ALLAN L. BERGANO
CITY OF VIRGINIA BEACH
THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas
Padrick, Jr., Judge
STEPHEN R. McCULLOUGH JUSTICE,
Allan L. Bergano is embroiled in litigation in federal court
with the City of Virginia Beach. He submitted a request under
the Virginia Freedom of Information Act ("VFOIA"),
asking for records of "all legal fees and expert
invoices relating to all of the [City's] expenses"
in litigating against Bergano in federal court. The City
responded by providing extensively redacted records. Bergano
then filed a petition for a writ of mandamus in the Circuit
Court of the City of Virginia Beach asking the court to
compel the City to limit the scope of the redaction. The
circuit court denied the petition, holding that two VFOIA
exceptions, the attorney-client exception and the
work-product exception, justified the City's redactions.
Bergano appeals from this decision. We conclude that the
circuit court's application of the attorney-client and
work-product exceptions was excessively broad and,
consequently, we will reverse the judgment below.
Bergano made a request under VFOIA for the City to disclose
"[a]ll invoices, bills or statements including, but not
limited to, all legal fees and expert invoices relating to
all of the [City's] expenses related to the litigation of
Dr. Allan L. Bergano, D.D.S. and Dr. Allan L. Bergano,
D.D.S., P.C. v. City of Virginia Beach . . . known as Case
No.: 2:15cv520." In response, the City provided
approximately 63 pages of invoices and payment documentation
from its outside counsel and approximately 16 pages of
invoices and payment documentation for its expert witnesses.
The City redacted most of the details, leaving only the date,
name of the attorney, time billed, and the attorneys'
hourly rates, as shown in the illustration below.
justify these substantial redactions, the City invoked the
exceptions to disclosure under Code §§
2.2-3705.1(2) and -3705.1(3), which shield from disclosure
records that fall under the attorney-client privilege and the
Bergano then filed a petition for a writ of mandamus seeking
to compel the City to disclose its records. The City again
invoked the attorney-client privilege and the work-product
doctrine. At oral argument before the circuit court, an
attorney for the City explained that, with litigation
pending, the City was concerned about waiving attorney-client
privilege or the protections of the work-product doctrine and
felt compelled for that reason to err on the side of limiting
disclosure. After reviewing the documents in camera,
the court concluded that the records were exempt from
disclosure under VFOIA. This appeal followed.
issue before us is a matter of statutory interpretation.
Consequently, we review the circuit court's decision de
novo. Fitzgerald v. Loudoun Cnty. Sheriff's
Office, 289 Va. 499, 504 (2015).
VFOIA, "[e]xcept as otherwise specifically provided by
law, all public records shall be open to citizens of the
Commonwealth . . . during the regular office hours of the
custodian of such records." Code § 2.2-3704(A). As
a bookend to this broad mandate of disclosure, VFOIA further
provides that "no record shall be withheld . . . unless
specifically made exempt pursuant to this chapter or other
specific provision of law." Code § 2.2-3700(B).
provides exceptions for documents protected by the
attorney-client privilege and for attorney work-product. Code
§ 2.2-3705.1(2) exempts from disclosure under VFOIA any
"[w]ritten advice of legal counsel to state, regional or
local public bodies or the officers or employees of such
public bodies, and any other information protected by the
attorney-client privilege." Code § 2.2-3705.1(3)
also exempts "[l]egal memoranda and other work product
compiled specifically for use in litigation." In
construing the scope of these exceptions, VFOIA provides that
"[a]ny exemption from public access to records . . .
shall be narrowly construed." Code § 2.2-3700(B).
a general rule, confidential communications between an
attorney and his or her client made in the course of that
relationship and concerning the subject matter of the
attorney's representation are privileged from
disclosure." Walton v. Mid-Atlantic Spine
Specialists, P.C., 280 Va. 113, 122 (2010). "The
objective of the attorney-client privilege is to encourage
clients to communicate with attorneys freely, without fearing
disclosure of those communications made in the course of
representation, thereby enabling attorneys to provide
informed and thorough legal advice." Id. Under
the Virginia Rules of Evidence, the attorney-client privilege
is "governed by the principles of common law as
interpreted by the courts of the Commonwealth in the light of
reason and experience." Va. R. Evid. 2:502.
respect to attorney work-product, this Court's Rule
4:1(b)(3) generally shields from disclosure all otherwise
discoverable documents and tangible things prepared in
anticipation of litigation or for trial absent a showing of
substantial need and the absence of access to other
equivalent sources of information without undue hardship, and
expressly protects from discovery "the mental
impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
litigation." "[I]t is essential that a lawyer work
with a certain degree of privacy, free from unnecessary
intrusion by opposing parties and their counsel. Proper
preparation of a client's case demands that [the
attorney] assemble information, sift what [counsel] considers
to be the relevant from the irrelevant facts, prepare . . .
legal theories and plan . . . strategy without undue and
needless interference." Hickman v. Taylor, 329
U.S. 495, 510-11 (1947). Work-product is typically material
"prepared in anticipation of litigation or ...