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City officials cannot close meeting over contractor's threat to sue

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    NMU         MINNESOTA         Freedom of Information         May 13, 2002    

City officials cannot close meeting over contractor’s threat to sue

  • The state Supreme Court ruled that a contractor’s potential threat to sue city officials did not qualify under an attorney-client privilege exemption because it was not crucial to the discussion of the contractor’s permit application.

The Minnesota Supreme Court May 2 held that officials in Prior Lake, Minn., violated the state open records act when they closed a meeting to discuss a contractor’s letter regarding the city’s revocation of his permit application.

The court held that short of a need for absolute confidentiality, the attorney-client exception did not apply in this situation, even when it appeared that the contractor might sue if the permit was not granted.

The contractor threatened to sue in a letter written on Jan. 18, 2000, discussing the city’s revocation of a permit to operate a gravel extraction site in Prior Lake. The council started discussing the letter in open session on Feb. 7, 2000, but then decided to go into executive session to discuss the potential litigation further.

The Prior Lake American, a local newspaper, sued the mayor and three city council members in March 2000 for violations of the Minnesota Open Meetings Law.

The Supreme Court overturned lower court decisions that held the officials’ need for confidential legal advice relating to a threat of litigation outweighed the public’s right to access. The issue was whether the attorney-client privilege exception even applied.

The Minnesota Open Meetings Law was enacted in 1957 and provides that all meetings, even executive sessions, must be open to the public. Meetings may be closed under certain circumstances, including when the closure is permitted by the attorney-client privilege.

The Supreme Court held that the attorney-client privilege exception to the Open Meetings Law applies only when there is a need for absolute confidentiality and that even when there is threatened litigation, a public body does not always require absolute confidentiality for all its dealings with counsel.

“The attorney-client privilege exists ‘to encourage the client to confide openly and fully in his attorney without fear that the communications will be divulged and to enable the attorney to act more effectively on behalf of his client, ‘” Justice Joan Ericksen Lancaster wrote, quoting from a prior court case dealing with a similar issue.

The court found that the officials could not show how the private meeting would contribute to the litigation strategy, nor could they identify the type of information that would damage the city’s position in future litigation.

(Prior Lake American v. Mader; Media Counsel: Mark Anfinson, Minneapolis) MM

© 2002 The Reporters Committee for Freedom of the Press

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