Public Access Counselor Informal Opinion on Commissioner's Committees and County Attorney's Assertion of Attorney-Client Privilege

Public Access Counselor Informal Opinion on Commissioner's Committees and County Attorney's Assertion of Attorney-Client Privilege 

The link below takes you to the Public Access Counselor's Webpage for his opinion. Below it is a text copy of Mr Britt's legal opinion. The PAC's three opinions are highlighted in red for the three questions asked.
The Nov 26 posting on this blog regarding the 5 vote rule for salary ordinances for council and Dec 3 posting of the County Attorney's response on the 5 vote rule were followed by another email from the County Attorney to the Commissioners, Council, Auditor, and Administrator. That last email prompted my questions for the Public Access Counselor. In it the county attorney said he was concerned that his first email had turned up on the Dearborn County blog. He stated that "Any communications including in person discussions, phone calls, emails, letters, etc. that I have with you are confidential and any you have with me are confidential pursuant to State statute (attorney-client privilege..." He further stated that "any disclosure of these communications are a violation of, and could constitute a waiver of, the attorney client privilege."
I had issues with that- one was that the email was sent to some people who were NOT his clients. The Commissioners are his clients. Secondly, I had obtained the first email by requesting it as a public record. My final issue is with the wording of his second email to his clients (and others) suggesting that they would be in violation of the attorney client privilege. The Public Access Counselor's response clarifies the attorney relationship with the client. The attorney must keep the client's confidentiality. The client can choose at any time to disclose the attorney's information and thus WAIVES confidentiality at that time.
One must wonder what is so secret about this particular  opinion? His email pretty much reiterates what he said at the public Council meeting when he was arguing for a simple majority vote vs. the 5 vote rule they had used at least since the 1980's. For a County that claims to pride itself on transparency, this secretive behavior seems to say otherwise.

http://www.in.gov/pac/informal/files/14-INF-33.pdf



December 18, 2014
Ms. Christine Mueller
Via email
Re: Informal Inquiry 14-INF-33

Dear Ms. Mueller,

This is in response to your informal inquiry regarding the Dearborn County Government.
Pursuant to Ind. Code § 5-14-4-10(5), I issue the following informal opinion in response
to your inquiry. My opinion is based on applicable provisions of the Open Door Law
(“ODL”), Ind. Code § 5-14-1.5-1 et seq. and the Access to Public Records Act
(“APRA”), Ind. Code § 5-14-3-1 et. seq.

BACKGROUND

Your informal inquiry regarding Dearborn County Government was threefold. First, you
inquired whether committees created by the Dearborn County Commissioners are subject
to the Open Door Law (ODL) and if so, whether the committee must publish notice of
meetings and keep official minutes.
Second, you inquired if an email communication containing legal advice, sent by the Commissioner’s attorney to additional parties, is subject to attorney-client privilege.
Finally, you inquired if it is illegal to publish information provided to the public, such as an email mentioned in your second inquiry.

DISCUSSION

It is the intent of the ODL that the official action of public agencies be conducted and
taken openly, unless otherwise expressly provided by statute, in order that the people may
be fully informed. See Ind. Code § 5-14-1.5-1. The term “public agency” is defined very
broadly by the ODL and encompasses many meanings, which are set forth at Ind. Code §
5-14-1.5-2(a).

Accordingly, except as provided in section 6.1 of the ODL, all meetings of the governing
bodies of public agencies must be open at all times for the purpose of permitting
members of the public to observe and record them. See Ind. Code § 5-14-1.5-3(a). The
ODL requires that public notice of the date, time, and place of any meetings, executive
sessions, or of any rescheduled or reconvened meeting, shall be given at least forty-eight hours (excluding Saturdays, Sundays, and legal holidays) before the meeting. See Ind.
Code § 5-14-1.5-5(a). The notice must be posted at the principal office of the agency, or
if no such office exists, at the place where the meeting is held. See Ind. Code § 5-14-1.5-
5(b)(1). While the governing body is required to provide notice to news media who have
requested notices nothing requires the governing body to publish the notice in a
newspaper. See Ind. Code § 5-14-1.5-5(b)(2).

The ODL requires the following memoranda to be kept: the date, time, and place of the
meeting; the members of the governing body recorded as either present or absent; the
general substance of all matters proposed, discussed, or decided; and a record of all votes
taken, by individual members, if there is no roll call. The memoranda are to be available
within a reasonable period of time after the meeting for the purpose of informing the
public of the governing body’s proceedings. There is no requirement in the ODL for a
public agency to keep minutes of its meeting. If minutes are kept, the minutes are to be
open for public inspection and copying. See Ind. Code § 5-14-1.5-4.

The ODL defines a public agency in Ind. Code § 5-14-1.5- (a) as
(1) Any board, commission, department, agency, authority, or other entity,
by whatever name designated, exercising a portion of the executive,
administrative, or legislative power of the state.
(2) Any county, township, School Corporation, city, town, political
subdivision, or other entity, by whatever name designated, exercising in a
limited geographical area the executive, administrative, or legislative
power of the state or a delegated local governmental power.

The ODL defines a governing body as:
 two (2) or more individuals who are:
(1) A public agency that:
(A) is a board, a commission, an authority, a council, a committee, a body,
or other entity; and (B) takes official action on public business
(2) The board, commission, council, or other body of a public agency
which takes official action upon public business. (3) Any committee
appointed directly by the governing body or its presiding officer to which
authority to take official action upon public business has been delegated.
See Ind. Code § 5-14-1.5-2 (b).

Therefore, I would need more information as to how the committees you reference are
established before making a conclusive determination.

 As for the email from the attorney you reference, Ind. Code § 34-46-3-1 provides a
statutory privilege regarding attorney and client communications. Indiana courts have
also recognized the confidentiality of such communications:

The privilege provides that when an attorney is consulted on business
within the scope of his profession, the communications on the subject
between him and his client should be treated as confidential. The privilege
applies to all communications to an attorney for the purpose of obtaining
professional legal advice or aid regarding the client's rights and liabilities.
Hueck v. State, 590 N.E.2d 581, 584 (Ind. Ct. App. 1992) (citations omitted).

Information subject to the attorney client privilege retains its privileged character until
the client has consented to its disclosure.” Mayberry v. State, 670 N.E.2d 1262, 1267
(Ind. 1996), citing Key v. State, 132 N.E.2d 143, 145 (Ind. 1956). Moreover, the Indiana
Court of Appeals has held that government agencies may rely on the attorney-client
privilege when they communicate with their attorneys on business within the scope of the
attorney’s profession. Board of Trustees of Public Employees Retirement Fund of Indiana
v. Morley, 580 N.E.2d 371 (Ind. Ct. App. 1991). ).

The privilege is asserted by the client and not the attorney, therefore a client may consent
to disclosure. If an email containing attorney-client communication was shared with you,
then the client has consented to waiving the privilege.

Similarly, without a court order stating otherwise, there would be no prohibition on
publication of any information received via a public records request.

Please do not hesitate to contact me with any questions.

Regards,
Luke H. Britt
Public Access Counselor