One of the most regularly used reasons to enter executive session is to discuss a matter that would result in the disclosure of communications that are privileged by the attorney-client relationship. The agenda item often appears as this: “Discussion and possible action on attorney-client privileged communication – executive session anticipated.” Unfortunately, this agenda item will probably violate the Freedom of Information Act (FOIA). We have blogged about this topic before, but it is a such a recurring issue that we wanted to emphasize the reasons to avoid being vague on the agenda with regard to attorney-client privileged communications. Here are three:

1. The Privacy of the Executive Session Does Not Extend to the Agenda

Just because the board has cause to discuss a matter in executive session doesn’t mean the public is also excluded from knowing the general subject matter that will be discussed in private. Whether or not an item will be discussed in executive session, the agenda for the meeting must be specific enough to fairly apprise the public of the matters to be addressed and whether any action may be taken. Recent decisions from the Freedom of Information Commission (“FOIC”) and the Superior Court have made it very clear that broadly listing “attorney-client communication” without further description on the agenda is likely to be insufficient. In the case of  Lowthert v. Freedom of Information Commission, 61 Conn. L. Rptr. 663 (January 15, 2016), Superior Court Judge Carl Schuman explained that “an agency should provide an agenda and notice that, absent some overriding concern, has at least some significance to the public and that provides at least some level of meaningful disclosure about the subject matter of a public agency meeting.”

2. Giving Adequate Notice is Not as Hard as You Think

The Lowthert decision also emphasized that “[c]ourts have consistently held that the general subject matters of clients’ representations are not privileged.”  It may take some wordsmithing to come up with the right balance of providing information without revealing the content of the communication, but taking the time to add a phrase to describe the general subject matter to be discussed is relatively easy in comparison to defending a complaint before the FOIC. You simply need to add the subject matter.  While not intended to be exclusive, and while each situation requires an individualized review (and perhaps advice of counsel), the following examples are offered:

Discussion of attorney-client privileged communication re: performance of administrator – possible executive session

Discussion of attorney-client privileged communication re: legal claims related to breach of contract – possible executive session,

Discussion of attorney-client privileged communication re: opinion on applicability of charter budget provision – possible executive session

3. It is Difficult to Rely on the Defense that Identifying the Subject Matter Would Disclose the Confidential Attorney-Client Communication

As the Lowthert case makes abundantly clear, there must be actual evidence (e.g., testimony), that the disclosure of the subject matter would reveal the confidential communications, as opposed to inferences and assumptions.  It may be difficult to find a witness who can, in good faith, provide such proof. It is likely that only an unusual set of circumstances will result in the need to keep even the subject matter of an attorney-client communication confidential.