From the Journal and Courier (Lafayette):

Q: A public school employee was accused of something and then resigned. That employee was communicating on his public email account with his attorney.

In a records request, we included a request for any email communication between that employee and his attorney. The school district is currently seeking legal counsel on how to respond to that portion of our request.

The attorney won’t speak with me, but I’m assuming he’ll claim it is non-disclosable due to attorney-client privilege.

Does a public agency have the obligation to withhold from disclosure public email communication between a public employee and the employee’s attorney if the agency in possession of that communication was not a party to the attorney-client discussion? 

A: You have raised a unique question that I don’t think I’ve seen before. And I don’t believe our state courts have addressed this situation.

As you noted, I’m sure the employee’s attorney will argue all correspondence would fall under the attorney-client provisions, but I see the possibility that the employee effectively waived the privilege by using the public email account.

If we look at public records like a library, you have the following situation:

The books in the library are available to all in the community to read, just like the general principle in the Access to Public Records Act is that the records of state and local government units are available for inspection and copying by the public.

Now the library may have some rare or old books that are set aside and either unavailable to anyone to preserve them or available upon appointment to protect them from damage. Similarly, the legislature has determined that records that cover certain subject matters should be confidential at the discretion of the government unit or are mandated to be confidential.

One of those subject matters would be the work product of an attorney working for the public agency.

In your situation the question is, Was the attorney working for the employee or the government unit? If the attorney was working for the employee, was it concerning his actions as a government employee or a private matter?

If the attorney was representing the government unit, then it probably falls under the attorney work-product exception and could be kept confidential. The same probably would apply if the attorney were representing the employee in a lawsuit concerning the actions taken by the employee in the course of his or her work.

But if the attorney were representing the employee for actions outside the scope of work (either a personal matter like a divorce or defending the employee for an illegal act, such as misappropriation of public monies), then I would argue the work product of an attorney representing a public agency would not apply.

You’re then left with the attorney-client privilege and whether the employee was negligent enough to conduct his legal correspondence through public email, which falls under the scope of the Access to Public Records Act. Then that employee has effectively waived the privilege for those emails because he knowingly put them into an area open to the public.

It would be like leaving his legal file on the library shelf where anyone could look at it.

Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427.