President Lyndon Johnson secured the public’s right to know the inner workings of government by signing the Freedom of Information Act (FOIA) into law in 1966. Congress did not believe that the right to this information was absolute and carved out exemptions in the FOIA retaining privileges that were available at common law. In the decades following the FOIA’s passage, a significant judicial tendency emerged: courts began extending the attorney-client privilege to organizational clients, such as corporations, and then, by analogy, to state and local governments. The FOIA represents an attempt to create an open and transparent government. Conversely, the extension of attorney-client privilege to government officials facilitated communication between officials and attorneys while simultaneously ensuring the confidentially of government records. These two developments set the stage for two uncertainties in the law. First, to what extent, if any, does a governmental attorney-client privilege exist, and if it exists, do public records laws negate the privilege? . . .
