What the Glenpool City Council will discuss with its attorney behind closed doors Tuesday night is being kept secret from the town's residents in an apparent violation of the state Open Meeting Act.
Rather than stating the specific investigation, claim or action to be discussed, the agenda provides only the specific statutory authorization for the proposed executive session.
But the Open Meeting Act states: "If a public body proposes to conduct an executive session, the agenda shall:
- Contain sufficient information for the public to ascertain that an executive session will be proposed;
- Identify the items of business and purposes of the executive session; and
- State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
Because government lawyers contend that the Open Meeting Act provision allowing public bodies to discuss confidential communications with their attorneys is subject to the statute providing for the attorney-client privilege.
Are they correct? Does attorney-client privilege simply trump the agenda requirements under the Open Meeting Act?
No, say two lawyers who have successfully litigated open government lawsuits in the state.
The specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act, they said.
"The identification of the claim is extremely important. Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.
Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.
"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.
Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said Stillwater attorney Doug Wilson.
In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, he pointed out.
That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))
Attorneys for public bodies "should be able to do the exact same thing when identifying the items of business and purposes of a proposed executive session," said Wilson, a former member of the FOI Oklahoma Inc. board of directors.
Wilson explained that Oklahoma's attorney-client privilege is an evidentiary rule "simply inapplicable in the determination of whether or not a public body may lawfully enter into an executive session."
"The issue to be determined is not a rule of evidence. It is a matter of Open Meeting Act procedure," he said.
"While the two statutes (12 O.S. § 2502(D)(7) and 25 O.S. § 307(B)(4)) have similar wording, they clearly apply to two different realities. The Oklahoma Evidence Code is expressly limited in scope to 'criminal and civil proceedings, conducted by or under the supervision of a court, in which evidence is produced.' This is not the context under which an agenda is prepared to give proper notice of an executive session," said Wilson.
"It is simply erroneous to equate the statutory prerequisites for a public body to enter into an executive session with a rule of evidence which entitles a party to refuse to disclose and to prevent others from disclosing evidence otherwise relevant to the case.
"The procedures that must be followed to hold an executive session are different from the circumstances under which a 'public body'-client may refuse to disclose and prevent others from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the 'public body'-client," Wilson noted.
"The first has to do with the Open Meeting Act and is applicable in the conduct of public business," he explained. "The second has to do with the Oklahoma Evidence Code and is applicable only in the context of litigation."
Wilson noted that when the Legislature enacted the Open Meeting Act, it failed to allow executive sessions between public bodies and their attorneys. A 1977 Oklahoma attorney general opinion found that with the passage of the Open Meeting Act, public bodies could no longer privately confer with their attorneys because none of the Open Meeting Act provisions permitted such an executive session. (1977 OK AG 222)
Enactment of the Open Meeting Act had effectively negated the attorney-client privilege for public bodies under the state Evidence Code, Wilson said.
Government attorneys petitioned the Oklahoma Supreme Court. In 1978, Wilson explained, the court "reassured public bodies that they could still meet in confidence with their attorneys, but in order to reach this conclusion, the Court was required to say that the Open Meeting Act permitted such executive sessions (even though the OMA did not expressly permit such executive sessions)." (See Oklahoma Ass'n of Municipal Attys. v. State, 1978 OK 59)
In 1985, the Legislature solved the problem by amending the Open Meeting Act to allow executive sessions for the purpose of "confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest." (OKLA. STAT. tit. 25, § 307(B)(4))
The Legislature treated it the same as the other topics for which a public body may meet in executive session, placing it under the requirements for all executive sessions.
"Ever since the Legislature amended the OMA in 1985 to allow executive sessions for confidential communications between a public body and its attorney, reference to the Evidence Code is no longer necessary to determine the authority for, and procedures to be followed in, convening an executive session," said Wilson. ""Now, it is strictly a matter of OMA procedure.
"Reference to Oklahoma Ass'n of Municipal Attys. v. State as support for how to interpret the current statutory framework is misguided and unworkable," Wilson said, "because the effective negation of the attorney-client privilege for public bodies created by the enactment of the Open Meeting Act without also permitting an executive session to be called for the purpose of confidential communications with counsel no longer exists.
"Since the 1985 amendment of the OMA, compliance or non-compliance with the Open Meeting Act is wholly determined by reference to the procedures set forth in the OMA, and those procedures require the public body to ’identify the items of business and purposes of the executive session,'" Wilson stressed.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
