Wednesday, May 11, 2011

OML lobbies for bill expanding attorney-client privilege for government, restricting public's right to know

The Oklahoma Municipal League wants city officials statewide to tell members of a House Conference Committee to vote for a bill expanding the attorney-client privilege for government and, consequently, limiting the public's right to know in those instances.

"Public sector elected officials and municipal staff should be provided with the legal counsel similar to that granted to private entitles," an OML official said in an action alert e-mailed to OML members on Wednesday.

The House Conference Committee on Public Safety & Judiciary is scheduled to vote on HB 1559 at its 9 a.m. Thursday meeting.

The Oklahoma Press Association opposes the amended bill.

"It basically wipes out the limited privilege for public bodies and replaces it with a multi-county grand jury privilege limitation," OPA Executive Vice President Mark Thomas told the FOI Oklahoma Blog on Wednesday afternoon.

Thomas had previously said of the bill:
Public bodies currently have a limited attorney-client privilege. We think that limitation should stay in place. This bill removes the limitation. Public bodies could hide anything behind their attorney-client privilege.

This bill puts attorneys in charge of everything. That is bad public policy, and we are opposed to it.
The Oklahoma Supreme Court has noted that under state law, the attorney-client privilege "is not generally available to" public bodies. (State ex rel. Cartwright v. Oklahoma Indus. Auth., 1981 OK 47, ¶ 32).

According to the statute: “There is no privilege ... As to a communication between a public officer or agency and its attorney unless the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.” (OKLA. STATE. tit. 12, § 2502 (D)(7))

Therefore, a public body or official could claim attorney-client privilege only if the document "concerns a pending investigation, claim or action."

Even then, the document could be kept confidential only if a court said disclosure would "seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest."

Thomas said HB 1559 eliminates the limiting language in the statute.

"Which means public bodies can hide behind conversations with their attorney over anything! The ONLY exception in the bill – public bodies can't use the privilege when called before a grand jury," Thomas said Wednesday.

The members of the House Conference Committee on Public Safety & Judiciary are

Jordan, Fred (405)557-7331
Martin, Steve (405)557-7402
McCullough, Mark (405)557-7414
Moore, Lewis (405)557-7400
Schwartz, Colby (405)557-7352
Roberts, Dustin (405)557-7366
Sullivan, Daniel (405)557-7361
Tibbs, Sue (405)557-7379
Wesselhoft, Paul (405)557-7343
and Democrats:
Morrissette, Richard (405)557-7404
Roan, Paul D. (405)557-7308
Sherrer, Ben (405)557-7364
Williams, Cory T. (405)557-7411

Thomas said he is calling on those committee members to stop the bill.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

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