F23-04Posted on May 18, 2023 in Formal Opinions
Opinion Ltr. No. F23-04
May 18, 2023
Attorney-Client Privileged Communications
A record requester (Requester) made a request for copies of communications between the County of Maui Department of the Corporation Counsel (CORP CNSL-M) CORP CNSL-M and its clients regarding the drafting of a bill. CORP CNSL-M partially granted and partially denied the record request, stating that the records it was withholding were protected by the attorney-client privilege and the attorney work product doctrine. Requester declined to pay the estimated fees and costs for the part of the record request which was granted and appealed the partial denial to OIP.
In its response to the appeal, CORP CNSL-M argued that because Requester declined to pay the estimated fees and costs for the portion of the record request that was granted, CORP CNSL-M was not required to respond to the record request. However, the payment of fees is not a prerequisite to filing an appeal and the right to appeal a denial of a record request is independent of a requester paying fees and costs for the part of a record request which is granted. OIP concluded that CORP CNSL-M was required to respond to Requester’s appeal.
Upon in camera review of the records withheld by CORP CNSL-M, OIP found that most redactions made by CORP CNSL-M were either communications made for the purpose of facilitating the rendition of professional legal services between CORP CNSL-M and the employees of the departments and agencies of the County of Maui that CORP CNSL-M serves, or drafts of documents prepared by CORP CNSL-M for its clients. OIP concluded that except for a few specific exceptions, the information withheld by CORP CNSL-M was protected under the attorney-client privilege and the redactions were therefore proper.
OIP further concluded that the attorney work product doctrine was inapplicable to this case. When the attorney work product doctrine applies to record requests, it does so through the exception for records pertaining to litigation to which the State or a county is or may be a party. Upon in camera review of the records, OIP found that the records in question do not appear to have been prepared in anticipation of litigation and instead appear to have been prepared in the ordinary course of business.