The Open Meetings Act (OMA); Closed sessions held to discuss written legal advice from counsel; MCL 15.268(1)(h); Freedom of Information Act (FOIA) exemption for information or records subject to the attorney-client privilege; MCL 15.243(1)(g); Detroit News, Inc v Independent Citizens Redistricting Comm’n; Requirement that the purpose for calling a closed session be entered into the meeting minutes; MCL 15.267(1); Mr Sunshine v Delta Coll Bd of Trs; Vermilya v Delta Coll Bd of Trs; Herald Co v Tax Tribunal

The court held that defendant-school board did not violate the OMA by going into closed session “for a permissible purpose under MCL 15.268(1)(h)—consideration of” a written legal opinion from its attorney. Further, there was “no genuine factual dispute that defendant’s meeting minutes sufficiently set forth the purpose of the closed sessions.” Thus, the court affirmed summary disposition for defendant. Plaintiff’s appellate arguments centered “around his general contention that defendant cannot avail itself of the common-law attorney-client privilege, and instead can only invoke a substantially more limited ‘government attorney-client privilege.’” But the court found no precedential authority in Michigan supporting this argument. It noted that it “has routinely accorded the common-law attorney-client privilege to governmental entities and officials.” While plaintiff relied on a footnote in the Supreme Court’s opinion in Detroit News, this was “merely dictum and does not establish that defendant does not enjoy the common-law attorney-client privilege or that it instead can only invoke a more limited attorney-client privilege.” Further, that case did not, as plaintiff asserted, establish “that the OMA’s open-meetings requirement prevails over the common-law attorney-client privilege. Here, unlike in Detroit News, the relevant open-meetings requirement does not derive from the Constitution, which prevails over any ‘repugnant’ application of the common-law attorney-client privilege. Nor does it require that all business of defendant, without exception, be conducted in open meetings. Instead, the open-meetings requirement at issue in this case derives from a statute, the OMA, which expressly allows for closed sessions.” MCL 15.268(1)(h) and the relevant FOIA exemption, MCL 15.243(1)(g), “do not indicate any intent by the Legislature to abrogate the common-law attorney-client privilege as to governmental entities and their open meetings; if anything, these provisions confirm that privilege’s applicability.” Plaintiff’s claim that defendant violated MCL 15.267(1), related to meeting minutes, also failed. The court rejected his contention that defendant was “required to provide factual details showing that the specific matter being discussed in the closed session was covered by the attorney-client privilege.” The court found its decision in Mr Sunshine was on point as to this issue.