Lead Opinion
Based upon a citizen’s complaint, the Decatur County Grand Jury began a civil investigation of certain actions undertaken by the commissioners of that county (Commissioners). Thereafter, the grand jury forwarded to the county attorney its proposed presentments for the May 2005 term. These presentments questioned the propriety of the
Two days later, the Bainbridge Post Searchlight, Inc. (Newspaper), which is distributed in Decatur County, sent the Commissioners an open records request to review the documents to which the minutes of the meeting referred. However, the Commissioners informed the Newspaper that the closed session was authorized and that documents discussed in that session were not available for public inspection because they constituted a confidential response by them to proposed grand jury presentments. The Commissioners went on to inform the Newspaper that the requested records would not be disclosed until they were appended to the presentments and published by the superior court pursuant to OCGA § 15-12-80.
The Newspaper made two more requests for the documents, and both were denied on the ground that the information contained therein was not subject to the Open Records Act, OCGA § 50-18-70 et seq., orthe Open Meetings Act. On July 19,2005, the Newspaper filed this action, alleging violations of both Acts and seeking mandamus and other relief. On August 1, the grand jury tendered to the superior court the presentments and the Commissioners’ responses. The superior court approved the presentments and ordered their publication, with the responses published as an addendum thereto. Subsequently, in the Newspaper’s action, the trial court found that the Commissioners violated the Open Meetings Act by conducting the closed session and violated the Open Records Act by refusing to comply with the request for the grand jury presentments. Based on those findings, the trial court granted mandamus relief and, pursuant to OCGA § 50-18-73 (b), awarded attorney’s fees and costs to the Newspaper. The Commissioners bring this appeal from that order of the trial court.
1. The trial court erred insofar as it granted mandamus relief after the grand jury presentments were published and granted injunctive relief against future violations of the Acts. See Garnett v. Hamrick,
2. “Except as otherwise provided by law, all meetings” conducted by a public agency “shall be open to the public.” OCGA § 50-14-1 (b). However, this provision
shall not be construed so as to repeal... [t]he attorney-client privilege recognized by state law to the extent that a meeting otherwise required to be open to the public ... maybe closed in order to consult and meet with legal counsel pertaining to pending or potential litigation . . . brought or to be brought by or against the agency or any officer or employee or in which the agency or any officer or employee may be directly involved ....
OCGA § 50-14-2 (1). The Commissioners contend that the trial court erred in finding that this “attorney-client” exception does not apply in this case.
In our litigious society, a governmental agency always faces some threat of suit. To construe the term “potential litigation” to include an unrealized or idle threat of litigation would seriously undermine the purpose of the Act. Such a construction is overly broad. Construing OCGA§ 50-14-2 (1) narrowly, we hold that a meeting may not be closed to discuss potential litigation under the attorney-client exception unless the governmental entity can show a realistic and tangible threat of legal action against it or its officer [s] or employee[s], a threat that goes beyond a mere fear or suspicion of being sued. A realistic and tangible threat of litigation is one that can be characterized with reference to objective factors which may include, but which are not limited to, (1) a formal demand letter or some comparable writing that presents the party’s claim and manifests a solemn intent to sue, [cit.]; (2) previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims, [cit.]; or (3) proof that a party has both retained counsel with respect to the claim at issue and has expressed an intent to sue, [cit.] This list is not intended to be exhaustive but merely illustrative of circumstances that a trial court may consider, in the exercise of its discretion, that take the threat of litigation out of the realm of “remote and speculative” and into the realm of “realistic and tangible.”
Claxton Enterprise v. Evans County Bd. of Commrs.,
In this case, there was no “pending or potential litigation.” Indeed, there was not even a threat of any litigation. At issue were merely the proposed grand jury presentments which questioned the propriety of certain actions taken by the Commissioners. Thus, it is clear that the topic of the meeting related to the manner in which the county’s business was being conducted and, as such, the purpose was to fashion a political response, not to prepare a legal defense. Under these circumstances, we will follow Claxton Enterprise and conclude that the trial court properly rejected the Commissioners’ claim of “attorney-client” privilege as “remote and speculative,” rather than “realistic and tangible.”
3. The Commissioners also invoke OCGA § 15-12-80, which authorizes grand juries “to recommend to the court the publication of the whole or any part of their general presentments and to prescribe the manner of publication.” The purpose of this statute is to protect public officials from premature and unauthorized disclosure of grand jury proceedings. In re Floyd County Grand Jury Presentments for May Term 1996,
4. Insofar as it found a violation of the Acts and awarded attorney’s fees and costs pursuant to OCGA § 50-18-73 (b), the trial court ruled correctly and its judgment is, therefore, affirmed.
Judgment affirmed in part and reversed in part.
Dissenting Opinion
dissenting.
Under the attorney-client privilege exception to the Open Meetings Act, a public agency whose members face pending or potential litigation may conduct a closed meeting with their attorney to discuss these matters. Litigation is potential if the threat of being sued is “realistic” or “tangible” — if the “threat. . . goes beyond a mere fear or suspicion of being sued.” Claxton Enterprise v. Evans County Bd. of Commrs.,
The majority recognizes that the two competing policies of open government and attorney-client privilege must be balanced to determine whether a violation of the Open Records and Open Meetings Acts is present in this case. Contrary to the majority, however, this Court does not have to undertake that balancing test, because in the plain language of the Acts and their unambiguous exceptions, the General Assembly struck this balance by protecting the public’s right to know what its officials are doing while protecting the rights of officials once their official actions are drawn into question. As the majority notes, the grand jury of Decatur County initiated an investigation into certain actions taken by the Commissioners after it received a citizen’s complaint regarding alleged improprieties by the municipal government. When faced with the findings of the grand jury, the Commissioners needed recourse to their attorney to respond to the investigation conducted by the grand jury as a legal component of the State. This is precisely the statutory exception to public access on issues pertaining to pending or potential litigation contained in the Open Records and Open Meetings Acts. Instead of acknowledging the exception, however, the majority recalibrates the straightforward balance set by the General Assembly and creates an even stricter rationale for a public agency to conduct a closed meeting than is mandated by statute.
The grand jury presentment process, a judicial proceeding conducted under the supervision of the superior courts, authorizes the grand jury to conduct investigations of allegations of official misconduct and to issue reports which can lead to further criminal or civil proceedings where violations of the public trust are revealed. OCGA § 15-12-71. In this case, the district attorney provided the relevant proposed presentments to the Commissioners noting in the accompanying cover letter that “pursuant to Georgia law” the presentments investigating the Commissioners were provided prior to filing and publication to give “the officials the opportunity to respond.” Rather than a premature release, this was an appropriate undertaking by the district attorney once the grand jury initiated its investigation and formalized the depth of its concern about improper actions undertaken by the Commissioners. It was equally appropriate for the Commissioners to seek counsel’s advice in absolute confidence on how to respond to the grand jury inquiry.
The majority’s conclusion that the fact that the grand jury allowed the proposed presentments to physically leave the grand jury room amounts to a waiver of the confidentiality is equally unpersuasive and unsupported by statutory framework or legislative intent.
Since the grand jury proceedings are secret, OCGA§ 15-12-73, it is possible that a grand jury as a group of laypersons can exceed the scope of their authority and, because of their membership, become involved in politics and in local feuds. It is for this reason that a superior court judge supervises the grand jury and has the duty to scrutinize, receive, and order filed the presentment of the grand jury.
In re Floyd County Grand Jury Presentments for May Term 1996,
In creating the general provisions of the Acts, the General Assembly recognized the desirability of an open government and informed public; however, the General Assembly also provided that the rights extended to citizens under the Acts could not be absolute. To the contrary, when these rights conflict with longstanding principles of law mandating nondisclosure such as attorney-client privilege and the sanctity of grand jury proceedings, they must abate. The Acts were designed to allow the public to monitor the actions of its government officials. They were not designed to pierce the confidentiality of legal proceedings and potential proceedings which result once the acts of government officials are drawn into question. Accordingly, I would conclude that, so long as the Commissioners’ refusal to divulge information that they were not required to disclose was premised on these statutory exceptions, the trial court erred in finding violations of the Open Records and Open Meetings Acts.
Notes
Under the majority s rationale, in order to avoid liability for damages, the Commissioners were required to foresee the import of the “premature release,” and the resulting “waiver” of attorney-client privilege.