J. Litigation; pending litigation or other attorney-client privileges.

There is no express provision in the OMA allowing closed meetings to discuss litigation or to confer with the body's attorney or discuss advice from the attorney. Executive sessions for these purposes are common practice, however. They are generally justified on one of two grounds: They may legitimately come within (c)(1), as where the public discussion of settlement proposals to resolve a lawsuit would allow the other side to immediately know the public agency's position and thereby clearly have an adverse effect on the agency's finances. Or, they are often justified under (c)(3) as "matters which by law, municipal charter or ordinance are required to be confidential." Many local government units have adopted specific provisions allowing closed meetings with their attorneys; others may rely on a common law privilege for attorney-client communications. (If it is the latter, note that the attorney-client privilege applies only to communications intended to be confidential, and can be waived by the client at any time). States generally recognize the right of public agencies to confer with counsel. However, a number of courts in other states have cautioned that this privilege can be easily abused, and must be narrowly construed to prevent unnecessary executive sessions. In the 1980s, superior courts in Wrangell and Ketchikan made rulings that were not receptive to expansive interpretations of the privilege, see, Etolin Enterprises Inc. v. Wrangell City School District, Case No. 1WR -85-43 Civ. (Alaska Super. Ct., 1st Jud. Dist., filed February 28, 1985) (voiding the award of a bus contract; no judicial opinion issued squarely addressing the privilege issue); and see Pioneer Printing Company Inc. v. Georgia Skannes, Case No. 1KN -86-494 Civ. (Alaska Super. Ct., 1st Jud. Dist., 1986) (finding OMA violations in a series of assembly actions).

In Cool Homes v. Fairbanks Northstar Borough, 860 P.2d 1248 (Alaska 1993), the Alaska Supreme Court addressed the concurrent operation of the lawyer-client privilege and the Open Meetings Act. During a meeting of the Fairbanks North Star Borough's Board of Equalization, convened to review the Borough's assessment of Cool Homes' property, the Board called an executive session to discuss "the ins and outs and status of both Cool Homes and the Alaska Housing cases" and "litigation." The executive session was held over Cool Homes' objection. Relying on AS 44.62.310(c)(3), which provides that executive sessions may be conducted to discuss "matters which by law, municipal charter or ordinance are required to be confidential," the superior court held that the attorney-client privilege operates concurrently with AS 44.62.310 although it is not an expressed exception, so that the Board's executive session called to discuss the status of this case with its attorney did not violate the OMA.

The Alaska Supreme Court, citing the policies underlying the principle of open meetings in AS 44.62.312, including "the people's right to remain informed shall be protected so that they may retain control over the instruments they have created," held that the "applicability of the lawyer-client privilege must be narrow to afford this objective maximum realization." The Alaska Supreme Court cited with approval a case that it has previously relied upon in other public access decisions, The Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App.2d 41, 58, 69 Cal. Rptr. 480 (1968) (since superseded by statute). It cited with approval the California court's discussion of the importance of limiting the lawyer-client privilege:

The two enactments are capable of concurrent operation if the lawyer-client privilege is not over-blown beyond its true dimensions.. . . Public board members, sworn to uphold the law, may not arbitrarily or unnecessarily inflate confidentiality for the purpose of deflating the spread of the public meeting law. Neither the attorney's presence nor the happenstance of some kind of lawsuit may serve as the pretext for secret consultations whose revelation will not injure the public interest.

The Supreme Court also noted that other jurisdictions have limited a lawyer-public body exception to their open meeting acts to consideration of underlying pending litigation, stating that such a limitation "reflects a concern that when the public body is a party to a lawsuit, it should not be disadvantaged by allowing its opponents access to its meetings with counsel." 860 P.2d at 1261. The Alaska Supreme Court stated that the exception is not appropriate for the "mere request for general legal advice or opinion by a public body in its capacity as a public agency," 860 P.2d at 1261-1262, and that the privilege should not be applied blindly.

It is not enough that the public body be involved in litigation. Rather, the rationale for the confidentiality of the specific communication at issue must be one that the confidentiality doctrine seeks to protect: candid discussion of the facts and litigation strategies.. . . The principles of confidentiality in the lawyer-public body relationship should not prevail over the principles of open meetings unless there is some recognized purpose in keeping the meeting confidential. . . . The privilege thus should be applied only when the revelation of the communication will injure the public interest or there is some other recognized purpose in keeping the communication confidential.

860 P.2d at 1262. The court in Cool Homes emphasized that this restrictive application of the attorney-client privilege in the context of public bodies is especially appropriate where the public bodies' counsel is also appearing before the body as an advocate. "Public revelation of public counsel's interpretation of 'what has happened in the year between the last session and today as to court findings' would not be injurious to the public interest. It might be informative and desirable." 860 P.2d at 1262. Despite these general observations, the court found that the executive session in the Cool Homes case was not a violation, given the peculiar circumstances present there. It said that the Board was entitled to legal advice as to how its members could avoid legal liability with specific reference to ongoing litigation In fact, the trial judge had admonished the Borough's counsel to give legal advice to the Board and its members about this. The Supreme Court said the Board was entitled to legal advice as to how it and its members could avoid legal liability under these circumstances, "although not general legal advice." Ibid.