The Common Interest Doctrine and the PRA

Is there such thing as privileged communication between local governments and state agencies?

Turns out, yes, there can be. But proceed with caution!

As your agency’s attorneys have likely repeatedly warned, it’s important to be very careful to preserve the attorney–client privilege. The general rule is that the privilege applies to communications between the attorney and client, and once a third party, such as another agency, is included in that communication, the privilege is waived. In the context of local government, this usually means that to preserve the attorney–client privilege, communications should be restricted to only the attorney(s) and relevant staff within the local government.

However, one exception to the general rule is the common interest doctrine, which provides that when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group. See, e.g., Sanders v. State.

A recent case from Division III of the Washington Court of Appeals (Division III), Kittitas County v. Allphin, examines the common interest doctrine as applied to communications between Kittitas County (County) and the Department of Ecology (Ecology). Here’s a breakdown of the key facts from the case:

The Code Enforcement Action

• The County issued a Notice of Violation and Abatement to Chem-Safe Environmental (Chem-Safe) for storing and handling moderate risk waste without proper county permits.
• The County consulted with Ecology on the enforcement action.
• Chem-Safe appealed the enforcement action and the County prevailed.

The Public Records Act (PRA) Requests

• Allphin, Chem-Safe’s president, filed a PRA request with the County seeking all records related to the enforcement action, including attorney emails and correspondence.
• Allphin also filed a similar PRA request with Ecology, seeking, in part, all communications between Ecology and the County related to the enforcement action.
• The County withheld certain records citing RCW 42.56.290, claiming attorney work product and attorney–client privilege.
• The County filed a declaratory judgment action and sought a temporary restraining order to prevent Ecology from releasing a relatively small number of emails the County believed were privileged.

The PRA Lawsuit

• Allphin filed suit under the PRA and argued, among other things, that any emails exchanged between the County and Ecology were not privileged.
• The superior court held that the emails between the County and Ecology were properly withheld because “the County and Ecology worked cooperatively to enforce the environmental laws and were thus on the same legal team.”

In upholding the superior court’s decision, Division III wrote, on page 14 of the opinion, the following:

The common interest or joint defense privilege applies where (1) the communication was made by separate parties in the course of a matter of common interest or joint defense; (2) the communication was designed to further that effort; and (3) the privilege has not been waived. . . . A written agreement regarding the privilege is not required, but the parties must invoke the privilege: they must intend and agree to undertake a joint defense effort.

Even though the County and Ecology did not have a joint prosecution agreement, Division III held that a written agreement was not required because the record demonstrated that the agencies agreed to undertake a “joint/common cause” in the regulatory enforcement action against Chem-Safe.

In addition, Division III found, on page 17 of the opinion, that “[r]eleasing these records would force government attorneys to forego communicating with other law enforcement professionals during litigation due to the fear that their opponents will obtain their mental impressions and ideas.”

Key Takeaways From Kittitas County v. Allphin

This case provides strong support for the ability of local governments to work with state agencies in enforcing state and local laws, and to have certain communications related to these enforcement actions protected as privileged under the common interest doctrine.

While this is good news, I think the case also demonstrates the importance of clarifying the relationship with the other agency early in the process, and if possible, establishing the relationship in a written agreement. Here, the County had to seek a declaratory judgment and injunction to prevent the release of records in the possession of Ecology. If a written agreement were in place, this extra step may not have been necessary. Regardless, proceed carefully and thoughtfully, and understand the risk that records must be disclosed (i.e., that a court will determine the privilege has been waived) is much greater when a third-party agency is involved.

Have a question or comment about the case? Let me know below or contact me directly at jdvorkin@mrsc.org.