I have to decide whether to pursue the matter further. I could, for example, appeal the district’s decision to the relatively new state Public Information Board. I won’t be able to make that decision until I’ve done some research on the legal issue involved. At some point, I’ll find some time to do that research, but for the next week or two that’s not going to happen.
For now, I’d just point out: Even if the district were to have a legal right to withhold the document, it is certainly not required to withhold it. In any lawyer-client relationship, the client always has the right to waive the attorney-client privilege. Its decision to assert lawyer-client privilege is a choice. In this instance, why does the district want to conceal from the public what its attorney thinks about the school board’s ability to regulate public speech at board meetings? That information could only help the public understand and evaluate the board’s policy and practices. Is there any good reason for withholding that information from the public?
Keep in mind that analogous opinions by the Attorney General at the state level are published and freely available. It would hardly be the end of the world if the public got to hear the legal opinion that was requested by public officials and paid for with public funds.
Here’s what I asked for in my request on August 21:
A copy of the “legal brief” or legal opinion about the school board’s policies on public comment at board meetings, referred to by Director Lynch and Director McGinness at the August 24, 2014 board meeting.The district response: “The District’s position is that the document is a privileged communication between an attorney and client. Chapter 22 doesn’t apply to such communications. Chapter 22 does not repeal or eliminate the privilege and 22.7(4) was likely a response to some specific instance where the general law was not clear.”
This is a reiteration of the request I made in my August 13 email to the superintendent.
No extensive search is necessary; it would be enough simply to ask the district’s counsel for a copy of the document.
The new public comment policy is scheduled to be voted at the next board meeting. The public should be able to review any legal opinion that the district sought about the policy before that vote occurs.
There is no reason to think that the document is protected as confidential attorney work product under Iowa Code 22.7(4). That section protects only those records that “represent or constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.” There is no reason to think that the document referred to at the meeting was related to any litigation or claim made against the district, or even that any such litigation or claim has been made at all by anyone.
My initial reaction is that the statutory exception, which is limited to attorney work product that is related to litigation, would be pointless if all attorney communications were confidential regardless of whether they related to litigation. But the district’s attorney is a smart guy, and God knows law is often less than straightforward, so I won’t dismiss his argument out of hand. When I get a chance, I’ll take a closer look.
In any event, I understand why the lawyer would want to play it safe and not release the document, if there was any doubt about its status. But neither the district administrators nor the school board are bound by the privilege at all. Why don’t they just let us see it?