Kentucky Advisory Opinions January 27, 1997: OAG 97-001 (January 27, 1997)

OAG 97-001.

I. Introduction

We have been asked to opine on whether bodies subject to the Open Meetings Act may employ the attorney-client privilege as a basis to go into executive (closed, non-public) session. This issue was initially decided by this Office in 96-OMD-191 which answered that issue in the affirmative. The reasoning of 96-OMD-191 was premised upon KRS 61.810(1)(k) which provides that a body may go into executive session when the meeting is one which " . . . federal or state law require[s] to be conducted in privacy." Id. [Note: The holding also relied heavily upon this Office's prior rulings which hold that the attorney-client privilege may be used to withhold public documents from disclosure under the Open Records Act. Those decisions involve a similar, but not identical, version of the Open Records Act, KRS 61.878(1)(k). This application will be discussed more thoroughly herein at footnote 1].

For the reasons stated in the subsequent analysis, we believe the better view is that the attorney-client privilege is not a viable exemption to the Open Meetings Act except as attorney- client discussions involve "proposed or pending litigation against or on behalf of [a] public agency." Therefore, we now answer the question in the negative. KRS 61.810(1)(c). 96-OMD-191, by this Opinion, has no precedential value, and should not be relied upon by bodies subject to the Open Meetings Act.

This opinion is rendered pursuant to KRS 15.025(4). It is true this Office rarely renders opinions under this statute. However, the circumstances presented by this request warrant the finding of significant public interest of a Commonwealth-wide nature for three important reasons.

First, the Open Meetings Act, with its sister, the Open Records Act, is clear evidence that, in Kentucky, the business of the people is open to the scrutiny of the people. Here, 96-OMD-191 creates another exemption to that vital public policy. Since the press often cover public meetings to disseminate and inform government activities to the people, we deem it appropriate to respond to an opinion request on a new method for precluding public attendance from otherwise open meetings requested by the trade association of the press. See, Ky. Const. 8 (free press guarantee).

Second, this issue has arisen as a result of the Office of the Attorney General performing one of its more significant functions: the first level of appellate review of agency decisions to exclude the public from an open meeting. See, KRS 61.846(2) and (3). Unlike the Courts of Justice of this Commonwealth, the Office of the Attorney General is not empowered to reconsider its decisions. 40 KAR 1:030(4). Neither may the Attorney General extend the deadline of 10 days in which a decision must be made - irrespective of the novelty or complexity of the issue. KRS 61.846(2). Compare, KRS 61.880(2)(a) and (b) which provide 20 days to render an open records decision which can, "in unusual circumstances," be extended an additional 30 days. It is our inability to reconsider which makes an Opinion on this issue of vital importance.

It is clear that 96-OMD-191 extends the attorney-client privilege beyond that allowed by the Act. Yet, we, by our own regulation and the practical effect of the review process created by the Legislature in KRS 61.846, are unable to reconsider an open meetings decision. So, despite our inability to reverse 96-OMD-191 in this context or effect the merits of that decision, we, with the tool of an Opinion of the Attorney General, can admit we were wrong so that others will correctly apply the law in the future. We, as a matter of policy, cannot permit an incorrect interpretation of a new issue of law by this Office to stand; particularly where this Office's opinions in a given area of law are relied upon as authoritative precedent by the public. Application of the Open Meetings law is plainly one of those areas.

We use the tools available to us. It is critical to the orderly operation of the Act that all persons and public bodies be able to correctly apply the Act as it relates to claims of attorney- client privilege. It would not serve the public interest for this Office to delay this opinion in hopes of a future case presenting this issue. To not so act, will likely lead to incorrect results and simply lead to unnecessary litigation with attendant expenses; or, worse, incorrect decisions which are not corrected by an appeal. For these reasons, we depart from our general rule to not render advisory opinions on the application of the Open Meetings Act or the Open Records Act.

II. Kentucky Open Meetings Act

The Kentucky Open Meetings Act is designed, simply, to insure public access to the meetings of public bodies and agencies. KRS 61.800 plainly states this policy:

The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed .

(Emphasis added.) KRS 61.810(1)(a) - (1) sets forth a limited number of specific exceptions in which executive sessions are permitted. The exceptions relevant to our analysis are:

(c) Discussions of proposed or pending litigation against or on behalf of the public agency;

(k) Meetings which federal or state law specifically require to be conducted in privacy; and

(l) Meetings which the Constitution provides shall be held in secret.

Exception (k) does not permit an executive session premised on the attorney-client privilege. Neither state nor federal law requires meetings between attorneys and clients to be conducted in private. Although it is true that meetings are conducted in this fashion to avoid waiving the attorney client privilege, there is still no mandatory requirement that this be done.

The elements of the attorney-client privilege are well known:

A client has a privilege to refuse to disclose . . . a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client . . . .

KRE 503(b), codified pursuant to 1992 Ky. Acts ch. 324, sec. 34. There is nothing in the privi-lege which requires that a meeting of a public board or agency be conducted in private. This may well be the effect for the privilege to have any efficacy, but there is no requirement. Thus, subpart (k) does not allow for an executive session on the basis of attorney-client privilege. The analysis is that simple. (fn1)

Exception (c) of the Act allows closed sessions for discussions with an agency attorney where the public body engages in "discussions of proposed or pending litigation against or on behalf of the public agency." Several Kentucky cases shed light on the "pending litigation" exception to the Open Meetings Law. In Jefferson County Board of Education v. The Courier Journal , Ky. App., 551 S.W.2d 25 (1977), newspapers brought an action against a county board of education alleging that the board had violated the Open Meetings Law by holding a closed session. Id . at 27. As part of its analysis, the Court examined the "pending litigation" exception to the Open Meetings Law and stated:

There is no requirement that the corporate appellant and its govern-ing body give notice of an executive session in order to confer with their attorneys concerning proposed or pending litigation. This is expressly excluded by the terms of the statute, and moreover, this involves the attorney-client relationship. However, nothing said herein should be construed as to mean that anytime the public agency has its attorney present that it can go into closed session .

Id . at 28 (emphasis added). This case indicates that more is required than the mere presence of the attorney for the agency to conduct a closed session. That "more," we believe, is the reality of proposed or pending litigation.

In another case involving a newspaper challenge, the Kentucky Supreme Court further fleshed out the "pending litigation" exception. In Fiscal Court v. The Courier Journal and Louisville Times Co ., Ky., 554 S.W.2d 72 (1977), the Jefferson Circuit Court declared illegal a closed meeting of the Jefferson Fiscal Court with the Jefferson County Attorney. Id . at 73. At that meeting, the parties discussed a draft of a proposed county ordinance prepared by the County Attorney which would permit electioneering near the polls. At this meeting, the Fiscal Court also discussed an implied threat of legal action from the League of Women Voters. Id . The Court held that to the extent the meeting dealt with the implied threat of legal action by the League of Women Voters, the meeting was properly conducted in a closed session. Id. The Court did not explore how direct or remote the litigation threat must be before a closed session is proper.

Although no cases from our appellate courts explore how near the threat of litigation must be, we have issued opinions relating to this subject which support a narrow construction of the "pending litigation" exception. In OAG 91-141, we stated:

KRS 61.810[(1)(c)] . . . is intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to the litigation. OAG 78-227. Further, we have indicated that the terms `proposed or pending' should not be broadly construed to authorize a closed session when the possibility of litigation is remote . In OAG 84-240 we addressed this concern, noting that where there had been `direct suggestions of litigation' conditioned on the occurrence or nonoccurrence of a specific event, the possibility of litigation was sufficiently great to warrant the agency's invocation of KRS 61.810[(1)(c)]. . . Mere speculation about the possibility of litigation at some point in the future does not trigger the exception codified at KRS 61.810[(1)(c)] .

Id . at 2 (emphasis added). See OAG 93-OMD-119 (stating that litigation involving the agency must be more than a remote possibility in order to proceed in closed session.) (fn2)

III. Statutory Construction

Unlike some other states which do not list any exceptions in their open meetings statutes, Kentucky has several. Under statutory construction principles, the listing of enumerated exclusions in a statute generally implies that there should be no other exclusions read into the statute. See , Steinfeld v. Jefferson County Fiscal Court , 229 S.W.2d 319, 320-21 (Ky. 1950) (outlining the doctrine expressio unius est exclusio alterius , meaning the express mention of one thing implies the exclusion of another different thing); and Smith v. Wedding , 303 S.W.2d 322, 323 (Ky. 1957) (holding that it is a primary rule of construction that enumeration of particular things excludes ideas of something else not mentioned.) In the text of the Open Meetings Act, the statute sets forth enumerated exceptions to the open meetings requirement. This implies that the Legislature did not intend more exceptions to be created by the Attorney General or the Court.

An interpretation "implying" another exception would not be a proper exercise in statutory construction. Particularly where the Legislature did in fact provide for confidential attorney communications in the context of proposed or pending litigation, but did not expand the exception to non-litigation related legal advice. The General Assembly, usually populated with attorneys and staffed by attorneys, certainly was aware of the myriad forms and contexts legal advice and representation is provided to clients. The General Assembly's silence on exempting non-litigation communications from the Act, we think, is significant.

IV. Other State Approaches

Other states have also grappled with the attorney-client privilege in conjunction with state open meeting laws. The approaches adopted by these states are somewhat dependent on the language of their open meetings statutes. Some, like Kentucky, have enumerated exceptions to the open meetings requirement which include an exception for "pending litigation." Other state statutes are silent on this point, and some courts have read into these statutes an implied exception for advice from an attorney to the agency. The basis for the implied exception varies from a separation of powers analysis to statutory construction. Lastly, some states have both a "pending litigation" and a "legal advice" exception in their statutes. See Jay M. Zitter, Annotation, Attorney-Client Exception under State Law Making Proceedings by Public Bodies Open to the Public , 34 A.L.R. 5th (1995). These different approaches will be discussed below.

A. Separation of powers implications.

In their decisions, some of the courts have examined constitutional principles of separation of powers. This implicates KRS 61.810(1)(l) - the exception for meetings that the Constitution provides shall be held in secret. The separation of powers analysis results from the conflict between judicial rules governing confidential attorney-client communications and the open meetings statutes. There is necessarily a tension between these two branches of government - one branch vying for open government and the other branch attempting to protect the confidentiality of attorney-client communications.

One case has specifically addressed the Constitutional aspect of this issue as applied to the Tennessee Constitution. In a lengthy opinion, the Supreme Court of Tennessee analyzed its open meetings law with respect to claims of attorney-client privilege. In Smith County Education Ass'n v. Anderson , 676 S.W.2d 328 (Tenn. 1984), an association sued the board for violations of the Tennessee Open Meetings Law, T.C.A. 8-44-102(a). The Court of Appeals held that the Board had violated the law when it had met privately with its attorney during the course of pending litigation. Id . at 333. Tennessee's statute provided no exception for meetings between a public body and its attorney. However, it did state that meetings would be open at all times except as provided by the Constitution . Id. at 331-32.

The Tennessee court, in essence, created a "pending litigation" exception for meetings between an attorney and a public agency. Id. at 334. The Court first noted that there was a separation of powers conflict in the attorney-client privilege and the Open Meetings Act. This conflict exists because the ethics rules for attorneys provide that clients must feel free to discuss whatever they wish with their lawyer, but the open meetings statutes thwart this purpose by making the discussions public. The court stated that the Tennessee Constitution requires that there must be a separation of powers between the judicial branch of government and the legislative branch, and the legislature cannot enact laws that impair an attorney's ability to fulfill his ethical duties as an officer of the Court. Id. Based on this reasoning, the Court resolved the tension by holding that applying the open meetings act to discussions between public agencies and their attorneys regarding pending litigation violated the Tennessee Constitution's separation of powers provisions. Therefore, as previously noted, the Court read into the statute an exception to the Open Meetings Law for discussions with a lawyer regarding pending litigation:

The exception is limited to meetings in which discussion of present and pending litigation takes place. Clients may provide counsel with facts and information regarding the lawsuit and counsel may advise them about the legal ramifications of those facts and the information given to him. However, once any discussion, whatsoever, begins among the members of the public body regarding what action to take based upon advice from counsel, whether it be settlement or otherwise, such discussion shall be open to the public and failure to do so shall constitute a clear violation of the Open Meetings Act.

Id. at 334 (emphasis supplied).

One could make the same separation of powers argument in this case, but we are not persuaded by it. Although the Kentucky statute contains a similar "constitutional exception," the Tennessee open meetings statute differs significantly from Kentucky's statute in important respects. The Tennessee statute did not contain any exceptions to the open meetings require- ment. Kentucky's statute contains an exception for litigation. Further, the Tennessee Supreme Court refused to broaden the exception beyond the advice of counsel on pending litigation matters. In our opinion, subpart (l) does not allow for an attorney-client privilege exception. (fn3)

B. Statutes containing both "pending litigation" and "legal advice" exceptions

Unlike Kentucky, some states include an exception in their open meetings statutes for "legal advice." In City of Prescott v. Town of Chino Valley , 803 P.2d 891 (Ariz. 1990), the city brought an action challenging the adjoining town's imposition of a transaction privilege tax upon the city's operation of a water pipeline. The plaintiffs alleged an open meeting violation when the town council had closed a meeting to meet with its attorney about a proposed tax ordinance. Id . at 893. The Arizona open meetings statute provided seven specific exceptions to the policy of open meetings, including an exception for discussion or consultation for legal advice with the attorney for the public body and discussion with attorneys regarding pending litigation. This statute thus contained both a "legal advice" and a "pending litigation" exception. The Court held that a governmental entity could meet in executive session with its attorney to receive legal advice, stating:

A public body may not hold an executive session merely because its attorney is present if the discussion is not for legal advice. . .In short, members of a public body may meet in executive session for discussion with attorneys regarding the legal propriety, phrasing, drafting, and validity of proposed legislation, including its mean-ings, legal scope, possible legal challenges, and counsels' views regarding constitutionality, construction, and the like. However, once the members of the public body commence any discussion regarding the merits of enacting the legislation or what action to take based upon the attorney's advice, the discussion moves beyond the realm of legal advice and must be open to the public.

Id. at 896.

96-OMD-191 appears to adopt this "legal advice" exception to the Open Meetings Law. This is incorrect, due to the fact that this would call for a significant broadening of the Act. Unlike the Arizona statute, Kentucky's Open Meetings Law does not contain this "legal advice" exception, and we are not empowered to create one by fiat. See, Northwest Publications, Inc. v. City of Saint Paul , 435 N.W.2d 64, 67 (1989)(holding that the privilege applies when a government body seeks legal advice on litigation strategy but is not available when a governing body seeks instead to discuss the strengths and weaknesses of the underlying proposed enactment which might give rise to litigation.)

V. Conclusion

For this Office to adopt an exception to the Open Meetings Act on the basis of attorney-client privilege would be an improper usurpation of legislative power. Ky. Const. 27. There are States which have adopted exceptions to allow for executive sessions to receive confidential attorney communications irrespective of litigation - threatened or otherwise. Kentucky, however, is not one of them. It is the Opinion of the Attorney General that the decision to adopt such an exception is for the Legislature. 96-OMD-191, although not reversed or overruled per se , is of no precedential value; and, the issue of the applicability of the attorney-client privilege to the Open Meetings Act will be resolved by this Office under the rule announced by this Opinion. (fn4)

Albert B. Chandler, III

Attorney General

Scott White

Assistant Deputy Attorney General

1 Unlike the analogous provision in the Open Meetings Act, KRS 61.878(1)(k) of the Open Records Act does operate to exclude public records within the scope of the attorney-client privilege from disclosure. That statute permits non-disclosure of "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly ." Id. Since the General Assembly codified the attorney-client privilege in 1992, it has made records and information within the scope of that privilege "confidential" and thereby immune from disclosure. See, 94-ORD-88. For this reason, our reliance upon 94-ORD- 88 in 96-OMD-191 was misplaced; and, the reason this Opinion does not effect in any manner the rationale and viability of 94-ORD-88 and its progeny.

2 This reading finds support in the Legislature's mandate to "strictly construe" the exceptions, including "proposed or pending" litigation. See, KRS 61.800.

3 It is also critical to note that the privilege belongs to the client , not the attorney. KRE 503(b) "A client has a privilege . . . ." We believe it is for the Legislature, as a matter of policy, to decide under what circumstances the client - public and governmental bodies - is entitled to claim this privilege since these bodies perform the public's business. Clearly, the Legislature believes that in the realm of litigation, where knowledge of the adversary's strategy would create an unfair advantage, that the privilege should be available.

4 Of course, this Opinion cannot be applied retroactively to the case between the Kentucky New Era and the Christian County School Board (the parties to 96-OMD-191). The decision on the merits rendered by 96-OMD-191 remains effective, unless the matter was appealed to Circuit Court. However, to insure that the Act will be applied correctly prospectively , by those parties, a copy of this Opinion is being sent to both.