Evaluation documents in employee suit covered by privilege

Evaluation documents in employee suit covered by privilege

10/23/95

OHIO–A city was allowed to deny a former school board employee access to his records because the attorney-client privilege protected evaluation reports prepared by a consultant for the city attorney, an Ohio appeals court in Miami ruled in late September.

The appeals court affirmed a lower court’s determination that third-party preparation of a recommendation does not remove the attorney-client privilege.

Former Piqua City School Board employee James Alley argued that the lower court erred in finding that the materials were privileged since the report was prepared not by the city’s attorney, but by a third party, who was paid directly by the city. Under these circumstances, Alley argued, the consultant was merely an agent of the board.

The board argued that it maintained no control over the consultant’s report, which was done at the behest of the city’s attorney, who hired the consultant to conduct an investigation of Alley.

Alley was fired soon after the board’s superintendent reviewed a report about Alley prepared by Dr. Daniel Raisch, an outside consultant. The report contained details of an investigation by Raisch of Alley’s work performance, as well as Raisch’s interviews of Alley’s co-workers.

Alley sought the report under Ohio’s Public Records Act but the board declined the request, saying it was not a public record. (State ex rel. Alley v. Couchois)