A win for the people: attorney-client privilege claim rejected

October 18, 2022

Public bodies in Michigan have been misusing the legal concept of "attorney-client privilege" to deny citizens access to public records. The City of Lansing is a repeat offender.

The purpose of the privilege is to keep an attorney from being forced to testify against his client. It keeps communications between attorney and client private.

In a November 17, 2020 email to HUD officials, former City Development Manager Donald Kulhanek downplayed claims by Lansing resident Tammie Arend that a contractor botched the installation of her new roof, resulting in a leak that did extensive damage to her home. The roof replacement was done through the City of Lansing's Homeowner Rehabilitation Program. In his email, Kulhanek made Tammie out to be a delusional crank and quoted from an email from an unnamed assistant city attorney who described incidents that seemed to discredit Tammie. In August, I submitted a FOIA request for the assistant city attorney's email.

My request was denied on September 26.

I appealed.

In the city attorney's denial, two reasons were given. The first was

[T]he records you requested contain confidential communications between a client and an attorney for the purpose of obtaining legal advice. As such, the records that you requested contain information that is subject to attorney-client privilege and, therefore, exempt from disclosure . . .

In my appeal, I said

	You can’t claim attorney-client privilege just because a lawyer takes part in the communication. The "confidential" communication in question here was between an unnamed assistant city attorney and Donald Kulhanek, who also was a lawyer. There was no attorney-client relationship. The communication was not for the purpose of obtaining legal advice. Also, the attorney-client privilege cannot be asserted if the communication is shared with a third party, as it was with Portia McGoy of HUD. I get my understanding of attorney-client from this site, which says:
		The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

The second reason for the denial was

[I]t contains communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. In this instance, the public interest in encouraging frank communications between officials and employees clearly outweighs the public interest in disclosure.

To this, I said

Here again, the claim of confidentiality is invalidated by the fact that the email was shared with Portia McGoy. Also, the communication does not seem to be preliminary to a final agency determination of policy or action. And in this case, it is not clear that the public interest in encouraging frank communications between officials and employees outweighs the public interest in disclosure.

City council president Adam Hussain granted my appeal. He said

In consideration of all the factors related to this matter, and the fact that the email in question was largely shared with a 3rd party, I have determined that public interest in releasing the email in question outweighs governmental interest in exempting the communication because of the attorney-client privilege that exists in the communication.

The assistant city attorney who wrote the email was Amanda O'Boyle. It was directed to Mayor Andy Schor and City Attorney Jim Smiertka with copies to Economic Development & Planning Director Brian McGrain, Code Enforcement Manager Scott Sanford, Citizen Advocate Mark Lawrence, Human Resources & Community Services Director Kim Coleman and Venus Kumar of the city attorney's office.

So much for confidentiality.

The O'Boyle email was full of misinformation, if not lies. It amounts to character assassination. It deserves a story of its own:

O'Boyle email gets nothing right; Castillo terrorizes Lansing's east side