As its name implies, the Open Meeting Law creates a presumption that all meetings of governing bodies, including School Boards, must be open to the public. Although the attorney-client privilege permits closure of a meeting to discuss matters relating to pending or threatened litigation, the Minnesota Supreme Court recently held that this exception does not apply to every instance of threatened litigation, but only to situations when absolute confidence is required. Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002). This case has important implications for School Boards invoking the attorney-client privilege to close a public Board meeting.
The purpose of the Open Meeting Law, or Minn. Stat. 13D.01 et seq., is (a) to assure the public’s right to be informed, (b) to afford the public an opportunity to present its views to the board and (c) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning board decisions or to detect improper influences. While the law clearly favors open meetings, a School Board must close a meeting to the public for several reasons, including:
- to give preliminary consideration to allegations or charges against an employee, although the meeting must be open if the employee so requests;
- to evaluate an employee’s performance, although the meeting must be open if the employee so requests, and the board must identify the employee prior to closing the meeting;
- to discuss private information about a student; and
- to discuss various types of data including data relating to child abuse or neglect, data identifying victims or reporters of criminal sexual conduct, internal affairs data relating to allegations of law enforcement personnel misconduct, or data defined as non-public data under the Minnesota Government Data Practices Act.
Additionally, a School Board may choose to close a meeting for labor negotiations, for discussions of strategy prior to labor negotiations, or to discuss matters pertaining to pending or threatened litigation. A Board may not close a meeting merely to seek general legal advice basic to the deliberative process of any public body.
In Prior Lake American v. Mader, a local Prior Lake newspaper sued the mayor and city council members, alleging they violated the Open Meeting Law by invoking the attorney-client privilege exception to close a city council meeting. The City Council, during a regularly scheduled meeting, considered an application for a conditional use permit to allow a contractor to operate a gravel extraction site in the City of Prior Lake. Prior to the meeting, the contractor had sent a letter to the City which included the following statement, “Furthermore Ryan Contracting may seek legal action to ensure proper handling and compliance of this matter as well as legal action to recover lost revenues and/or costs incurred as a result of actions by the City of Prior Lake.” During the Council’s discussion of the permit application, one member, citing the above language, made a motion to recess into executive session to discuss what he saw as “a clear indication of a threat of litigation”. Five members of the council voted to close the meeting, and one member objected to the meeting’s closure.
The Minnesota Supreme Court, overturning an earlier decision by Court of Appeals, held that the City Council violated the Open Meeting Law when it closed the meeting because the attorney-client privilege exception does not apply unless absolute confidentiality is required. As the court noted, “to determine whether the attorney-client privilege exception applies, we balance the purposes served by the attorney-client privilege against those served by the Open Meeting Law.” In this case, the court determined that the litigation was only a threat, and information about the potential litigation was not necessary to the City Council’s determination of whether the developer should have received a permit. As a result, the court held that absolute confidentiality was not required and the City Council violated the Open Meeting Law when it retired to executive session.
This case has several important implications for School Boards considering closing a meeting based on the attorney-client privilege. First, the court emphasized that the privilege cannot be invoked every time litigation is threatened or pending, but only when threatened litigation gives rise to a need for absolute confidentiality in dealings with counsel. As the court noted, this means there is no bright line rule associated with when a governing body can invoke the attorney-client privilege. The determination of whether to close a meeting for discussions with counsel must be made on a case-by-case basis.
Second, the court cautioned against a public body closing a meeting to seek confidential advice of counsel during the course of its work on a public issue. As the court noted, invoking “the attorney-client privilege under such circumstances is fraught with peril” because it would be nearly impossible to review the decision to determine if it was arbitrary or capricious. For a majority of the court, the importance of the public’s right to be informed of all actions and deliberations affecting the public interest clearly outweighs the right to seek timely and confidential information from legal counsel.
Third, the court noted that the record of the City Council meeting lacked information about how, or whether, the private meeting would contribute to litigation strategy. City council members did not identify, even in general terms, the type of information whose public disclosure would damage the City’s position in future litigation with the contractor. Board Members considering closing a meeting should clearly establish on the record why they believe the meeting should be closed and generally identify the type of public disclosure that they believe would be harmful before taking action to close a meeting.
As a result of this decision, School Boards must use caution when invoking the attorney-client privilege to close a public meeting and carefully balance the need for confidential information against the right to public access.