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Get the attorney-client privilege exemption out of the FOIA

November 21, 2018

Michigan's Freedom of Information Act has long list of "exemptions from disclosure", one of which is:

Information or records subject to the attorney-client privilege.

There is no need for that exemption to be included. Courts don't need Michigan's FOIA to remind them of the existence of the attorney-client privilege:

It is the oldest privilege for confidential communication, dating back to the reign of Queen Elizabeth I in sixteenth-century England. (source)

Mentioning it in the FOIA only leads to its abuse. Cities like Lansing and East Lansing use it to justify denying public access to any written communication in which an attorney was involved. In July, Lansing used it to deny my request for a March 18, 2015 memo from then-city attorney Janene McIntyre to then-Mayor Virg Bernero. (story here) East Lansing recently used it to deny online magazine East Lansing Info's request for "a memo to City Council that indicates in what lawsuits the City is currently engaged." (story here) They use it to withhold information that might be embarrassing to city officials.

The original intent of the privilege was to allow accused criminals to speak frankly with their lawyer without fear that the lawyer could be compelled to reveal what was said.

The attorney-client privilege . . . is considered indispensable to the lawyer's function as advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. [It] is also considered necessary to the lawyer's function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure. (source)

The privilege applies strictly to communications from the client to the lawyer, which was not the case with either Lansing or East Lansing. And it is seldom permitted in government situations:

[T]here is a strongly held belief that government information should be open and available to the public and that such openness in government protects the people from a potentially corruptible government. Of course, government officials may always retain, at their own expense, a nongovernment lawyer and presumably any and all conversations would be entitled to the traditional attorney-client privilege. (source)

Although a claim of attorney-client privilege in response to a FOIA request is unlikely to stand up in court, there are reasons for city officials to claim it anyway. The requester can appeal to "the head of the public body", but if the appeal is upheld, the only resort is a lawsuit, and - chances are - the requester won't go that far. A lawsuit can cost a lot of money. It is true that, if the plaintiff wins, the court can order the city to reimburse him for his attorney fees and pay punitive damages of $1,000. But he may not win; it's a gamble not every FOIA requester is willing to take. And even if the plaintiff wins and the city is ordered to pay a few thousand dollars, it is not the city officials who pay the bill - it's the taxpayers.

One thing we can do to discourage public officials in Michigan from claiming attorney-client privilege is take the exemption out of the FOIA. It would in no way diminish the traditional recognition of the privilege, but would make it more difficult for government lawyers to argue it.

Send comments, questions, and tips to stevenrharry@gmail.com, or call or text me at 517-505-2696. If you'd like to be notified by email when I post a new story, let me know.

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