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Executive privilege narrowed in records case

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NEWS MEDIA UPDATE   ·   OHIO   ·   Freedom of Information   ·   July 28, 2006

NEWS MEDIA UPDATE   ·   OHIO   ·   Freedom of Information   ·   July 28, 2006

Executive privilege narrowed in records case

  • The state Supreme Court better defined the gubernatorial privilege it ruled existed in April, allowing documents related to ‘Coingate’ to remain secret.

July 28, 2006  ·   Ohio’s Supreme Court narrowed the governor’s executive privilege Friday in a public records ruling that nonetheless keeps shrouded records related to an investigation of rare-coin investments made by the state Bureau of Workers’ Compensation.

The 5-2 ruling, the latest court action in a dispute between state Sen. Marc Dann, a Democrat, and Gov. Bob Taft, a Republican, came three months after the court ruled for the first time that Taft could claim a qualified executive privilege in response to an Ohio Public Records Act request. To obtain public documents for which a privilege could exist, the requester must show a “particularized need” for them, the court ruled in April.

The court in the latest decision said after reviewing the documents Dann had requested that they are not privileged and thus could be disclosed under the open records law. Yet the court refused to require their release because Dann had already received the records pertaining to the Bureau of Workers’ Compensation.

Taft had waived any executive privilege claim to those records previously.

“Our review verifies the governor’s statements that the documents submitted to the court for in camera review do not contain any materials concerning the [Bureau of Workers’ Compensation] that have not previously been disclosed to Dann,” Moyer wrote.

Dann said in a press release following the decision that in “essence, the Court has said the documents are public, but they’re not.”

Taft, also in a press release following Friday’s decision, said he was pleased the court had “more precisely defined” the parameters of Ohio’s executive privilege. “We will follow the guidelines the court has put forward in response to future requests,” he said.

The court’s ruling offers significant guidance for future public records requests of similar documents.

“The fact that a public record possessed by a governor has some privileged content does not justify a governor in withholding the nonprivileged portions of the public record from a Public Records Act requestor,” Moyer wrote. “Our review of the weekly reports . . . prompts us to clarify that many written communications to and from the governor simply do not concern ‘sensitive decisional and consultative responsibilities of the governor’ and have little if anything to do with gubernatorial policymaking or decisionmaking except in the most general way.”

Nor can a governor rely on executive privilege for records which build “the governor’s reservoir of useful knowledge available to every gubernatorial decision,” Moyer wrote.

Therefore, informational communications which are essentially status reports are not privileged, he wrote. For a privilege to apply, the communication must “relate directly to a specific decision required of or sought from the governor. It must be used by the governor in the process of arriving at a decision.”

For example, Moyer wrote, if a governor received reports about two bills in the legislature, and was attempting to decide which bill to support, that communication would be privileged.

However, if a memo to the governor merely apprised him status of the bills in the legislative process, that would not be privileged, Moyer wrote.

In a partial concurrence and partial dissent, Justice Paul Pfeifer expressed doubt about why the records were of such interest.

“Our in camera review of the records the governor sought to withhold reveals a collection of information so inane, so inconsequential, and so insignificant, that taken together it could not generate one interesting newspaper story.”

(State ex rel. Dann v. Taft)HB

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