State’s Pursuit of Snyder Emails Could Pierce Officials’ Veil of Attorney-Client Privilege

Earlier this year, the University of Michigan claimed in response to a lawsuit that it did not have to release records containing the gross salaries of its employees, saying the information was not subject to the state’s open records law.

U-M lost that lawsuit, but conflicts related to the state’s transparency law continue. The Mackinac Center for Public Policy has filed eight lawsuits in 2021 over governments failing to share public information, as required by the Michigan Freedom of Information Act.

This is part of a pattern of the state and local governments devising new claims to avoid including basic information in their responses to open records requests. The pattern serves as a backdrop for a striking claim made by Assistant Michigan Attorney General Christopher Kessel at a court hearing involving the possible release of emails from former Gov. Rick Snyder.

During the Flint water crisis, Snyder had email conversations with an attorney. The former governor claims that releasing these emails would violate attorney-client privilege, a doctrine Michigan municipalities routinely employ to justify withholding information.

The state Attorney General office wants those emails, and Kessel argued that attorney-client confidentiality does not apply to public officials who consult with an attorney on state email accounts.

“Labeling something confidential doesn’t make it privileged,” Kessel told the judge during the hearing. “None of those things make something automatically privileged. The other thing, judge, and, and I’m not going to do the defenses’ homework for them, but, judge, these defendants are claiming that they were exchanging private matters on state owned servers. Judge, they don’t have the right to privacy in state owned email and servers. They simply don’t.”

Steve Delie, an attorney who works on open government issues for the Mackinac Center, has reviewed Freedom of Information Act requests for municipalities and nonprofits. He says that Kessel’s interpretation of attorney-client privilege would be a massive shift in how it is treated under the state open records law.

“This claim would be shocking to any number of municipalities who regularly claim privilege for correspondence with their attorneys on public email.” Delie said. “The default assumption is that emails are privileged. If you FOIA any Michigan municipality and ask for correspondence between them and their attorney, they will immediately claim privilege.”

The state of Michigan’s 2019 FOIA Handbook says that information or records subject to attorney-client privilege are exempt from disclosure.