By Tim Redmond
There’s a legal case making its way through the court system that could invalidate a critical part of the city’s landmark Sunshine Ordinance.
The case, St. Croix v Superior Court, stems from a lawsuit sunshine activist Allen Grossman filed seeking copies of the communications the Ethics Commission had with the City Attorney’s Office over proposed changes to how the commission handles sunshine complaints.
At issue is one of the trickier points of law: Does the long-sacred right of attorney-client privilege always trump the ability of the voters in a city to mandate the release of documents?
Pretty much everyone agrees that there are times when the lawyer for a public agency should be able to communicate with his or her clients in private. If the city’s getting sued – or considering legislation that could get it sued – it’s not in the public interest for a potential plaintiff to know what the city’s legal strategy is.
But the Sunshine Ordinance, one of the toughest local open-government laws in the country, makes a specific exception for communications related to the ordinance itself – that is, if a city officials asks whether certain records have to be released, the request and its response must, by law, be released to the public. (more after the jump)
That was a key area that reformers were targeting when the law went on the ballot in 1999: The city attorney at the time, Louise Renne, had often advised city officials not to release public records, and the officials would then simply say they were following their lawyer’s advice. It was impossible to challenge that advice, since the records were always kept secret.
So Prop. G, the ballot measure that was overwhelmingly approved, included language mandating more openness – and for most of the past 15 years, city agencies have followed the rules. In fact, the city attorney’s office regularly reminds clients that their requests for information on the Sunshine Ordinance would be subject to disclosure.
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But in this case, John St. Croix, the Ethics Commission director, refused to give Grossman the documents. Grossman went to court, a judge said the records should be released – and the city, through City Attorney Dennis Herrera, is appealing.
If the Court of Appeal issues a published ruling overturning that provision of the sunshine law, it would limit any attempts, in any California city, to force open similar documents. It would also be the first time a court had struck down the right of the San Francisco voters to enact open-government laws that are stricter than was the state requires.
Part of the Herrera’s argument is that the Sunshine Ordinance carves out an exception to the well-established principle of attorney-client secrecy that doesn’t exist anywhere else. “This makes the city attorney of San Francisco the only lawyer in the state of California who has to abide by a restriction that no other lawyer faces,” said Gabriel Zitrin, a spokesperson for Herrera.
Herrera is also arguing that the City Charter, which establishes the relationship between his office and city departments, is more legally potent than the voter-approved ordinance.
If that’s true, then other parts of the sunshine law could be at risk, too.
“It would put into stark question what else isn’t enforceable,” sunshine advocate Kimo Crossman told me.
Zitrin acknowledged that the city has survived under the law for 15 years without any damaging consequences. “This is probably the first time it’s come up,” he said.
But Michael Ng, an attorney with Kerr and Wagstaffe who represents Grossman, said there are a lot of cases where the courts have recognized limits on attorney-client privilege. Lawyers for public agencies are typically required to give verbal advice to public bodies during public meetings, he said.
The courts have never addressed this particular, though: “There is no reported case on this issue,” Ng said.
The appeal on behalf of St. Croix puts Herrera in a situation that he has largely avoided over the years: He’s seeking a ruling that will directly undermine the existing open-government law that he did not oppose in 1999 and has never publicly sought to change. “The city attorney has acted as if written communications [of this type] were subject to disclosure for 15 years,” Crossman noted.
The case has not been set for oral argument yet.