U.S. Mail Address P.O.

Box 2575 East Lansing, MI 48826-2575 Phone: (517) 484-8000 Fax: (517) 484-0041 Fax: (517) 484-0081 All Other Shipping 2900 West Road, Suite 400 East Lansing, MI 48823-6386

LISA L. SWEM (517) 374-8846

April 2, 2014

Eric J. Greene Director, Public Information and Marketing Kellogg Community College

Via e-mail GreeneE@kellogg.edu

Re: Closed Session Meeting of the Board of Trustees Dear Mr. Greene: I write in response to a media inquiry which questions the legality of the March 31, 2014 closed session meeting of the Board of Trustees. For the reasons reviewed below, that closed session was in full compliance with the Michigan Open Meetings Act (OMA). OMA Section 8(h) Section 8(h) of the OMA permits a public body to meet in closed session to consider material exempt from discussion or disclosure by state or federal statute. MCL 15.268(h). That purpose was identified by the Board of Trustees when voting to convene in closed session on March 31st and, indeed, that is what the Board of Trustees did when it convened in closed session to consider the March 31, 2014 written opinion of legal counsel addressed to the Board of Trustees. In addition to protections under the attorney-client privilege, that written opinion relied, in part, on communications subject to the investigator-client privilege further protected by Michigan statute. Attorney-Client Privilege The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Upjohn Co v US, 449 US 383, 389 (1981). The purpose of the attorney-client privilege is to permit a client to confide in the clients counselor, knowing that the communications are safe from disclosure. Co-Jo, Inc v Strand, 226 Mich App 108, 112 (1997). Opinions, conclusions, and recommendations based on facts are protected by the attorney-client privilege when the facts are confidentially disclosed to an attorney for the purpose of legal advice. Leibel v General Motors Corp, 250 Mich App 229, 239 (2002). Section 13(1)(g) of the Freedom of Information Act (FOIA) permits a public body to exempt from disclosure information or records subject to the attorney-client privilege. MCL 15.243(1)(g). The written opinion of legal counsel addressed to a public body is within the common law attorney-client privilege which is exempt from disclosure under Section 13(1)(g) and, therefore, provides a lawful basis for a public body to convene in closed session. The Michigan Court of Appeals has ruled that a public body may meet in closed session to consider East Lansing Novi West Michigan

Eric J. Greene April 2, 2014 Page 2 of 3 and discuss the written opinion of counsel, or information reasonably related thereto, which is exempt from disclosure under FOIAs attorney-client privilege provision. Booth Newspapers, Inc v Regents of the University of Michigan, 93 Mich App 100, 106-107 (1979); Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 468 (1988). I am mindful of Michigan court rulings which hold that Section 8(h) does not permit the public body to convene in closed session for the purpose of receiving an oral legal opinion because oral opinions are not within the definition of public records. Booth Newspapers, Inc v Wyoming, supra at 467; Detroit News, Inc v City of Detroit, 185 Mich App 296, 304 (1990). That situation, however, does not apply to the March 31st closed session because the Board of Trustees received a contemporaneous written opinion of legal counsel to consider and discuss. Investigator-Client Privilege In addition to the attorney-client privilege, Michigan has enacted a statutory licensed investigator-client privilege, which in part, states: Any communications, oral or written, furnished by a professional or client to a licensee, or any information secured in connection with an assignment for a client, is considered privileged with the same authority and dignity as are other privileged communications recognized by the courts of this state. MCL 338.840(2). The Michigan Court of Appeals analogized this statutory privilege to the attorney client privilege and explained: The statute reflects the Legislatures determination that broad protection is to be accorded the private detective-client relationship. Any communication by a client to a licensee and any information secured in connection with an assignment for a client is privileged. The Legislatures express extension to those communications of the authority and dignity conferred upon other, judicially recognized privileged communications prompts us to construe the scope of this privilege by analogy to the attorney-client privilege. Ravary v Reed, 163 Mich App 447, 451-52 (1987). Broad construction has been given to the type and scope of information rendered privileged by this statute. People v White, 256 Mich App 39, 47 (2003). Accordingly, information gathered by a licensed investigator in connection with an assignment for a client is exempt from disclosure under the FOIA. Vettraino v DeWitt Pub Schs, 2012 Mich App LEXIS 971 (2012), unpublished per curiam opinion of the Michigan Court of Appeals.

Eric J. Greene April 2, 2014 Page 3 of 3 Because the March 31st written opinion of legal counsel relied, in part, on information communicated to counsel by a licensed investigator, that information is likewise privileged and further provides a basis for the closed session meeting pursuant to OMA Section 8(h). Conclusion You may share this information with media personnel as you deem appropriate. Further, please convey to the reporter, I am willing to address further questions about this matter with Robin Luce Herrmann, who provides general counsel to the Michigan Press Association. Very truly yours, THRUN LAW FIRM, P.C.

Lisa L. Swem lswem@thrunlaw.com c: Jonathan Byrd, KCC Board Chairperson KCC Board of Trustees