J. Litigation, pending litigation or other attorney-client privileges
1. Criminal litigation: Rule 9.3(b) of the Alabama Rules of Criminal Procedure states that "[a]ll proceedings shall be open to the public, unless otherwise prohibited by law." Closure of criminal proceedings is primarily a matter of federal constitutional law, which was clearly set out and applied by Alabama's appellate courts in Ex parte Consolidated Publishing Co., 601 So. 2d 423 (Ala.), cert. denied, 113 S. Ct. 665 (1992), and Ex parte Birmingham News Co., 624 So. 2d 1117 (Ala. Crim. App. 1993) (petition for writ of mandamus for access to pretrial proceedings and transcripts of same granted in principal part, denied regarding grand jury proceeding portions only). But see Ala. Code § 12-21-202 (1995) (trial judge has discretion to clear courtroom in prosecutions for rape and assault with intent to ravish or when evidence is vulgar, obscene, etc.); Ex parte Judd, 694 So. 2d 1294 (Ala. 1997) (during the testimony of a child victim of sex abuse and sodomy, the trial court had the discretion to limit access to the courtroom upon a showing of substantial need to exclude some spectators); P.M.M. v. State, 762 So. 2d 384 (Ala. Crim. App. 1999) (trial court failed to make specific findings to justify total closure of the courtroom for the entire trial of a rape, sex abuse, and sodomy case); Ala. Code § 12-21-203(d)(1) (1995) (in prosecution for criminal sexual conduct, evidence regarding past sexual behavior of complaining witness is first presented in camera, for court's determination as to admissibility).
2. Civil litigation: Rule 77(b) of the Alabama Rules of Civil Procedure states that "[a]ll trials upon the merits shall be conducted in open court, except as otherwise provided by statute, and so far as convenient in a regular court room." A state statute permits a judge to clear the courtroom "where the evidence is vulgar," as follows:
In all civil cases sounding in damages involving the question of rape, assault with intent to ravish, seduction, divorce or any other case where the evidence is vulgar, obscene or relates to the improper acts of the sexes and tends to debauch the morals of the young, the presiding judge shall have the right, in his discretion and on his own motion, or on motion of plaintiffs or defendants or their attorneys, to hear and try the case after clearing the courtroom of all or any portion of the audience whose presence is not necessary.
Ala. Code § 12-21-9 (1995).
Closure of divorce proceedings based upon the authority of Alabama Code § 12-21-9 was unsuccessfully challenged in Simmons v. Conger, 86 F.3d 1080 (11th Cir. 1996). The federal appellate court found that the Alabama state court trial judge had acted "pursuant to a state statute" in closing the court room, and the plaintiffs in the federal action did not challenge the constitutionality of the state statute. 86 F.3d at 1084, 1086. Although the federal court did not invite such a challenge, in the proper case a constitutional challenge to Alabama Code §§ 12-21-9 and -202 (1995) might succeed.
3. Juvenile proceedings: Juvenile proceedings are closed by state law. Ala. Code § 12-15-129 (delinquency, in need of supervision, and dependency hearings for juveniles are closed); Ala. Code § 12-15-408 (involuntary commitment hearings for juveniles are closed); Ala. Code § 26-21-4(o) (all proceedings regarding a minor's petition for waiver of parental consent to abortion are closed); Ala. Code § 26-14-7.1(6) (investigative hearings regarding child abuse and neglect allegedly committed by persons connected with child care facility are closed).
4. Attorney-client meetings: Meetings of governmental bodies may be closed to discuss with their attorney the legal ramifications of and legal options for pending litigation, controversies not yet being litigated but imminently likely to be litigated or imminently likely to be litigated if the governmental body pursues a proposed course of action. Ala. Code § 36-25A-7(a)(3).
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, although as discussed below the Alaska Supreme Court has recognized that the common law permits at least some such discussions. Executive sessions for these purposes, which are a relatively common practice, 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. The Court’s holding in Cool Homes was discussed, in the context of a Public Records Act dispute, in its 2018 opinion in Griswold v. Homer City Council, P.3d , 2018 WL 4375455, at *6, fn. 35 (Alaska, September 14, 2018). In that case, the appellant argued that the Court in Cool Homes had made exceptions to the Open Meetings Act for attorney client and work-product privilege narrower than their litigation counterparts (Alaska Evidence Rule 503, and Civil Rule 26(b)(3), respectively), and that this narrower privilege should be used for these exceptions as applied to the Public Records Act. The Court sidestepped the question. Having already decided, as a matter of first impression, that the attorney-client and work product privileges would be recognized as exceptions to the Public Records Act, the Court stated “We need not decide the degree to which Cool Homes applies to the Public Records Act, and we need not address the scope of Cool Homes other than in the attorney invoices context.” Assuming without deciding that Cool Homes applied to the PRA, the Court concluded that it required no further disclosure than would otherwise be required under existing case law regarding the proper standard for disclosure of attorney invoices, “with the privileges ‘construed narrowly to further the legislature’s goal of broad public access.’”
Any “[d]iscussion or consultation for legal advice with the attorney or attorneys of the public body” can be done in closed executive session. A.R.S. § 38-431.03(A)(3); cf. Fisher v. Maricopa Cty. Stadium Dist., 185 Ariz. 116, 124, 912 P.2d 1345, 1353 (1995) (cautioning that permitting “public bodies to delegate responsibilities to attorneys and then cloak negotiations and executive sessions in secrecy” would frustrate the OML).
Any “[d]iscussion or consultation with the attorneys of the public body in order to consider its position and instruct attorneys regarding the public body’s position regarding contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation” may be conducted in closed executive session. A.R.S. § 38-431.03(A)(4).
But “[a] public vote shall be taken before any legal action binds the public body.” A.R.S. § 38-431.03(D). In addition, “all legal actions [must] be preceded . . . by disclosure of that amount of information sufficient to apprise the public in attendance of the basic subject matter of the action so that the public may scrutinize the action taken during the meeting.” Karol v. Bd. of Educ., Trs., 122 Ariz. 95, 98, 593 P.2d 649, 652 (1979).
The FOIA does not permit an executive session to discuss pending litigation, Ark. Op. Att’y Gen. Nos. 96-372, 95-360, and the attorney-client privilege does not qualify as an exemption that would allow such a session. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). Moreover, the governing body’s attorney is not included in the list of persons who may attend an executive session held pursuant to the personnel exemption. Ark. Code Ann. § 25-19-106(c)(2). See Ark. Op. Att’y Gen. No. 85-181. The Attorney General has also opined that a lawyer may not attend an executive session held under the authority of another statute, such as the provision authorizing closed meetings for student disciplinary matters. Ark. Op. Att’y Gen. No. 87-478. This conclusion is highly dubious because Section 25-19-106(c)(2) deals only with those who may attend a closed meeting to discuss personnel matters. If a governing body meets in executive session pursuant to the FOIA’s licensing exemption, Ark. Code Ann. § 25-19-106(c)(5), or a specific statute that qualifies as an FOIA exemption, the body should, in its discretion, be able to permit attorneys (and others) to attend. See Ark. Op. Att’y Gen. No. 96-009 (parents may attend closed school board meeting held for the purpose of discussing a student’s expulsion).
Bagley-Keene Act: A state body may hold a closed session to confer with, or receive advice from its legal counsel about "pending litigation" when discussion in open session would prejudice the state body's position in the litigation. Cal. Gov't Code § 11126(e)(1). "Pending litigation" exists where:
(1) an adjudicatory proceeding has been initiated formally before a court, administrative body exercising its adjudicatory authority, hearing officer, or an arbitrator, where the state body is a party,
(2) the state body has, or is deciding whether it has, a significant exposure to litigation, based on existing facts and circumstances or
(3) the state body has initiated or is deciding whether to initiate litigation.
Cal. Gov't Code § 11126(e)(2). The state body's legal counsel must prepare and submit a memorandum stating the specific reasons and legal authority for the closed meeting, including where applicable: the title of the litigation or the "existing facts and circumstances" supporting the state body's lawsuit or liability. Cal. Gov't Code § 11126(e)(3). The memorandum should be submitted to the state body before the closed session, but must be submitted no later than one week after the closed session. Cal. Gov't Code § 11126(e)(3). The memorandum does not have to be disclosed under the California Public Records Id. However, if the state body discloses the memorandum, it is not deemed as a waiver of its lawyer-client privilege. Cal. Gov't Code § 11126(e)(5).
This section is the sole expression of the lawyer-client privilege under the Bagley-Keene Act. Cal. Gov't Code § 11126(e)(2).
Brown Act: The Brown Act provides the same exception for a closed session for "pending litigation" as the Bagley-Keene Act. Cal. Gov't Code § 54956.9. However, the Brown Act defines "existing facts and circumstances" with regard to the agency's significant exposure to litigation as follows:
(1) facts and circumstances that might result in litigation against the agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs — these facts need not be disclosed;
(2) facts and circumstances including an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs — these facts and circumstances must be on the agenda or announced;
(3) the receipt of a claim or written communication from a potential plaintiff under the Tort Claims Act (Section 810 of the Government Code) or some other written communication from a potential plaintiff threatening litigation. The claim or written communication must be made available for public inspection pursuant to Government Code Section 54957.5;
(4) a statement by a person made in an open and public meeting threatening litigation on a specific matter within the responsibility of the agency; and
(5) a statement of the type described in (4) above that was recorded by an official or employee of the agency prior to the meeting. The record does not have to identify the alleged victim of unlawful or tortious sexual conduct or the person threatening litigation on their behalf, or a public employee who is the alleged perpetrator, unless the identity has been publicly disclosed. The record must be made available for public inspection.
Cal. Gov't Code § 54956.9(e)(1)-(5).
“[T]he purpose of [section 54956.9] is to permit the body to receive legal advice and make litigation decisions only; it is not to be used as a subterfuge to reach nonlitigation oriented policy decisions.” Trancas Property Owners Ass’n v. City of Malibu, 138 Cal. App. 4th 172, 184-84, 41 Cal. Rptr. 3d 200 (2006). "Pending litigation" also includes taking action upon the settlement of a lawsuit. 75 Ops. Cal. Att'y Gen. 14 (1992). Advisory committees may also meet with legal counsel in a closed session to discuss pending litigation. 67 Ops. Cal. Att'y Gen. 111 (1984). It would not include meeting with an adversary and his or her counsel to settle potential litigation. Page v. Miracosta Cmty. Coll. Dist., 180 Cal. App. 4th 471, 502, 102 Cal. Rptr. 3d 902 (2009). Nor would legal counsel include a mediator with whom members of a legislative body conferred with during a mediation with an adversary to settle potential litigation. Id. at 504.
During the public meeting in which the closed session is held, the legislative body shall report any action taken in closed session regarding approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, to enter as an amici curiae in any form of litigation. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency’s ability to effectuate service of process on one or more unserved parties, ot that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. Cal. Gov't Code § 54957.1(a)(2).
Approval given to legal counsel of a settlement of pending litigation shall be reported in the open session at the public meeting during which the closed session is held if the legislative body accepts during the closed session a settlement offer signed by the opposing party. Cal. Gov’t Code § 54957.1(a)(3)(A). Where final approval rests with some other party or with the court, the fact of the approval and the substance of the agreement must be disclosed, upon request of any person, as soon as the settlement becomes final. Cal. Gov’t Code § 54957.1(a)(3)(B).
Disposition reached as to claims discussed in closed session shall be reported as soon as reached in a manner that identifies the name of the claimant, the name of the local agency claimed against, the substance of the claim, and any monetary amount approved for payment and agreed upon by the claimant. Cal. Gov’t Code § 54957.1(a)(4).
Conferences between a state public body and its attorney to consider legal disputes involving the public body, if the disputes are the subject of pending or imminent court action, are closed, Colo. Rev. Stat. § 24-6-402(3)(a)(II), as are conferences between a local public body and its attorney for the purpose of receiving specific legal advice on specific legal questions. Colo. Rev. Stat. § 24-6-402(4)(b). Cf. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987) (attorney-client privileged communications exempt from Open Records Act). The mere presence or participation of an attorney at an executive session does not satisfy the requirements.
An executive session is allowed to discuss “strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled.” Conn. Gen. Stat. §1-200(6)(E).
An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to Conn. Gen. Stat. §1-200(6)(E). Conn. Gen. Stat. §1-231(b).
In Ansonia Library Bd. of Dirs. v. FOIC, 42 Conn. Sup. 84, 600 A.2d 1058 (1991), the Superior Court held that where the FOIC had issued a decision denying an appeal and the aggrieved party still had time to appeal to court but had given no written indication to the local board of his intent to do so, there was no “pending claim or pending litigation” under §1-200(6)(B) permitting an executive session to discuss the possibility of an appeal. The FOIC decision was held to have terminated the only pending claim. See also Furhman v. FOIC, 243 Conn. 427, 703 A.2d 624 (1997) (the Town of New Milford properly met in executive session to discuss strategy concerning pending litigation, including discussions concerning the hiring of a lobbyist, environmental consultants’ reports, and costs of attorneys and consultants).
In Zoning Commission of Monroe v. FOIC, 316 Conn. 1 (2015), the Supreme Court held that a public agency may convene an executive session under the pending claims or pending litigation exception only to discuss matters that are in connection with a prospective or pending lawsuit or legal proceeding.
District of Columbia
A meeting, or portion of a meeting, may be closed to consult with an attorney to obtain legal advice and to preserve the attorney-client privilege between an attorney and a public body, or to approve settlement agreements; provided that, upon request, the public body may decide to waive the privilege. However, the mere participation at a meeting of an attorney for the public body is not grounds for closure. D.C. Code Ann. § 2-575(b)(4).
The Act does not permit any meeting to be closed on attorney-client privilege grounds for advice or consultation with legal counsel on whether to close a meeting. O.C.G.A. § 50-14-2(1). However, the Act does not repeal the attorney-client privilege, and permits agencies to close a meeting to consult and meet with legal counsel pertaining to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any officer or employee or in which the agency or any officer or employee may be directly involved. Id.
The Act also specifically permits an agency to close a meeting to discuss or vote to authorize the settlement of such a dispute. § 50-14-3(b)(1)(A). However, no vote in executive session to settle litigation, claims, or administrative proceedings, shall be binding on an agency until a subsequent vote is taken in an open meeting where the parties and principal settlement terms are disclosed before the vote. § 50-14-3. In addition, any final settlement agreement, memorandum of agreement, memorandum of understanding, or other similar document, however denominated, in which an agency has formally resolved a claim or dispute shall be subject to the Open Records Act. § 50-14-3(a)(5).
The threat of legal action must be "realistic and tangible," and more than "a mere fear or suspicion of being sued." Claxton Enter. v. Evans Cty. Bd.of Comm'rs., 249 Ga. App. 870, 874, 566 S.E.2d 399 (2002). Additionally, a meeting may not be closed for advice or consultation on whether to close the meeting. O.C.G.A. § 50-14-2.
Meetings to consult with a board's attorney "on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities" may be closed under the attorney-client exception. Haw. Rev. Stat. § 92-5(a)(4). While courts in Hawai‘i seemed to apply the attorney-client privilege whenever an attorney was present, the Hawai‘i Supreme Court took a narrower interpretation of the Sunshine Law’s attorney-client exception, stating that “consultations in executive sessions must be purposeful and unclouded by pretext.” Civil Beat Law Center v. City and County of Honolulu, 144 Hawai‘i 466, 489, 445 P.3d 47, 70 (2019). The Court further warned that “[i]f a non-board members, including the board’s attorney remains in an executive meeting after his or her presence is no longer required for the meeting’s purpose, the executive meeting may lose its ‘executive’ character.” Id.
When a Hawaii County Council subcommittee on collective bargaining met in executive session to hear testimony concerning the progress of negotiations with public employee unions, reporters and others challenged the closed meeting while the Council asked the court to approve the executive session. The court found that the meeting seemed to fall within certain provisions of the Sunshine Law and the County Charter, and that "the provision which is most strongly supportive of openness" would prevail. The court held that although the Sunshine Law permits closed meetings for a board to meet with the county attorney regarding "pending or imminent litigation, or pending contested cases in administrative proceedings," a closed meeting to discuss collective bargaining violated the Charter. County of Hawaii v. Shapiro, Civ. No. 4684 (Haw. 3d Cir. 1977).
The Open Meeting Law contains an exemption for a governing body to “communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of counsel at an executive session does not satisfy this requirement.” Idaho Code § 74-206(1)(f). Similarly, Idaho Code § 74-206(1)(i) provides that an executive session may be held “to engage in communications with a representative of the public agency’s risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed. The mere presence of a representative of the public agency’s risk manager or insurance provider at an executive session does not satisfy this requirement.”
In Farrell v. Bd. of Comm'rs, Lemhi Cnty., 138 Idaho 378, 389, 64 P.3d 304, 315 (2002) overruled on other grounds by City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012), the Idaho Supreme Court held that a county's entry of a stipulation for judgment was void because it was required to be accepted and voted upon during a public meeting.
The public agency may hold an executive session to discuss strategy for initiation of litigation or litigation which is either pending or has been threatened specifically in writing. Ind. Code § 5-14-1.5-6.1(b)(2). If an adversary is present, the meeting cannot be closed. Id. § 5-14-1.5-6.1(b).The Open Door Law precludes a public agency from going into executive session to receive legal advice from its attorneys before a public meeting when the legal advice relates to the subject of the meeting. Simon v. City of Auburn, 519 N.E.2d 205, 209 (Ind. App. 1988); see also Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 549 (Ind. App 2003) (city board violated Indiana Open Door Law when it conferred with its attorney off the record in the course of administrative disciplinary hearings).
Under the Indiana Access to Public Records Act, the work product of an attorney who represents a public agency, the state, or an individual pursuant to state employment or appointment by a public agency may be declared confidential at the agency’s discretion. Ind. Code § 5-14-3-4(b)(2); see also Groth v. Pence, 67 N.E.3d 1104, 1123 (Ind. Ct. App. 2017) (holding that the governor acted in his discretion by not disclosing of white papers as attorney work product). If such records were classified as confidential, then meetings discussing them would qualify as executive sessions under Ind. Code § 5-14-1.5-6.1(b)(7).
Note that the Indiana Supreme Court has limited its interpretative authority under Indiana Code Section 5-14-3-4(b)(2). Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236, 242 (Ind. 2016). The Court held that the issue of whether the documents the plaintiffs sought were “legislative work product” was a non-justiciable question. Id.
Certain strategy discussions of public bodies involving litigation can be closed.
- No Iowa statutes governing the question of whether members of the public may attend proceedings outside the courtroom, e.g. depositions, in actions between or involving governmental bodies have been found. As a general rule, protective orders are available to protect parties from annoyance, embarrassment, oppression, and undue burden and expense. Under appropriate circumstances, the order may provide that the proceeding be conducted with no person present who is not designated by the court. Iowa R. Civ. P. 1.504.
- As a general rule, judicial proceedings are subject to request for expanded media coverage, including broadcasting, televising, electronic recording or photographs of judicial proceedings. Iowa Ct. R. 25.1, 25.2.
A request for expanded media coverage will be denied:
(1) when the court finds coverage would materially interfere with their right to a fair trial;
(2) upon showing of good cause by witness;
(3) in sexual abuse cases during the testimony of a victim/witness;
(4) if the victim/witness in any forcible felony objects;
(5) where police informants and undercover agents are involved;
(6) in proceedings made private by other provisions of Iowa law;
(7) when the proceedings involves juvenile, dissolution, adoption, child custody or trade secret questions; and
(8) during jury selection.
Iowa Ct. R. 25.2
Attorney-client consultations may be closed. K.S.A. 75-4319(b)(2). An attorney must be present. Kan. Att’y Gen. Ops. 1978-303, 1986-162. The privilege may not be invoked if third parties are present during the communication. Kan. Att’y Gen. Ops. 1982-247, 1992-56. A city cannot take binding action on a settlement agreement during a closed or executive session. Kan. Att’y Gen. Op. 1993-55. See “Requirement to state statutory authority for closing meetings before closure” above.
"Discussions of proposed or pending litigation against or on behalf of the public agency" may be closed. Ky. Rev. Stat. 61.810(1)(c); accord Fiscal Court v. Courier-Journal and Louisville Times Co., 554 S.W.2d 72 (Ky. 1977).
More than a mere remote possibility of litigation is necessary to trigger the cited exception. The statute expressly provides, however, that the litigation in question need not be currently pending and may be merely threatened. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923-24 (Ky. 1997). The attorney-client privilege alone does not satisfy the requirements of this exception. Id.
A public body may hold an executive session to conduct a strategy session or negotiations with respect to prospective litigation after formal written demand, or litigation when an open meeting would have a detrimental effect on the litigating position of the public body. La. Rev. Stat. Ann. § 42:17(A)(2).
Meetings that involve consultation with counsel to obtain legal advice, or consultation with staff, consultants, or other individuals regarding pending or potential litigation may be closed. §§ 3-305(b)(7)-(8). The Act, prior to its amendment in 1991, allowed bodies to close meetings to "consult with counsel." § 10-508(a)(7) (1984) (repealed 1992). The 1991 amendment narrowed this to "consult with counsel to obtain legal advice." § 3-305(b)(7). The OMA Manual notes that this language is intended to prevent public bodies from using the presence of counsel as a subterfuge for wrongfully closing a meeting — i.e., "lawyer as potted plant." OMA Manual, at 4-6. Section 3-305(b)(8) may only be invoked when the discussion directly relates to the pending or potential litigation, and not to discuss the underlying policy issue. Id., at 4-7.
There is a statutory exemption for discussions of "strategy with respect to . . . litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares." See G.L. c. 30A, § 21(a)(3). The litigation must be actual or imminent. Doherty v. Sch. Comm. of Boston, 386 Mass. 643, 436 N.E.2d 1223 (1982). Perryman v. Sch. Comm. of Boston, 17 Mass. App. Ct. 346, 458 N.E.2d 748, 751-2 (1983). In the absence of actual or imminent litigation, no executive session may occur for consultation with a government attorney, even if the attorney-client privilege would normally apply. Dist. Att’y for Plymouth Dist. v. Bd. of Selectmen of Middleborough, 395 Mass. 629, 481 N.E.2d 1128 (1985) (executive session to discuss proposed rubbish disposal contract with town counsel held improper).
A closed session may be held "[t]o consult with [an] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body." Mich. Comp. Laws Ann. § 15.268(e); see also People v. Whitney, 228 Mich. App. 230, 578 N.W.2d 329 (1998). However, the public body must “name the pending litigation before entering a closed session,” requiring it to “disclose the particular case or cases it would be discussing.” Vermilya v. Delta Coll. Bd. of Trs., 325 Mich. App. 416, 421, 925 N.W.2d 897, 899-900 (2018).
Prior to 1990, an exception for attorney-client communications was created by the Minnesota Supreme Court in Minneapolis Star & Tribune Co. v. HRA, 251 N.W.2d 620 (1976). Later, the Court described the privilege as a "very limited exception to the Open Meeting Law for attorney-client meetings." St. Cloud Newspapers v. District 742 Community Schools, 332 N.W.2d 1, 5 (Minn. 1983). The Court said that this exception is to be employed or invoked "cautiously, and seldom in situations other than in relation to threatened or pending litigation." In 1990 the statute was amended to include a statement that "meetings may be closed if the closure is expressly authorized by statute or permitted by the attorney-client privilege." Minn. Stat. § 13D.05, subd. 3(b).
There have been several reported decisions that have discussed the phrase "threatened or pending litigation." In 1993, the Minnesota Court of Appeals construed the privilege to apply to "circumstances where litigation is imminent, but not actually commenced," or when the public body "needs advice above the level of general legal advice, i.e., regarding specific acts and their legal consequences." Star Tribune v. Board of Education, Special School Dist. No. 1, 507 N.W.2d 869 (Minn. Ct. App. 1993).
The Minnesota Supreme Court has ruled that, because the attorney-client privilege exception only applies when there is a need for strict confidentiality, the scope of the privilege is narrower for public bodies than for private clients. Prior Lake American v. Mader, 642 N.W.2d 729, 737 (Minn. 2002). However, the Minnesota Court of Appeals has limited the effect of the Prior Lake American decision by broadly defining the circumstances that would amount to "seriously considering legal action." In Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435, 441-42 (2005) the Court of Appeals relied heavily on the affidavit of the lawyer for a public body in determining whether the proper standard had been met in closing a meeting to discuss threatened litigation and found as a relevant factor whether the private meeting would contribute to litigation strategy.
The so-called “litigation” exception, Mo.Rev.Stat. § 610.021(1), encompasses more than litigation. The following information is considered closed:
- records relating to legal actions, causes of action, or litigation involving a public governmental body; and
- confidential or privileged communications between a public governmental body or its representatives and its attorneys; and
- legal work product. See City of Grandview v. Missouri Gas Energy, 2012 WL 12897093 (W.D. Mo. 2012) (explaining that although 610.021(1) provides attorney-client and work-product privileges when the public brings an action pursuant to the Sunshine Law, those privileges do not extend to actions independent of the Sunshine Law).
Mere reference to litigation is not sufficient to trigger this exception. See Tipton v. Barton, 747 S.W.2d 325, 330 (Mo.Ct.App. 1988) (litigation exception applies to analytical work product, but not to general descriptions of legal services rendered appearing on city attorney’s itemized monthly billing statements). After final disposition of a litigation matter, any vote relating to that litigation involving a public governmental body must be made public. Mo.Rev.Stat. § 610.021(1).
Upon final disposition of litigation involving a public governmental body, the body must make public its minutes of closed meetings and its votes. Other confidential or privileged communications and legal work product may remain closed. Mo.Rev.Stat. § 610.021(l).
When a public governmental body is undertaking to exercise the power of eminent domain, the vote must be made public immediately following the action on the motion to authorize institution of a condemnation action. Id.
A public body may close a meeting “when an open meeting would have a detrimental effect on the litigating position of the public agency.” Mont. Code Ann. § 2-3-203(4). A lawsuit must actually be filed before this statutory protection is provided. The mere threat of litigation does not trigger the right to close a meeting. However, a meeting cannot be closed to discuss litigation in which only public agencies are involved. Associated Press v. Bd. of Pub. Educ., 246 Mont. 386, 804 P.2d 376 (1991).
Neb. Rev. Stat. §84-1410(1)(a) allows public body to meet in closed session for "[s]trategy sessions with respect to collective bargaining, real estate purchases, pending litigation, or litigation which is imminent evidenced by communication of a claim or threat of litigation to or by the public body." Id.
A meeting held for the purpose of having an attorney-client discussion of potential and existing litigation pursuant to NRS 241.015(2)(b)(2) is not a meeting for purposes of the Open Meeting Law. However, NRS 241.015(2)(b)(2) does not permit a public body to take action during an attorney-client discussion.
The Statute exempts from the definition of "meeting" "consultation with legal counsel." RSA 91-A:2, I(c). Further, a public body may go into nonpublic session for "consideration or negotiation of pending claims or litigation which has been threatened or filed against the body or agency or any subdivision thereof, or against any member thereof because of his membership in such body until the claim or litigation has been fully adjudicated or otherwise settled.." RSA 91-A:3,II(e).
A town planning board that went into nonpublic session to review and discuss a letter and memorandum from its counsel did not fit within the “consultation with legal counsel” exemption and violated the Statute. Ettinger v. Town of Madison Planning Bd., 162 N.H. 785 (2011).
Discussions of litigation in which a public body is or anticipates being a party may be held in closed session. Also, any matter falling within the attorney-client privilege "to the extent that confidentiality is required in order for the attorney to exercise his [her] ethical duties as a lawyer" may be discussed in closed session. N.J.S.A. 10:4-12b(7). To invoke this exception, the public body must actually be discussing its strategy, the position it will take, the strengths and weaknesses of those positions, and possible settlement. This exception cannot be used as a pretext to discuss aspects of the matter not directly related to the litigation itself. See Atty. Gen. Formal Op. 1976, No. 30; Houman v. Mayor and Council of Borough of Pompton Lakes, 155 N.J. Super. 129, 144-45, 382 A.2d 413 (Law Div. 1977); Caldwell v. Lambrou, 161 N.J. Super. 284, 288-89, 391 A.2d 590 (Law Div. 1978).
An executive session may be conducted in order to discuss proposed, pending or current litigation. N.Y. Pub. Off. Law § 105(1)(d) (McKinney 1988). Communications subject to the attorney-client privilege are exempt from the provisions of the OML. N.Y. Pub. Off. Law § 108(3) (McKinney 1996). See Matter of Brown v. Feehan, 125 A.D.3d 1499, 1501, 3 N.Y.S.3d 868, 870 (4th Dep’t 2015) (finding that the attorney-client exemption applied and that the court properly determined that there was no violation of the Open Meetings Law); Gernatt Asphalt Products v. Sardinia, 87 N.Y.2d 668, 664 N.E.2d 1226, 642 N.Y.S.2d 664 (1996), (executive session permitted to obtain legal opinion from town’s counsel about adoption of proposed amendments and to discuss pending litigation); McGovern v. Tatten, 213 A.D.2d 778, 623 N.Y.S.2d 370 (3d Dep’t 1995) (executive session to discuss abandonment of road was in violation of OML); Shibley v. Miller, 212 A.D.2d 799, 623 N.Y.S.2d 283 (2d Dep’t 1995) (executive session to obtain advice of counsel does not require vacatur of subsequent determination); Roberts v. Town Bd. of Carmel, 207 A.D.2d 404, 615 N.Y.S.2d 725 (2d Dep’t 1994) (discussion of redesign work pursuant to a consent order was under the “litigation” category); Young v. Bd. of Appeals, 194 A.D.2d 796, 599 N.Y.S.2d 632 (2d Dep’t 1993) (confidential communications between board and counsel were exempt from OML); Weatherwax v. Town of Stony Point, 97 A.D.2d 840, 468 N.Y.S.2d 914 (2d Dep’t 1983) (belief that action taken at a meeting “would almost certainly lead to litigation” cannot justify an executive session); Matter of Concerned Citizens to Review the Jefferson Mall v. Town Bd., 83 A.D.2d 612, 441 N.Y.S.2d 292 (2d Dep’t 1981), appeal dismissed, 54 N.Y.2d 957, 429 N.E.2d 833, 445 N.Y.S.2d 154 (1981) (the authorization to hold an executive session to discuss litigation should not be used to shield private discussions between a public body and a private litigant; the purpose of the exception is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary); Kloepfer v. Comm’r of Educ., 82 A.D.2d 974, 440 N.Y.S.2d 785 (3d Dep’t 1981), aff’d, 56 N.Y.2d 687, 436 N.E.2d 1334, 451 N.Y.S.2d 732 (1982) (executive session held to discuss authorization of an appeal to commissioner was not in violation of the OML, but executive session should first be authorized at an open meeting); Cioci v. Mondello, No. 28261/90, (Sup. Ct., Nassau Cty., March 18, 1991) (discussions with the County Attorney relating to pending litigation are exempt from OML, however, the presence of a third party represents a waiver of the privilege); Previdi v. Hirsch, 138 Misc.2d 436, 524 N.Y.S.2d 643 (Sup. Ct. 1988) (executive session improper where school board failed to identify with particularity the current litigation and counsel for litigant suing board was present); Lakeville Journal v. Village Bd., No. 3769/85 (Sup. Ct., Dutchess Cty., Dec. 6, 1985) (the litigation exception does not permit confidential discussion simply because the village attorney is present and legal advice is sought); Kopald v. Planning Bd., No. 5001, 1983 (Sup. Ct., Orange Cty., Feb. 24, 1984) (“potential” litigation is not an appropriate topic for discussion in executive session; Daily Gazette Co. v. Town Bd., 111 Misc.2d 303, 444 N.Y.S.2d 44 (Sup. Ct. 1981) (while discussion of “proposed” litigation was an appropriate matter for inclusion on the agenda of an executive session, the closed session was not properly convened when the public body failed to identify with particularity the proposed litigation to be discussed); Smothers v. Bd. of Educ., No. 11050/81 (Sup. Ct., Westchester Cty., Aug. 26, 1981) (executive session held to discuss “threatened” litigation with counsel was not in violation of the OML); Brander v. Town of Warren Town Bd., 18 Misc.3d 477, 847 N.Y.S.2d 450 (Sup. Ct. 2007) (held, general discussion of negotiations with an attorney are not a valid basis for an executive session).
A public body may close a session to consult with an attorney with regard to the handling or settlement of a claim, judicial action or administrative procedure. G.S. § 143-318.18(3). The terms of a settlement (other than of a medical malpractice case) approved or considered in a closed session must be reported and entered into the minutes “as soon as possible within a reasonable time after the settlement is concluded.” The statute explicitly states that nothing in this section shall be construed to permit a public body to close a session simply because its attorney is present. The law also requires that every motion to close a meeting under this provision must reference the lawsuit and the parties about which or whom the public body expects to receive advice.
The issue of closed sessions to consult with legal counsel was at the heart of a North Carolina Court of Appeals case. Multimedia Pub. of North Carolina Inc. v. Henderson County, 136 N.C. App. 567, 525 S.E.2d 786 (2000). A county commission met in closed session with their attorney with regard to a proposed moratorium on construction of new racetracks; the commission came out of closed session and voted, without discussion, to pass the moratorium. The local newspaper objected to the closed session and requested copies of the minutes from the session. The trial court found nothing improper about the closed session and did not even address the paper’s request for minutes. The court found that the attorney-client exemption was narrower than the commission urged and broader than the newspaper urged. Additionally, the court wrote that “notwithstanding the countervailing policy favoring confidentiality between attorneys and clients,” exemptions to the Open Meetings Law must be construed narrowly. The “legislature has explicitly forbidden general policy matters from being discussed during closed sessions,” the court wrote, and quoting an Arizona case, “‘public bodies cannot simply delegate responsibilities to attorneys and then cloak negotiations and closed sessions in secrecy by having attorneys present.’“ The only specific guidance the opinion gave was by way of example: “Thus, discussions regarding the drafting, phrasing, scope, and meaning of proposed enactments would be permissible during a closed session. Discussions regarding their constitutionality and possible legal challenges would likewise be so included. But as soon as discussions move beyond legal technicalities and into the propriety and merits of proposed enactments, the legal justification for closing the session ends.”
Most importantly, the court addresses burden of proof. Recognizing that “requiring a plaintiff to plead and prove specific facts regarding alleged violations that are taking place in secret is a circular impossibility,” the court placed the burden on the public body to establish the validity of the closure. The court wrote that in meeting its burden, “government bodies may not simply treat the words ‘attorney-client privilege’ or ‘legal advice’ as some talisman, the mere utterance of which magically casts a spell of secrecy over their meetings. After all, ‘the incantation of an attorney-client rationale is not an abracadabra to which this Court must defer judgment.’“ The public body must come forward with “objective indicia” that the exception is justified, not merely rely on assertions by the public body or its lawyers.
On remand, the trial court examined the minutes from the meeting and found that it had been improperly closed. After remand and a second appeal, the Court of Appeals found the minutes were sufficient.
The portion of a meeting during which an attorney consultation (i.e., any discussion between a governing body and its attorney in instances in which the governing body seeks or receives the attorney’s advice regarding and in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings or concerning pending civil or criminal litigation or pending adversarial administrative proceedings) occurs may be closed. N.D.C.C. § 44-04-19.1(2) and (5).
A public body's conferences with its attorney are open except that a public body may convene an executive session to confer with its attorney concerning disputes involving the public body that are the subject of pending or imminent court action. Ohio Rev. Code § 121.22(G)(3); see Cincinnati Enquirer v. Hamilton Cty. Comm'rs, No. C-010605, 2002 WL 727023 (Hamilton Apr. 26, 2002) (finding it was proper for county to conduct executive session to discuss the hiring of legal counsel for imminent litigation).
A public body may have confidential meetings with its attorney to discuss “a pending investigation, claim or action” when disclosure would seriously impair the proceeding, but any vote to file suit must be cast in public. Oklahoma Ass’n of Municipal Attorneys v. State, ex rel. Derryberry, 1978 OK 59, 577 P.2d 1310; Berry v. Board of Governors of Registered Dentists, 1980 OK 45, 611 P.2d 628; 25 O.S.§ 307. A “pending” claim can refer to litigation or an administrative action while either exists or is merely potential or anticipated. 2005 OK AG 29.
Section 551.071 provides that a private consultation between a governmental body and its attorney are not permitted except in those instances in which the body seeks the attorney's advice with respect to pending or contemplated litigation, settlement offers, or matters where the duty of the attorney to the body, pursuant to the Texas Disciplinary Rules of Professional Conduct, clearly conflicts with the Open Meetings Act. See Gonzalez v. Brazos River Harbor Navigations Dist., No. 14-99-00272-CV, 2000 WL 1201899, at *7 (Tex. App.—Houston [14th Dist.] Aug. 24, 2000, pet. denied) (holding that Section 551.071 permits closed discussions with attorney regarding legal matters for which attorney has ethical duty of confidentiality). However, "[g]eneral discussion of policy, unrelated to legal matters, is not permitted under this . . . exception merely because an attorney is present." Finlan, 888 F. Supp. at 782 n.9 (citing Op. Tex. Att’y Gen. No. JM-100 (1983)); Killam Ranch Props., Ltd. v. Webb County, 376 S.W.3d 146, 157(Tex. App.—San Antonio 2012 (“under this provision the governmental body may not discuss the merits of a proposed contract, financial considerations, or other non-legal matters related to the contract merely because its attorney is present.”). In addition, the Attorney General has held that an administrative agency may conduct proceedings involving disputed claims of privilege or confidentiality of documents in camera in contested administrative proceedings. Op. Tex. Att’y Gen. No. JM-645, at 2927 (1987). The Attorney General, basing its decision on an exception to the Act in the Administrative Procedure and Texas Register Act, Tex. Rev. Civ. Stat. art. 6252-13a, advised that the contested case procedural requirements in the Administrative Procedure and Texas Register Act "creates an exception to the Open Meetings Act with regard to contested cases." Id.
Strategy sessions concerning pending or reasonably imminent litigation are exempt from the open meetings requirement. Utah Code § 52-4-205(1)(c).
In Kearns-Tribune Corp. v. Salt Lake County Comm’n, 2001 UT 55, ¶ 29, 28 P.3d 686, the Utah Supreme Court determined that county boundary commission proceedings held to discuss annexation disputes constituted litigation under the litigation exception to the Open Meetings Act, thereby justifying a closed meeting.
Attorney work product involved in litigation involving public entities probably would be exempt from disclosure under the judicially created work-product exemption and under the Utah Rules of Civil Procedure. See also Utah Code § 63G-2-305(18) (protecting records disclosing attorney’s work product).
Discussions with legal counsel, staff or consultants pertaining to actual or probable litigation may be closed. Va. Code Ann. § 2.2-3711.A.7.
Discussions with legal counsel employed or retained by a public body requiring legal advice of counsel may be closed. Va. Code Ann. § 2.2-3711.A.8.
An executive session may be held to discuss certain matters with legal counsel representing the agency when public knowledge of the discussion is likely to result in “adverse legal or financial consequence” to the agency. RCW 42.30.110(1)(i). Matters that may, for this reason, be discussed in closed session are those relating to agency enforcement actions and to present or potential litigation to which the agency, the governing body or a member acting in an official capacity is, or is likely to become, a party.
The Open Meetings Act does not specifically exempt discussions of pending litigation, or any other attorney-client communications:
(11) Nothing in this article permits a public agency to close a meeting that otherwise would be open, merely because an agency attorney is a participant. If the public agency has approved or considered a settlement in closed session, and the terms of the settlement allow disclosure, the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded.
W. Va. Code § 6-9A-4(b)(11). It is mandatory that non-confidential settlements must be attached to the minutes of the meeting “within in a reasonable time” and that the failure to do so, or to disclose the settlement in a different manner violates the clear language of the sub-section. Capriotti v. Jefferson Cnty. Planning Comm’n, No. 13-1243 (W. Va. Supreme Court, February 26, 2015) (memorandum decision). The Court explained:
This statutory language very simply and explicitly requires that “the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded.” This statutory language does not contemplate the disclosure of settlement terms in any other type of document, be it a meeting agenda, press release, or compilation of papers considered at the disclosure meeting. Rather, the statute expressly requires that the public body “enter [the settlement terms] into its minutes.”
Id. (emphasis in original).
West Virginia. Code section 6-9A-4(b)(12) provides:
To discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one [§§ 29B-1-1 et seq.], chapter twenty-nine-b of this code.
Exemption 12 would appear to exclude discussions of attorney work product and attorney-client communications at meetings because they fall within exemption 8 of the West Virginia FOIA, as interpreted in Daily Gazette Co. Inc. v. W. Va. Development Office, 198 W. Va. 563, 482 S.E.2d 180 (1996) (“Gazette I”).