Executive Privilege and Public Records

I am of an age that, when I see U.S. v. Nixon cited as precedent, I think, "Uh oh, things are going to end badly." That is exactly the authority by which the Ohio Supreme Court handed Gov. Bob Taft

I am of an age that, when I see U.S. v. Nixon cited as precedent, I think, "Uh oh, things are going to end badly." That is exactly the authority by which the Ohio Supreme Court handed Gov. Bob Taft an executive privilege. Let's study this.

In spring 2005, several Ohio newspapers began to report about significant losses in the employer contribution fund at the Bureau of Workers' Compensation (BWC) due to questionable investment practices — later dubbed the Coingate scandal. In June 2005, State Sen. Marc Dann made a public-records request to the governor's office for weekly reports about the BWC prepared for the governor by certain executive branch officials.

Weekly reports can contain both sensitive and purely informational topics. Taft initially refused to turn over most of these weekly reports, claiming a privilege to withhold them. Dann filed what is called a "writ of mandamus," which is a special procedure filed directly in the Ohio Supreme Court, to compel the disclosure.

Some records are exempt from disclosure by the Public Records Act itself. For example, privileged material is exempt from disclosure under the act because state law prohibits the compelled disclosure of privileged material.

Taft argued that the documents Dann requested were exempt from disclosure because the Ohio Constitution granted him an absolute executive privilege over gubernatorial communications.

All the justices on the high court rejected that argument. But the court was willing to create a qualified executive privilege, despite the absence of any statutory, common law or constitutional basis for such a privilege in Ohio.

Relying heavily on U.S. v. Nixon, in State ex. rel. Dann v. Taft (Dann I), on April 13 of this year a 5-2 majority of the Ohio Supreme Court found that, because the governor possesses authority comparable to the president, the governor should have the same qualified privilege that was accorded to the president in U.S. v. Nixon. The majority opinion, written by Chief Justice Thomas Moyer, concluded that the governor has a qualified executive privilege that "protects communications to or from the governor when the communications were made for the purpose of fostering informed and sound gubernatorial deliberations, policy-making and decision-making." This, opined the court, was for the public's benefit, not any particular governor's.

After creating the qualified privilege, the court established a three-step process to determine whether the privilege applies and whether it can be overcome. First, the governor must formally assert the privilege and is entitled to a presumption that the requested documents are privileged. But the governor doesn't have to provide any kind of description of these documents — just his word that they're privileged. This proved to be tricky when the court subsequently tried to apply what it had just created.

Next, the requester must make a showing of "particularized need" for the disclosure. Particularized need seems to mean something legally specific to that individual, rather than just the general interest of a citizen. In an ordinary public-records request, any citizen may make the request and need not state any need or reason. So this particularized need requirement is different and sets a very high bar for a requester to meet.

Only if the requester has shown a particularized need would the court then review the documents in camera — in private — to weigh the need for disclosure against the need for "unhindered decision-making." Only when the balancing weighs in favor of disclosure is the privilege overcome.

Justices Alice Robie Resnick and Paul Pfeifer dissented from Dann I. Reminding the majority that Nixon lost in U.S. v. Nixon, Pfeifer went eloquently ballistic.

"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."

After all was said and done in Dann I, the Court gave the governor 15 days to assert the privilege and Dann 15 days to assert his particularized need to review the documents. Each did.

The governor stated in an affidavit that he'd already given Dann all parts of the weekly reports dealing with the BWC. He claimed executive privilege over redacted parts of the previously disclosed weekly reports and over other undisclosed weekly reports. Dann claimed the governor still had documents related to the BWC scandal. He asserted his particularized need as an employer who has paid into the workers' compensation fund, thus giving him a special interest in its proper management, and as a taxpayer considering a taxpayer's action "to enjoin illegal contracts or other unauthorized use of public funds and, where appropriate, to recoup the lost funds."

In Dann II, decided June 13, the Court realized it had a factual dispute on its hands: Did any of the undisclosed material relate to the BWC? It concluded it had to resolve this factual dispute before anything else could occur. The only way to do that was to look at the documents.

Bear in mind that under the test it created in Dann I, the court wouldn't normally even look at the documents unless the requester had shown a particularized need for them. But here, in the very first application of the test, it realized it had to look at the undisclosed material to see if any of it related to the BWC. This is the problem with letting the governor self-declare documents as privileged, without any description, justification or oversight — the chief point in Resnick's dissent.

This led to Dann III, decided July 21. When it reviewed the documents, the court agreed with the governor that none of the undisclosed material related to the BWC. The 5-2 majority — the same line-up as Dann I — conceded that Dann's status as an employer who contributed to the workers' compensation fund was probably enough to meet the particularized need standard.

But because the court found the governor hadn't withheld any documents related to the BWC, Dann's particularized need for those documents became irrelevant. The court could have quit there, and probably should have. Instead, in an opinion again written by the chief justice, the court decided to "clarify" the scope of the new privilege, further define particularized need and review the documents Taft claimed were privileged.

Appearing to backpedal, the court held that, to fall within the scope of the privilege, the communications had to be more than just informational and must "possess some attribute of being 'advisory, investigatory, decisional, consultative, deliberative or sensitive' in nature."

All seven justices agreed that the documents that Taft claimed were privileged were not, but were just ordinary public records. But the majority still found Dann couldn't have those documents. Curiously, or perhaps as a caution for future requesters, the court found Dann's status as a taxpayer alone wasn't enough to meet its particularized-need test for the documents. In addition, the court found the withheld documents were beyond the scope of what Dann had requested. So the majority rejected the governor's invocation of his new privilege but denied Dann's request. Alice in Wonderland, anyone?

In dissent on this point, Resnick was quick to jump on the flaw in this logic. Since the majority found the non-disclosed records weren't privileged, Dann shouldn't need to make any showing of particularized need to get them. Both she and Pfeifer believed Dann's public-records request covered all the documents the court had reviewed, and he should get them all because they weren't privileged.

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.