What Isn’t Covered by the Attorney-Client Exemption to FOIA?
One tiny exemption seems to cover just about every public document you could ask for.
South Carolina’s Freedom of Information law contains two significant and frequently used exemptions. The first is for lawmakers. Having written the FOIA law, they have exempted themselves, as have lawmakers in many other states.
The other exemption is the attorney-client privilege. This has frequently been used to deny FOIA requests simply because an attorney was part of the process of public decision-making. And of course, since attorneys are part of most public decisions, that exemption can cover almost anything.
Consider the following exchange, sent to us from Waylon Wilson of Lancaster County. He asked the county attorney for a piece of information that should (it would seem) have been included in materials distributed at a public meeting of the Lancaster County Planning Commission.
His request was denied, with a citation to the attorney-client exemption. The relationship between the county’s attorney and a county commission, the attorney is saying, is protected by the same kind of secrecy protecting a private citizen and his or her attorney. What do you think: a fair use of the exemption, or not?
To: Steve Willis
From: Waylon Wilson
This is a FOIA request for the following:
- A copy of the memo Mr. Weaver presented to the Planning Commission during this past Planning Commission meeting of April 19. Surprisingly, this memo was not included in the published Planning Commission agenda packet.
- A copy of the hours spent by any outside attorney firm that authored or helped created the memo in item one above.
- A copy of the billing of item two above.
To: Waylon Wilson
From: John Weaver
Mr. Wilson – Your FOIA request has been forwarded to me for response. Answers to each of your inquiries are as follows:
- The memorandum prepared by me for use by the Planning Commission is subject to attorney-client privilege and is an exception to the state’s FOIA laws. As such, it cannot be released by me. Whether or not any Planning Commission member (my client) will or has done so is unknown by me. The Administrator has been asked by others for the same document and the person(s) making the inquiry has received the same response as yours.
- The document was prepared solely by me without any outside legal participation/billing.
John L. Weaver
Lancaster County Attorney
To: Steve Willis
From: Waylon Wilson
Below is an email response I received from your employee claiming attorney-client privilege of a memorandum presented to the Planning Commission, in an open public session. I am surprised and amazed by this position. The Commission members had copies of the document and were asked to follow along as the County’s attorney read excerpts from the memorandum.
Following this example and line of reasoning would give one cause to believe that any written information from Lancaster County’s attorney could be construed as attorney-client privileged information. This approach to county government disclosure would not only exclude citizens but the press and news media as well. As Lancaster County’s attorney reports to you, your attention to this county policy position would be appreciated. This email is being addressed to the executive members of County Council with reference to Ordinance 2015-1327. Mr. McCullough is being copied in case he should want to bring this policy position/example before the I&R committee.
Attorney client privilege is governed by state law and legal canons, not by County policy or Council directive. Should the Planning Commission, the client, elect to waive the privilege they may certainly do so. Requests to waive the privilege and allow the release of the document should be directed to Chairman Deese. Even I do not have a copy of the document as I was not the client in this matter.
Sent from my iPhone
I appreciate your response and reference to South Carolina Code regarding attorney-client privileges. Using your line of thought and reasoning would lead me to believe that ANY documentation given or displayed by ANY entity during a Lancaster County public session could be concealed and protected by claiming such attorney-client privileges. The subject memorandum was provided in a public meeting. Therefore, the blanket attorney-client definition cannot be applied to the County Department and this FOIA request.
The discussion above is the reason why the issue is being referred back to you for your attention. You are County Manger and, as such, are responsible for overseeing the appropriate actions of most Lancaster County employees. In closing, you may want to review South Carolina Code of Laws, Title 30; Chapter 4. I am looking forward to hearing from you upon your reconsideration of this matter.
I reviewed the SC Freedom of Information Act and attorney client privilege is specifically exempted per SC 30-4-40(7) which reads:
(7) Correspondence or work products of legal counsel for a public body and any other material that would violate attorney-client relationships.
I will not direct the County Attorney to violate the attorney client privilege. That said, if the client, in this case the Planning Commission, desires to waive the privilege and release the document they may certainly do so. I do not have the authority to direct them to take any specific action. As mentioned previously even I do not have a copy of the document as I was not the client in this matter.
I appreciate your reply but it seems to indicate that you may have stopped short of a through reading of South Carolina Code; Title 30 Chapter 4. During the Planing Commission public meeting Mr. Weaver, your employee (as he addressed you as his “boss”), said he was asked for a legal opinion (by whom I know not). Mr. Weaver had copies of his written comments of his opinion for each Commission member and asked the Commission, several times, to follow his discussion by looking at various pages of the document. Therefore, Mr. Weaver’s written document became “public” information as it was discussed and referenced during a public meeting and should be included in the minutes of the meeting.
As a curiosity to you and save you time, below is Section30-4-90(3) of our South Carolina Code that covers meeting minutes of public bodies.
SECTION 30-4-90. Minutes of meetings of public bodies.
(a) All public bodies shall keep written minutes of all of their public meetings. Such minutes shall include but need not be limited to:
(1) The date, time and place of the meeting.
(2) The members of the public body recorded as either present or absent.
(3) The substance of all matters proposed, discussed or decided and, at the request of any member, a record, by an individual member, of any votes taken.
(4) Any other information that any member of the public body requests be included or reflected in the minutes.
I anxiously await a reversal of your position and a delivery of the requested information as this matter is not a attorney-client privilege issue. It is a public information issue.
The exemption in paragraph 7 in 30-4-40 still stands. There will be no reversal of my decision forthcoming. I respectfully recommend you petition the Planning Commission for the document.