Fairfax Schools Monitor has just filed a new lawsuit against the Fairfax County School Board. It challenges the Board’s improper assertion of “attorney-client privilege” to withhold documents requested under the Virginia Freedom of Information Act (FOIA).
During the past few months, we have been seeking documents relating to the development of the School Board’s “Anti-Racism, Anti-Bias Curriculum” and the revision of its “Controversial Issues Policy.” The process has been tedious. The voluminous documents have been given up in several batches. When we receive the documents, we find cross-references to other records that haven’t been produced, necessitating follow-up requests.
In some cases, the Board has withheld documents, or has blacked out parts of them, on the ground that the they are exempt from disclosure because of “attorney-client privilege.” We are suing because the Board hasn’t justified its claims.
The Basis for the Suit
In essence, the attorney-client privilege says that when a client confidentially communicates with his or her lawyer in seeking legal advice, and when the lawyer confidentially renders legal advice, the communications are protected from disclosure.
The privilege doesn’t protect all communications between lawyers and clients. Many communications are routine correspondence or factual documents that don’t convey legal advice.
In-house lawyers for government bodies often play a variety of roles. In addition to giving legal advice, they might participate in drafting documents, in providing non-legal advice about a proposed action, or in making business decisions. Documents relating to these other roles are not protected from disclosure.
If a government body withholds a document on the basis of privilege, it must justify its decision. This is usually done with a privilege log, i.e., a list of the documents being withheld (sender(s), recipient(s), subject line, etc.) and a description of why each of them is privileged (e.g., “the document discloses the legal advice of lawyer X about subject Y.”)
The School Board has not provided us with any justification for its assertions of privilege. Despite our requests, it has not provided a privilege log or any explanation of why the withheld documents are exempt from disclosure. Thus, our only recourse is to file our claim in court.
The School Board has an experienced in-house legal department, headed by Division Counsel, John Foster. Mr. Foster knows the ground rules for asserting privilege, and he hasn’t come close to abiding by them. There is only one explanation for this conduct. He knows that most people who request documents from the school system aren’t lawyers, and many of them lack the resources or legal knowledge to challenge a government agency’s stonewalling. Rather than being forthcoming, he is attempting to use his power to inhibit legitimate requests by Fairfax County citizens.
Division Counsel needs to be told what the School Board’s duties are. That’s why this suit has been filed.