Some Time in the Shade: Giving the Public's Legal Counsel Some Relief under Alabama's Sunshine Law

By Daniel, Gerald A., Jr. | Jones Law Review, Annual 2005 | Go to article overview

Some Time in the Shade: Giving the Public's Legal Counsel Some Relief under Alabama's Sunshine Law


Daniel, Gerald A., Jr., Jones Law Review


The good of the people is the greatest law. Cicero

INTRODUCTION

In 2004, the Alabama Supreme Court expanded its attorney-client exception to the Alabama open meetings law. Adopting a Tennessee standard, the court held that public commissions and boards may close meetings to discuss with their attorneys not only pending litigation, but also "imminently likely" litigation or litigation that might result from their actions. Locking out the public from decision making and policy deliberation is contrary to the black letter law of Alabama and believed by many to create a breeding ground for political corruption. The issue before the Alabama Supreme Court in Auburn University v. Advertiser Company (1) was whether the public is best served when the otherwise confidential discussions between an attorney and client are made available to the public and any potential adversary.

This case brought once again to the forefront an ongoing conflict between the competing concepts of open meetings to provide for the public's interaction with its governing bodies and the need for attorneys to be able to speak privately and frankly with their clients. This Note will review the backgrounds of these two competing concepts and review the discussion of the court and some of the other decisions that have considered the tension. Finally, this Note will look to the potential resolution of the conflict based on the decision of the court.

BACKGROUND

A. Sunshine Laws

Sunshine Laws, also called open meeting laws, require that government deliberations and decision making be made in a public forum so that the general public may observe and thereby participate in those decisions. (2) The purpose of the laws hearkens back to the words of James Madison (3) and the notion that our democratic form of government can only succeed if the people are informed and involved in their own governance. The general public has a duty to observe the government and the decision-making process, (4) which should not be left solely to the press. (5) Thereafter, the public can make corrections to the course of their own government through the elective process. The founding fathers advanced the notion that the public has a right and a duty to be informed to ensure the best possible governance, a notion embodied in the First Amendment's constitutional guarantee of freedom of the press. (6) Today, the general public has an expectation that the media will be present to observe and report on the conduct of all public meetings, but such was not always an expectation in this country. (7)

Sunshine laws are a relatively contemporary development in the United States, with the bulk of state legislation having been enacted in just the last fifty years. (8) Since about 1950, the national press has successfully pushed governments at all levels to open their meetings to the public. (9) Remarkably, the federal government did not open meetings and deliberations of federal agencies until the Carter administration in the mid-1970s. (10) Alabama was one of the first states to establish an open meetings law, a law that remained substantially unchanged for nearly ninety years. (11)

1. "The Federal Government in the Sunshine Act"

The federal government passed the federal Administrative Procedures Act in 1976 (APA). (12) The federal open meetings law (13) is an integral part of the APA, often closely associated with the Freedom of Information Act (14) and the Privacy Act. (15) Together, these three sections of the APA work to control much of the information transferred to and from the public. The federal open meetings law begins with the basic rule that all meetings are to be held in open, public fora; executive agencies may not meet privately to "conduct or dispose of agency business." (16) There are ten exceptions to the basic rule. (17) Like the Alabama law, the federal statute provides some protection against needless damage to an individual's reputation. …

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