Had you sent an email to the NC Press Legal Hotline (firstname.lastname@example.org) inquiring about the applicability of the attorney-client privilege to public documents under the public records law prior to the passage of North Carolina’s recent secret budget bill, we would have told you:
- Communications to a public agency from their attorney concerning any claim against or on behalf of the agency would be confidential (and not public records) provided they were made within the scope of the attorney-client relationship; and
- The confidentiality of such communications to a public agency from their attorney would become public three years after they were received by the public body.
Our advice would no longer be the same now.
Section 27.7(g) of House Bill 259 – you know, the section of H.B. 259 coming right after the sections where the Legislative Branch codified a “legislative privilege and legislative immunity” and then wholly exempted itself from the Public Records Law in Sections 27.7(e) and (f) – muddied the waters. It appears that communications from an attorney for a public agency to the agency itself (but not vice-versa) remain confidential, but the limiting phrase “by any attorney-at-law serving any such governmental body” has been deleted. It’s unclear as to why or its impact.
What is clear is that the passage of H.B. 259 deleted automatic sunset on the confidentiality of such attorney communications to their public body clients making them public records three years after their receipt by the public body. Thus, the 100-year sunset on confidentiality may apply. See G.S. § 132-11 (“Notwithstanding any other provision of law, all restrictions on access to public records shall expire 100 years after the creation of the record.”) Why do we say G.S. § 132-11, “may apply” instead of “will apply?” Because G.S. § 132-1.1(a) defines “confidential communications” as not being public records at all. There’s quite a bit less sunshine in that Carolina Blue sky.
If you send an email to the NC Press Legal Hotline (email@example.com) inquiring about the scope of the attorney-client privilege as it relates to the Open Meetings Law, our advice did not change with the passage of H.B. 259. We would still tell you:
- That a public body may hold a closed session to consult with an attorney employed or retained by the body to preserve the attorney-client privilege (but note well, if there are others present who are not part of the public body, there may be no attorney-client privilege) (G.S. § 143-318.11(a)(3));
- General policy matters may not be discussed in a closed session and a public body is not permitted to close a meeting that otherwise would be open merely because an attorney employed or retained by a public body is present (G.S. § 143-318.11(a)(3));
- A public body may consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration, or administrative procedure. If the public body has approved or considered a settlement, other than a malpractice settlement by or on behalf of a hospital, in closed session, the terms of that settlement shall be reported to the public body and entered into its minutes as soon as possible within a reasonable time after the settlement is concluded (G.S. § 143-318.11(a)(3));
- A public body may also hold a closed session to establish, or to instruct the public body's staff or negotiating agents (attorneys) concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount of compensation and other material terms of an employment contract or proposed employment contract (G.S. § 143-318.11(a)(5)); and
- While a public body can hold a closed session to consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee, a public body CANNOT hold a closed session to consider general personnel policy issues. Further, even with its attorney present, a public body MAY NOT consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting (G.S. § 143-318.11(a)(6).