Attorney-client privilege: Which public records are exempted from the state Open Records Act?
Question from the public: The city attorney advised the mayor that the mayor may take a second job. I requested a copy of the memo but was told it’s covered by attorney-client privilege. Is it?
The state Open Records Act does not apply to government documents “protected by a state evidentiary privilege such as the attorney-client privilege, the work product immunity from discovery and the identity of informer privileges.” (OKLA. STAT. tit. 51, § 24A.5(1)(a))
But to what extent may governments claim attorney-client privilege?
In 1981, the state Supreme Court noted that the privilege “is not generally available to” public bodies. (State ex rel. Cartwright v. Oklahoma Indus. Auth., 1981 OK 47, ¶ 32).
“Under the provisions of 12 O.S. § 2502 (D) of this State's new evidence code, there is no attorney-client privilege ‘As to a communication between a public officer or agency and its attorney unless the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest,’” the court said. (Id.)(emphasis added)
That statute remains in effect.
“There is no privilege under this section: … As to a communication between a public officer or agency and its attorney unless the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.” (OKLA. STATE. tit. 12, § 2502 (D)(7))
Therefore, a public body or official could claim attorney-client privilege only if the document “concerns a pending investigation, claim or action.”
Even then, the document could be kept confidential only if a court said disclosure would “seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.”
If you know of a court decision, attorney general opinion or other statute to the contrary, please let me know.
Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism