NEWS MEDIA UPDATE · OHIO · Freedom of Information · April 17, 2006
Governor can keep some records secret
April 17, 2006 · Recognizing a qualified executive privilege for the first time in Ohio’s 200-year history, a divided state Supreme Court ruled Thursday that Gov. Bob Taft has the right to keep some of his records secret.
The 5-2 decision — which relied heavily on the presidential executive privilege recognized in the U.S. Supreme Court ruling in United States v. Nixon — sets a dangerous precedent for secrecy in Ohio, journalists and open government advocates said.
“It’s a disturbing and disappointing decision,” Frank Deaner, executive director of the Ohio Newspaper Association and president of the Ohio Coalition for Open Government, said in an interview. Reading a prepared statement, Deaner called secrecy “an incubator for wrongdoing.”
The ruling was the latest development in a scandal that has plagued Taft, a Republican, for a year. Last spring, The [Toledo] Blade revealed that the state’s Bureau of Workers’ Compensation had invested public money to purchase and sell rare coins. As much as $13 million is unaccounted for in the investment, and the manager of the program, a prominent GOP donor, has pleaded not guilty to charges of theft and money laundering.
In June, State Sen. Marc Dann filed a public records request to force the release of memos between the governor and senior members of his administration, including the former chief executive officer of the Bureau of Workers’ Compensation.
Dann, a Democrat who is running for attorney general, wants to determine the extent of the Republican governor’s knowledge about possible wrongdoing or mismanagement in the investments, which the press has dubbed “Coingate.” Although Taft initially refused to release any of the weekly memos Dann sought, he later released some documents but maintained that executive privilege did not require him to do so, according to media reports.
Dann asked the state high court for an order forcing Taft to release the documents. Because there was no Ohio precedent on executive privilege, the court relied heavily on the U.S. Supreme Court’s 1974 decision in the Nixon case, which recognized a presidential executive privilege for communications. In that case, President Richard Nixon tried to use the privilege to prevent the forced release of the Watergate tapes. Although the high court recognized that some presidential communications should be kept secret, it ruled that Nixon still had to release the tapes to a special prosecutor.
Writing for the majority in the Taft case, Chief Justice Thomas Moyer said granting governors a limited executive privilege to keep some policy-making records private “advances the same interests advanced by the analogous presidential privilege, including the ‘public interest in candid, objective, and even blunt or harsh opinions’ in executive decisionmaking.”
Moyer established a three-step process for requesting the release of such records. A governor first must claim the privilege and then the records’ requester must show a “particularized need” for disclosure. After that, it is up to the court to balance the need for disclosure with the public’s interest “in ensuring informed and unhindered gubernatorial decisionmaking.”
That flips the burden of disclosure from the government to the people of Ohio, Deaner said.
“Our law has always been based on the premise that something is public unless the public official can prove otherwise,” he said. “The way this decision is worded, the government documents are secret, and the burden is put on the requester to prove why they should be released.”
The court did not make a final decision on the memos, instead allowing Taft 15 days to claim the executive privilege. Dann then will have another 15 days to show that a “particularized need” for disclosure outweighs the governor’s claim of secrecy. At that time, the high court will decide which memos will be released.
In her dissent, Justice Alice Robie Resnick, the court’s only Democrat, said that because the majority opinion allows the governor to assert his privilege before anyone else has seen the records in question, the ruling “makes it possible for the governor to withhold the documents on the basis of a privilege that is not applicable in the first place.”
In a separate, strongly worded dissent, Republican Justice Paul E. Pfeifer said granting the governor privileges equal to those of the president goes too far.
The “governor emerges from this case with a communications privilege grossly out of scale with his own responsibilities and with the privileges accorded the other branches of government,” Pfeifer wrote.
He said politics, not the public good, motivated his Republican colleagues to find in favor of the governor.
“The idea that the governor seeks this privilege and that the majority undertakes this judicial grant for the good of the public is inconceivable,” he wrote. “This public records request relates to a serious state government scandal, and the factors that brought about the scandal — secrecy, unaccountability, and inside dealing — are the ‘privileged’ matters that this court would shield from public view.”
The majority’s decision has fueled criticism from those who accuse the court of acting as a legislative body, Deaner said.
“There’s nothing in the public records act that would indicate there is an executive privilege,” he said. “There is nothing in the Ohio Constitution. There is nothing in any other kind of legislation. The majority opinion was based almost solely on the U.S. Supreme Court cases having to do with Richard Nixon and his Watergate tapes. If they wanted to tie Bob Taft to additional scandal, there it is.”
The court’s ruling comes nines months after it ruled 5-2 that the Bureau of Workers’ Compensation must reveal specific prices it paid for rare coins bought as an investment with $50 million in public money.
(State ex rel. Dann v. Taft, Columbus, Ohio) — AB