American Health Lawyers Association

1. Janine Sarti, Esq. Palomar Pomerado Health November 3, 2011 Exploring Public Records Laws, the Attorney-Client Privilege, and Relevant Exceptions American Health Lawyers Association vs.

2. California Attorney-Client Privilege California Public Records Act (CPRA) Increase freedom of information by giving the public access to information in possession of public entities. Open Meetings Law (Ralph M. Brown Act) “The people insist on remaining informed so that they may retain control over the instruments they have created.” Florida Attorney-Client Privilege Florida Public Records Act Enacted to allow greater public involvement in the government decision making process by opening up records to public scrutiny. Open Meetings Law (Government in the Sunshine Law) “The obvious intent of the legislature was to cover any gathering of the members of a [public body] where the members deal with some matter on which foreseeable action will be taken by the [public body].” Florida Supreme Court Relevant Laws

3. Agenda • Attorney Client Privilege: • What is it? Why is it important? • Public Records Acts: • Florida • FL Public Records Act v. Attorney-Client Privilege • Exemptions • California • CA Public Records Act v. Attorney-Client Privilege • Exemptions • Open Meeting Laws: • Florida • Government-in-the-Sunshine v. Attorney-Client Privilege • Exceptions • California • Ralph M. Brown Act v. Attorney-Client Privilege • Exceptions

4. What is the Attorney-Client Privilege?

5. California • California Evidence Code § 954: the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) the holder of the privilege; (b) a person who is authorized to claim the privilege by the holder of the privilege; or (c) the person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure. • California Business and Professional Code § 6068(e): It is the duty of an attorney to: • (1) maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. • (2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. • Client holds the privilege

6. Florida • Florida Evidence Code § 90.502: “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications…made in the rendition of legal services to the client.” • Florida Rules of Professional Conduct (4-1.6): fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. • Client holds the privilege

7. Basis for Attorney-Client Privilege • The interests of justice require that people seeking legal advice be able to talk freely to their attorney without fear of the consequences of disclosure.

8. Waiver? • Express: “I waive the privilege.” • Implied: Client’s offer of his own attorney’s testimony on a matter is a waiver to all other communications on the same matter. • Privilege is a shield—not a sword.

9. The Attorney-Client Privilege in the Context of Governmental Entities • Tension between two competing interests: (1) open government; and (2) the effective administration of justice • Open government • Important in a democratic society. • Effective administration of justice • The privilege promotes forthright legal advice and thus screens out meritless litigation that could occupy the courts at the public’s expense

10. Public Records Laws: The Attorney-Client Privilege and Other Exemptions

11. Florida Public Records Act vs. The Attorney-Client Privilege

12. Florida Public Records Act • First of Florida’s “open government laws” • Florida Statute Section 119.01(1): • “It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.” • Purpose: allow citizens to discover what their government is doing

13. What is a Public Record? • Practically everything an organization has is a public record • Florida Statute § 119.01(1): Public records means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency • Florida Statute § 119.01(2): "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. • Florida : Strong presumption that public records must be disclosed • Some (narrow) exemptions from this presumption

14. Florida Public Records Act Limits the Attorney-Client Privilege • The Public Records Act applies to communication between attorneys and governmental agencies; there is no judicially created privilege which exempts these documents from disclosure. • The Evidence Code does not remove communications between an agency and its attorney from the open inspection requirements. Wait v. Florida Power and Light Company, 372 So. 2d 420 (1979). • Any exemption from the Public Records Act must be created by the legislature, not the courts. • Legislature recognized that developing case law afforded public entities no protection under either the work product doctrine or the attorney-client privilege. Legislature created an exemption for certain types of work product. See Florida Statute § 119.071(1)(d)(1).

15. Florida Statute Section 119.071(1)(d)(1) • Florida Statute § 119.071(1)(d)(1): • A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that wasprepared exclusively for civil or criminal litigationorfor adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt [from disclosure] until the conclusion of the litigation or adversarial administrative proceedings.

16. Other Exemptions to the Florida Public Records Act • Statutory exemptions relating to hospital and medical records: • Communicable or infectious disease reports • Employee evaluations and personal identification information • Quality assurance records • Patient records • Organ and tissue donor records • Proprietary business records

17. Proprietary Business Records Exemption • The following public hospital records and information are confidential and exempt from disclosure: • Contracts for managed care arrangements under which the public hospital provides health care services and any documents directly relating to the negotiation, performance, and implementation of such contracts; • Certain strategic plans; • Documents, offers, and contracts (not including managed care contracts) that are the product of negotiations with nongovernmental entities for the payment of services when such negotiations concern services that are or may reasonably be expected to be provided by the hospital’s competitors, provided that if the hospital’s governing board is required to vote on the documents, this exemption expires 30 days prior to the date of the meeting when the vote is scheduled to take place; • Trade Secrets

18. Trade Secret • Fla. Stat. § 812.081(c) • "Trade secret" means the whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. "Trade secret" includes any scientific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be: • (1) Secret • (2) of Value • (3) For use or in use by the business; • (4) Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it • when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

19. Florida Public Records Act • Overall: • Strong presumption in favor of disclosure. • Exemptions to disclosure must come from Legislature. • 119.071(1)(d)(1): limited work product exemption • Florida Statute § 395.3035(2): confidentiality of hospital records and meetings • Evidence code does not provide an exemption. • Policies of open government prevail over attorney-client privilege.

20. California Public Records Act v. The Attorney-Client Privilege

21. What is a Public Record? • Practically everything our organization has is a public record. • California Government Code § 6252(e): Public Record includes any 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. • “Writing” means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. • Some (narrow) exemptions from this presumption.

22. California Public Records Act • California Government Code § 6250: • In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. • California Government Code §§ 6254(b) and (k): • Pursuant to these sections, not all records are subject to the disclosure requirement. • Section 6254(b): “Except as provided in Sections 6254.7 and 6254.13, nothing in this chapter shall be construed to require disclosure of records that are any of the following: (b) records pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled.” • Section 6254(k): “Records, 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.”

23. Distinction Between Section 6254(b) and Section 6254(k) • 6254(b) refers to litigation records generally. • 6254(k) specifically refers to matters of privilege, including the attorney-client privilege. • “A local governing body is the holder of the attorney-client privilege with respect to written legal opinions by the governing body’s attorney, and may assert the privilege under the Public Records Act without alleging that the writing is relevant to pending litigation under section 6254(b).” Roberts v. City of Palmdale, 5 Cal. 4th 363, 373 (1993).

24. California Public Records Act Recognizes the Attorney-Client Privilege • The California Public Records Act has made the attorney-client privilege applicable to public records. • While the scope of confidential meetings is limited by California’s public meeting requirements, the limits outlined in the Brown Act do not abrogate the privilege as to written legal advice transmitted from counsel to members of the local governing body.

25. Case Law • Roberts v. City of Palmdale, 5 Cal. 4th 363 (1993): • The California Supreme Court held that the Public Records Act did not require public disclosure of a letter from the city attorney distributed to members of the city council, expressing the legal opinion of the city attorney regarding a matter pending before the council. • The privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened. • The public interest is served by the privilege because it permits local government agencies to seek advice that may prevent the agency from becoming embroiled in litigation, and it may permit the agency to avoid unnecessary controversy with various members of the public.

26. Other California Exemptions • Personnel, medical, or similar records • Preliminary notes, drafts, and memoranda • Investigative records and intelligence information • Litigation and attorney records • Pending claims and litigation; attorney-client privilege; and attorney work product • Official information • Trade secrets • Public interest exemption • Deliberative Process Privilege

27. Florida Strong presumption in favor of disclosure Exemptions must come from Legislature 119.071(1)(d)(1): limited work product exemption Evidence code does not provide an exemption Policies of open government prevail over attorney-client privilege California Strong presumption in favor of disclosure California Public Records Act has made the attorney-client privilege applicable to public records Evidence Code does provide an exemption Public Records Act and relevant exemptions strike a balance between the public’s right to know, the effective administration of justice, and privacy rights Florida v. California

28. Open Meeting Laws: The Attorney-Client Privilege and Relevant Exceptions

29. Florida Government in the Sunshine Law • Florida Statute § 286.011 • Three basic requirements of § 286.011: • (1) Meetings of public boards or commissions must be open to the public; • (2) Reasonable notice of such meetings must be given; and • (3) Minutes of the meetings must be taken • Purpose: “to prevent at non-public meetings the crystallization of secret decisions to a point just short of ceremonial acceptance.” (i.e., Florida requires governmental entities to conduct their business “in the sunshine.”). • Any meeting in which official acts are to be taken are to be open to the public, and no “resolution, rule or formal action shall be considered binding except as taken or made at such meeting.” • Enacted for the public benefit, the Sunshine Law should be liberally construed to give effect to its public purpose while exemptions should be narrowly construed. Zorc v. City of Vero Beach, 722 So. 2d 891, 1998 Fla. App. LEXIS 15021

30. History of Florida’s Government in the Sunshine Law • Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (1985): • The court held that the Sunshine Law applied to “meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party.” • The court expressly rejected the arguments that either the evidence code or the rules of professional conduct created an exemption to the Sunshine Law. • Open Meetings Law eliminated the ability of the governing body to meet in private. • The court deferred to the legislative branch’s power, and left it to the legislature to decide when and under what circumstances a government attorney could confer privately with the government client.

31. Florida Statute Section 286.011(8) • Enactment of Sunshine Law, Florida Statute § 286.011(8), permits a governmental entity to meet privately with its attorney provided that certain conditions are met.

32. Florida Statute Section 286.011(8) (cont.) • Any board of any state agency, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity’s attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, so long as the following conditions are met: • (a) the entity’s attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation. • (b) the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenses. • (c) the entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter’s notes shall be fully transcribed and filed with the entity’s clerk within a reasonable time after the meeting.

33. Florida Statute Section 286.011(8) (cont.) • (d) the entity shall give reasonable public notice of the time and date of the attorney-client session and the names of the persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session. • (e) the transcripts shall be made part of the public record upon conclusion of the litigation

34. Interpreting the Exception • Case Law: • Attorney-client exception to the Open Meetings Law has been construed narrowly and strictly. • Zorc v. City of Vero Beach, 722 So. 2d 891 (1998): • Only those persons listed in the exception (i.e., the entity, the entity’s attorney, the chief administrative officer of the entity, and the court reporter) are authorized to attend closed attorney-client sessions to discuss pending litigation. Other staff members and consultants are not allowed to attend. • Closed-door meetings must stay within the scope of the exception: • Pending litigation • Presently a party • Advice concerning litigation confined to settlement negotiations or strategy related to litigation expenditures. • Curing the Violation: • Tolar v. School Board of Liberty County, 398 So. 2d 427, 429 (1981): • Sunshine law violations can be cured by independent, final action in the sunshine that is “not merely a ceremonial acceptance of secret actions and was not merely a perfunctory ratification of secret decisions at a later meeting open to the public.”

35. Other Exceptions to Florida’s Sunshine Law • The following meetings are exempt from § 286.011: • Meetings of peer review panels, committees and governing bodies of hospitals or ambulatory surgical centers licensed in accordance with chapter 395 F.S., which relate to disciplinary actions and are held to achieve the objectives of such panels, committees, or governing boards. § 395.0193(7) • Meetings of the committees and governing board of a licensed facility held solely for the purpose of achieving the objectives of risk management. § 395.0197(14) • Portions of meetings which relate solely to patient care quality assurance. § 381.0055(3) • Portions of a meeting of a public hospital’s governing board at which negotiations for contracts with nongovernmental entities occur or are reported on when such negotiations concern services that are or are reasonably expected to be provided by the hospital’s competitors. § 395.3035(3)

36. Exceptions to Florida’s Sunshine Law (cont.) • Portions of meetings at which certain written strategic plans are considered. § 395.3035(4) • However, a hospital may not approve a binding agreement to implement a strategic plan at any closed meeting. • Portion of a public meeting which would reveal information contained in a comprehensive emergency management plan that addresses the response of a hospital to an act of terrorism. § 395.1056(4) • Any portion of the meeting of the governing board, peer review panel, or committee meeting of a university health services support organization during which a confidential and exempt contract, document, record, marketing plan, or trade secret is discussed. § 1004.30(3)

37. Recent Sunshine Law Case • June 2011- Florida court nullified Florida Hospital-Bert Fish merger • Bert Fish’s merger with Adventist Health System (Florida Hospital’s parent company) deemed invalid because it violated Florida’s Sunshine Law. • After 21 months of closed-door meetings, the hospitals decided to merge in a closed meeting. • Adventist Health System spent more than $300,000 to redo the entire merger process, held more than 20 public meetings, and got comments. • Adventist’s attempts to cure the violation were too late and inadequate. The cure must be independent of the violation. • Bert Fish Medical Center (tax supported) has made a $22.5 million legal-malpractice claim against its former attorney who advised the Bert Fish hospital board that it could meet outside public view and decide to merge.

38. California’s Ralph M. Brown Act • Imposes an “open meeting” requirement on local legislative bodies • The Brown Act’s purpose is to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation by public bodies.

39. Attorney-Client Privilege and the Ralph M. Brown Act • California’s application of the attorney-client privilege to Open Meeting Laws: • Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation. • Litigation is pending when any of the following occurs: • Litigation has been initiated formally; agency has decided or is meeting to decide whether to initiate litigation; there is a significant exposure to litigation if matters related to specific facts and circumstances are discussed in open session.

40. The Ralph M. Brown Act Does Not Abrogate the Attorney-Client Privilege • Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 69 Cal. Rptr. 480 (1968): • “Settlement and avoidance of litigation are particularly sensitive activities, whose conduct would be grossly confounded, often made impossible, by undiscriminating insistence on open lawyer-client conferences. In settlement advice, the attorney's professional task is to provide his client a frank appraisal of strength and weakness, gains and risks, hopes and fears. If the public's "right to know" compelled admission of an audience, the ringside seats would be occupied by the government's adversary, delighted to capitalize on every revelation of weakness.”

41. Other Exceptions to California’s Ralph M. Brown Act • Agencies can also meet in closed session to consider whether a significant exposure to litigation exists, based on specific facts and circumstances. • “Specific facts and circumstances:” • the agency believes that facts creating significant exposure to litigation are not known to potential plaintiffs; • facts (e.g., an accident, disaster, incident, or transaction) creating significant exposure to litigation are known to potential plaintiffs; • agency receives a claim or other written communication threatening litigation; • a person makes a statement in an open public meeting threatening litigation; • a person makes a statement outside of an open and public meeting threatening litigation, and an agency official having knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting.

42. Other Exceptions to California’s Ralph M. Brown Act (cont.) • Closed Session Exception (narrowly construed) • Personnel exception • Pending Litigation and Attorney-Client Privilege • Real property negotiations • Labor Negotiations • Public Security • License Application (special provisions for the consideration of license applications by persons with criminal records) • Health and Safety Code §§ 1461, 1462, 32106, and 32155 • Government Code §§ 37606 and 37624.3 as they apply to hospitals

43. Florida Values open government Closed sessions permitted Exceptions construed narrowly California Values open government Closed sessions permitted Exceptions construed narrowly Florida v. California

44. Questions? Janine A. Sarti, Esq. janine.sarti@pph.org (858) 675-5133