March 9, 2022: The City of Sammamish just advised it will not produce the 44-page and 88-page reports of its investigation of City Manager David Rudat, citing attorney-client privilege and work product.
Sammamish Comment sought the full reports under the State’s Public Records Act. The Comment submitted its request in November. It’s taken nearly four months to respond to the PRR.
The City’s response is below:
Please be advised that the full report that you have requested is exempt from PRA disclosure as attorney/client communication and work product material prepared for the purpose of providing legal advice to the City and in anticipation of potential litigation. Please see below the legal basis for the report exemption.
Work product and attorney/client privileges may apply to communications between employees in an organization when the communications are made to secure legal advice. Doehne v. EmpRes Healthcare Mgmt., LLC, 190 Wn. App. 274, 283, 360 P.3d 34, 38 (2015). Courts have recognized “that entrusting counsel to compile and maintain information to which so many confidentiality interests potentially attached” was in the public interest. Id. Soter v. Cowles Pub. Co., 131 Wn. App. 882, 904, 130 P.3d 840, 849 (2006), aff’d, 162 Wn. 2d 716, 174 P.3d 60 (2007). Where the employer shows that the records relating to an ongoing investigation of an employee were prepared for the purpose of obtaining legal advice—such as determining the best course of action to reduce the regarding potential liability issues—then these documents are privileged.
The work product doctrine applies to documents created by investigators working for attorneys, provided the documents were created in anticipation of litigation. See, Humann v. City of Edmonds, 2014 WL 12026090, at *2 (W.D. Wash. May 12, 2014) (UNPUBLISHED), citing In re Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 357 F.3d at 907 (citing United States v. Nobles, 422 U.S. 225, 239 (1975)). Here, there was no requirement—such as City policy or statutory or regulatory requirement—that the City or its attorneys conduct an investigation, or prepare a written report, or that the result of its investigation be shared with anyone. Additionally, the nature of the inquiry regarding the City Manager involved assessing the extent to which attorney/client privileged communications and/or work product between the City and its City Attorneys and outside litigation counsel may have been disclosed to a third party, which necessitated granting access to such privilege (or potentially privileged) information to the third-party investigator to assess and evaluate the facts and seek legal advice regarding courses of action.
Even documents created both in anticipation of litigation and for some other purpose are still protected from disclosure as “dual purpose” documents. Id. See also, Humann supra (applying work product doctrine to preclude production of notes and documents prepared by investigator retained by outside counsel to investigate workplace whistleblower retaliation complaint to provide legal advice to Mayor regarding whether to uphold employee’s termination or reinstate her in lawsuit involving both Federal and Washington State law claims). At the time the investigator was asked to prepare a written report to outside legal counsel for purposes of providing legal advice to the City Council, at least one tort claim had been filed and the potential for additional claims/litigation against the City had been raised. Legal advice sought by members of the Council included questions regarding the potential impact to City interests in pending claims as well as potential additional claims as a result of various decisions the Council might make.
Here, requiring the City to produce documents that were created for the purpose of providing legal advice regarding a number of issues, including potential exposure to various existing or anticipated legal claims would prejudice the City by delving into the inviolate relationship between the City and its attorneys. Such disclosure necessarily puts the client’s inquiries and lawyer’s advice at issue and subject to inquiry and debate, and requires disclosure of their evaluation and analysis of various issues that may expose the City to liability in this case or others.
The attorney-client/work product privilege “applies to any information generated by a request for legal advice.” Soter v. Cowles Pub. Co., 131 Wn. App. at 903; see also, RCW 5.60.060. This includes communications pertaining to ongoing litigation or legal advice regarding reducing the risk of liability. See, Doehne, supra 190 Wn. App. at, 283; Soter v. Cowles Pub. Co., 131 Wn.App. at 903 (privilege applies both to communications by attorneys to their clients and records “created by clients with the intention of communicating with their attorneys”), aff’d, 169 Wn.2d at 716 (notes intended for communication to school’s attorneys, were also protected from disclosure under the attorney-client privilege); Davis v. City of Seattle, 2007 WL 4166154 (W.D. Wash. 2007) (UNPUBLISHED) a Federal judge granted the City’s motion for protective order precluding production of drafts of investigative reports and communications between an outside investigator and the City’s legal advisors. The outside investigator’s report was never at issue in the case, as the City has chosen to voluntarily produce it to the Plaintiff. Id. A report without redactions was provided to you on December 16, 2021, along with documents responsive to your request. At this time, the City believes it has fulfilled your request and will close the above-referenced request file. If staff has misinterpreted any part of your request, please advise us as soon as possible, as it is the intent of staff to fully comply with RCW 42.56 in a timely manner.