TO: Mayor Hornaday / Homer City Council
FROM: Walt Wrede
DATE: August 19, 2005
SUBJECT: Confidential Documents / Attorney Client Privilege
The August 22 Regular Meeting Agenda contains an appeal from Mr. Frank Griswold of a determination that a recently written legal opinion cannot be provided to the public because the Council had not released it. The appeal appears under New Business on Page 157 of your packet. Memorandum 05-142 from the City Clerk is attached. The legal opinion in question is the one the City Attorney recently wrote regarding whether a rezone of one lot (Tract I-1, Tietjen Subdivision) from GCI to Rural Residential constituted spot zoning. You will recall that the Planning Commission recommended that this lot be rezoned and the Council concurred (Ordinance 05-33). A reconsideration was requested but the vote to reconsider failed.
I denied this request for two reasons. First, I did so out of respect for the long-standing tradition of not releasing legal opinions to the public unless the Council as a body, specifically votes to do so. That did not happen in this case. The City Attorney has stated on numerous occasions that the principle of attorney-client privilege clearly pertains to municipalities and that it is up to the Council whether it wants to make formal legal opinions public. There are some exceptions to this privilege under the law, but in the City Attorney’s opinion, this case is not one of them.
The second reason I denied this request is contained in HCC 1.80.040 (a). This section of the Code outlines the exceptions to Chapter 1.80. Chapter 1.80 discusses the Public Release of Records. HCC 1.80.040 (a) provides for an exception to the release of public records for City Attorney communications on matters where litigation may be pending. In my view, there is a reasonable chance that litigation may be pending in this case and I concluded that it was not in the public interest to compromise the City’s legal position or do something that might hinder the City Attorney if this case were to end up in court.
Both I and the City Attorney recognize that the City Council has legitimate reasons to release some legal opinions to the public. The public has a right to know why the Council makes the decisions that it does and releasing legal opinions can sometimes help in that regard. However, the commendable desire to keep the public informed and to provide for a transparent government must be balanced against the public’s expectation that the City will uphold and defend its zoning laws and zoning decisions and not waste money unnecessarily on legal matters. Whether to release this document is a judgment call for the Council. In this case, I believe that it is in the public interest to keep this document confidential and recommend that you do so.
If the Council chooses to release this document, I would recommend that it make a strong statement as part of the motion to release which affirms the principle of attorney client privilege and that no confidential legal opinions written at the request of the Council will be released to the public unless the Council formally does so by a vote of its members; subject to applicable law pertaining to the release of public documents.
In my view, and that of the City Attorney, the Council cannot concede this point. Doing so would set a very bad precedent, and would clearly not be in the interest of the City or the Public at large. Mr. Griswold’s premise, which he has stated to me on several occasions, is that attorney client privilege does not exist for the City unless the communications pertain to a lawsuit which has been filed and is active. This position has no basis in law. We very strongly disagree.
RECOMMENDATION: Deny Griswold’s Appeal pursuant to HCC 1.80.040(a)