dissenting.
Under the attorney-client privilege exception to the Open Meetings Act, a public agency whose members face pending or potential litigation may conduct a closed meeting with their attorney to discuss these matters. Litigation is potential if the threat of being sued is “realistic” or “tangible” — if the “threat. . . goes beyond a mere fear or suspicion of being sued.” Claxton Enterprise v. Evans County Bd. of Commrs., 249 Ga. App. 870, 874 (2) (549 SE2d 830) (2001). In this case, the Grand Jury of Decatur County, the legal arm of the State, actively questioned alleged wrongdoings by members of the Commission and sent proposed presentments to them in which it required explanations and reasons for the Commissioners’ activities. The answers to these questions would be used to determine the extent and nature of the proceedings and charges that the grand jury would pursue against the Commissioners. These acts are directly analogous to discovery in a pending suit. As such, it cannot be maintained that the Commissioners were not subject to potential litigation. Therefore, their decision to conduct a closed meeting was proper under the attorney-client exception, and I must respectfully dissent.
*710The majority recognizes that the two competing policies of open government and attorney-client privilege must be balanced to determine whether a violation of the Open Records and Open Meetings Acts is present in this case. Contrary to the majority, however, this Court does not have to undertake that balancing test, because in the plain language of the Acts and their unambiguous exceptions, the General Assembly struck this balance by protecting the public’s right to know what its officials are doing while protecting the rights of officials once their official actions are drawn into question. As the majority notes, the grand jury of Decatur County initiated an investigation into certain actions taken by the Commissioners after it received a citizen’s complaint regarding alleged improprieties by the municipal government. When faced with the findings of the grand jury, the Commissioners needed recourse to their attorney to respond to the investigation conducted by the grand jury as a legal component of the State. This is precisely the statutory exception to public access on issues pertaining to pending or potential litigation contained in the Open Records and Open Meetings Acts. Instead of acknowledging the exception, however, the majority recalibrates the straightforward balance set by the General Assembly and creates an even stricter rationale for a public agency to conduct a closed meeting than is mandated by statute.
The grand jury presentment process, a judicial proceeding conducted under the supervision of the superior courts, authorizes the grand jury to conduct investigations of allegations of official misconduct and to issue reports which can lead to further criminal or civil proceedings where violations of the public trust are revealed. OCGA § 15-12-71. In this case, the district attorney provided the relevant proposed presentments to the Commissioners noting in the accompanying cover letter that “pursuant to Georgia law” the presentments investigating the Commissioners were provided prior to filing and publication to give “the officials the opportunity to respond.” Rather than a premature release, this was an appropriate undertaking by the district attorney once the grand jury initiated its investigation and formalized the depth of its concern about improper actions undertaken by the Commissioners. It was equally appropriate for the Commissioners to seek counsel’s advice in absolute confidence on how to respond to the grand jury inquiry. Conversely, it would be inappropriate for the Commissioners to release the information where the district attorney’s cover letter specifically stated that the presentments had not been filed or published.
The majority’s conclusion that the fact that the grand jury allowed the proposed presentments to physically leave the grand jury *711room amounts to a waiver of the confidentiality is equally unpersuasive and unsupported by statutory framework or legislative intent.1 OCGA§ 50-18-72 enumerates specific exemptions to protected documents and the notion of confidential documents taking on a public form is not present. Rather, the statute makes a specific provision for the publication of presentments done at the behest and under the approval of a judge. See OCGA § 15-12-80. The rationale for judicial oversight to proceed publication is understandable:
Since the grand jury proceedings are secret, OCGA§ 15-12-73, it is possible that a grand jury as a group of laypersons can exceed the scope of their authority and, because of their membership, become involved in politics and in local feuds. It is for this reason that a superior court judge supervises the grand jury and has the duty to scrutinize, receive, and order filed the presentment of the grand jury.
In re Floyd County Grand Jury Presentments for May Term 1996, 225 Ga. App. 705, 707 (1) (484 SE2d 769) (1997). See In re July-August, 2003 DeKalb County Grand Jury, 265 Ga. App. 870 (595 SE2d 674) (2004). Accordingly, even though there are important reasons to allow a grand jury to bring official misconduct to light, “this beneficial aspect of grand jury reporting must give way to the need for due process and fairness.” Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777, 779 (273 SE2d 19) (1980). Pre-publication review gives the institution and its counsel the opportunity to assert that the presentment is subject to expunction as exceeding the grand jury’s statutory authority by unnecessarily implicating the institution of wrongdoing where no criminal indictment is returned. In re Presentments of Lowndes County Grand Jury, 166 Ga. App. 258 (304 SE2d 423) (1983); Kelley v. Tanksley, 105 Ga. App. 65, 66 (123 SE2d 462) (1961). See In re Laurens County April-June 2001 & July-September 2001 Grand Jury, 267 Ga. App. 204 (2) (598 SE2d 915) (2004).
In creating the general provisions of the Acts, the General Assembly recognized the desirability of an open government and informed public; however, the General Assembly also provided that the rights extended to citizens under the Acts could not be absolute. To the contrary, when these rights conflict with longstanding principles of law mandating nondisclosure such as attorney-client privilege and the sanctity of grand jury proceedings, they must abate. The Acts were designed to allow the public to monitor the actions of its *712government officials. They were not designed to pierce the confidentiality of legal proceedings and potential proceedings which result once the acts of government officials are drawn into question. Accordingly, I would conclude that, so long as the Commissioners’ refusal to divulge information that they were not required to disclose was premised on these statutory exceptions, the trial court erred in finding violations of the Open Records and Open Meetings Acts.
Decided July 6, 2006. Hall, Booth, Smith & Slover, J. Brown Moseley, for appellant. Kirbo & Kendrick, David A. Kendrick, for appellee. Hull, Towill, Norman, Barrett & Salley, DavidE. Hudson, Stuckey & Manheimer, Hollie G. Manheimer, amici curiae. I am authorized to state that Justice Benham joins this dissent.Under the majority s rationale, in order to avoid liability for damages, the Commissioners were required to foresee the import of the “premature release,” and the resulting “waiver” of attorney-client privilege.