Supremes: No, really, Memos by Government Attorneys are Public Records unless Expressly Exempted!

Lightbourne v. McCollum, ---- So.2d ----, 32 Fla. L Weekly S707 (Fla. Nov. 1, 2007).

In the process of determining that Florida’s amended rules governing lethal injection must fail once again before a condemned prisoner can complain of 8th Amendment violations, the Florida Supreme Court struck a blow for public records in a situation that demonstrates exactly why the efforts of the State and Local Government Section to eviscerate the rules, must be stopped.
At issue were two memos by an assistant general counsel that related facts regarding earlier litigation involving inmates that had already been executed. The memos also had been previously disclosed.

The issue was clear: the memos contained documentation regarding alternative means of assessing the state of consciousness of a person being executed and other facts relevant to the issue, including evaluations of techniques that had not been adopted by the state. That is, the memos demonstrated that the state knew of alternatives that it was not adopting and the arguments for their use.

The State claimed that because they were prepared for litigation, they were subject to attorney-client privilege or work-product privilege.

The Court found that the public records law was to be broadly construed and exemptions narrowly construed. The Court noted that documents prepared by a government attorney are exempt only when (a) they contain the attorney’s mental impressions, litigation strategy or legal theory AND (b) are prepared exclusively for litigation or anticipation for imminent ligation, AND (c) that any exemption exists only until the conslusion of the litigation or the execution of the sentence.

Applying these rules, the court found that (1) the contents were largely factual and did not disclose litigation strategy (2) the memos on their face did not apply or pertain to particular pending litigation and (3) that if they were prepared for the litigation indicated, the exclusion died with the inmates. The court then looked at the County’s assertion that the document should be excluded because any disclosure had been inadvertent. The Court noted that some courts had held that any disclosure waives a privilege while others had applied a “relevant circumstances” test. Without holding that Florida would, does, or will follow the “relevant circumstances” test, the Court noted that the state had not provided that it had taken reasonable precautions against release, or that the interests of justice would be served by suppressing the documents. The Court therefore held that the privilege would have been waived, if it had existed.

These are critical issues for all private sector/public interest attorneys to recognize (and local government attorneys to respect).