A few weeks ago, I asked the school district for a copy of the legal opinion it received about its proposed (now enacted) policy regulating public comment at school board meetings. I thought I had a right to see the policy under the Iowa Open Records law. I now think that I’m probably (though not certainly) wrong about that.
The Open Records law protects as confidential only those “Records which represent or constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.” Since everyone seems to agree that the legal opinion about the public comment policy was not “related to litigation or claim made by or against” the school district, I argued that the opinion was not confidential under the act. Just looking at the statute itself, I think that argument makes a lot of sense. But it turns out that there is case law saying that the act was not intended to “affect other specific statutory privileges recognized by the legislature, such as the attorney-client privilege.” It’s still something of an open question, because that case did not conclusively resolve the issue, and because it’s not clear that the district’s assertion of the attorney-client privilege has any statutory basis. But it lowers the odds that I’d win if I appealed the issue and increases the amount of work it would be to appeal. Add in the fact that I have only one month left to appeal—and that it’s one of the busiest times of the semester—and that’s enough to make me throw in the towel.
None of that has any bearing, though, on whether the district should have withheld that legal opinion from the public. The client in an attorney-client relationship is always free to waive the privilege. The district’s position is apparently that it will disclose only the bare minimum of what it is legally required to disclose, and that it will keep secret the maximum that it is allowed to keep secret. I don’t understand that approach. My guess is that there is nothing earthshaking in the attorney’s opinion, and that it probably confirms what many other lawyers (including me) have been saying about the First Amendment restrictions on what the school board can do. Why is the district so determined not to let the public hear that advice?