not be disclosed.
“Records reflecting fees and costs associated with pending litigation are exempt from disclosure … until the litigation has been finally adjudicated or otherwise settled,” the office said in the email, citing section 6254 (b) of the state Public Records Act. The university, through spokesperson Dianne Klein, reaffirmed this position in a March 16 email and a follow-up phone interview the same day.
But public records specialists say a combination of court precedents indicates the university could be compelled to release the documents if a case were taken to court.
According to Katherine Keating, an attorney at Bryan Cave LLP, a firm that works with the First Amendment Coalition, the exemption cited by the university only pertains to documents “specifically prepared for use in litigation” — a clarification to the Public Records Act set out in a 2000 ruling by a state Court of Appeal.
“Billing records might be said to be a byproduct of litigation but would not seem to be prepared ‘for use in litigation,’” Keating said in a March 14 email. “Accordingly, it is not clear that the pending litigation exemption categorically exempts billing records, as UCOP asserts. It is not clear, for example, how disclosing the amount the agency is paying each month in legal bills could prejudice its interests in the pending litigation.”
To prevent any such prejudice, the university could release the bills but redact information directly referencing aspects of the pending litigation — a possibility supported by a federal court’s ruling on legal fee statements. According to ACLU-Northern California attorney Linda Lye, a 1992 decision from the federal 9th Circuit Court of Appeals held that billing records showing “the identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege” in its opinion.
But the court ruling included the caveat that records revealing “litigation strategy, or the specific nature of the services provided, such as researching particular areas of law,” can be redacted to protect those aspects of the bill from disclosure.
Buttressing these precedents’ application to the release of the university’s legal bills is the public’s heightened interest in obtaining information on how public funds are spent — a notion affirmed in several state court decisions, according to Lye.
Beyond the firm’s work on the pending litigation, it has already released email correspondence between campus administrators — which revealed that Birgeneau did not initially object to reports of baton use at the Nov. 9 protest — and represented UCPD at a campus Police Review Board meeting, according to Lye.