MEMORANDUM 05-159
TO: Mayor Hornaday / Homer City Council
FROM: Walt Wrede, City Manager
DATE: October 4, 2005
SUBJECT: Frank Griswold’s Appeal / Release of Documents / Attorney Client Privilege
Frank Griswold has appealed a decision made by the City Manager to withhold certain documents he has requested. Attorney client privilege was cited as the primary reason for not releasing these documents. The Council is scheduled to hear this appeal at its regular meeting on October 10th, 2005. Copies of the withheld documents have been made available to the Council for its review by the City Clerk’s office.
This case has a very long history. I will attempt to summarize it. Mr. Griswold originally requested that the City schedule a time for him to come in and go through all of the City’s files to review any and all documents related to planning. He was informed that he could not do that for a variety of reasons and he was referred to relevant sections of the City Code and Public Records Regulations. After much debate, Mr. Griswold put his records request in writing, as required by the regulations, and amended it to “ all letters, faxes, and legal opinions between the City Attorney and the City regarding any planning issues and conflict of interest issues from 1990 through 2005.” Mr. Griswold was again referred to the City Code and to the relevant regulations and informed that he must narrow his scope, be much more specific, and pay for the production of these documents in advance because it was likely that this would require much more than five hours of staff time.
The City and Mr. Griswold then proceeded to go through several months of exchanging correspondences and amended requests for public documents. Mr. Griswold strongly resisted the notion that he could not just come in and rummage through the files. Upon questioning, he freely admitted that he was simply on a fishing expedition. He also believed that he should not have to pay in advance. The intent and interpretation of the City Code and the Public Records Regulations were a constant source of debate.
Mr. Griswold finally submitted a request for public records that was accepted under applicable law. The request was essentially for all documents contained in a legal file said to exist in the Planning Office and all documents regarding planning and conflict of interest issues from 1990 through the present. Mr. Griswold did not want to pay any money, so his request was for as much work as the City could do in five hours starting with the planning file and the year 1990 (in the archives). He stated that after five hours of work was complete, he would let us know if he wanted to file a new request for public records or continue to argue that he should not have to pay at all.
The City staff began the task of producing the requested documents shortly after the Request for Public Records was received and accepted pursuant to the requirements of the City Code. The staff was able to get through the planning file and the years 1990 and 1991 in the archives in five hours. My recollection is that most, if not all of the legal opinions in the archives were withheld by the Clerk’s office because they were not released to the public by the City Council. These documents fall under Attorney Client Privilege.
The planning file was reviewed by the City Manager. This file contained much more than formal legal opinions. It contained a wide variety of day to day correspondences between the City Attorney and the staff regarding a broad range of topics. The majority of these documents were withheld also for attorney client privilege reasons. These documents are in many ways the most sensitive because they contain frank and candid conversations about things like legal strategies in court cases and specific enforcement actions.
According to the City Attorney, Attorney Client privilege is a well established principle in common (case) law. The principle clearly applies to municipalities. It applies to any topics and attorney work products where confidentiality is needed to facilitate frank and candid communications in the rendition of legal services, including strategies, analyses, advice and other sensitive matters. Litigation is not a required element. Privileged communications fall within the HCC 1.80.040(j) exception to disclosure of city records because privileged documents are in the category that is required to be confidential as a matter of law. See Cool Homes v. Fairbanks North Star Borough, 860 P.2d 1248 (Alaska 1993) (open meetings act case applying similar statutory exception (matters required by law to be kept confidential) to allow executive session for attorney-client privileged communications.) Attorney client privilege is necessary so that the City attorney can speak candidly and frankly with his client and it better enables both to do their jobs. The Courts have given us some guidance as to what documents produced by the City Attorney must be public and which documents must remain confidential. We have tried our best to use this broad guidance and to balance the public right to open government with the City’s obligation to carryout and enforce its laws to the best of its ability.
Following are some examples of the types of documents the City could release and examples of those it would not release under Attorney Client Privilege. Please keep in mind that these are just examples for illustrative purposes only. The list is not exhaustive or all inclusive. All documents must be examined independently.
Attorney Client Privilege is a very valuable principle that is well established and must be upheld by the City Council. Reducing the scope of this privilege would be contrary to established legal precedent. It would also not be in the public interest because it would place severe restrictions upon the City attorney, the staff, and the City Council with respect to their ability to do their jobs. Without the privilege, the City could not get the very best candid and frank advice it needs to help it perform its public functions according to law. The City must attempt to strike a balance between the public right to open government and access to public documents and its obligation to carryout and enforce municipal laws to the best of its ability. Weakening the attorney client privilege is not in the public interest. In our view, the potential harm caused by making all correspondences from the City attorney public outweighs the public right to access these documents.
RECOMMENDATION: Reject Mr. Griswold’s Appeal and affirm the City Administration’s action.