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Limited Executive Privilege Recognized for Governor

2005-1222. State ex rel. Dann v. Taft, 2006-Ohio-1825.
In Mandamus. See opinion.
Moyer, C.J., Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Resnick and Pfeifer, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-Ohio-1825.pdf

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(April 13, 2006) Citing the U.S. Supreme Court's recognition of a qualified executive privilege for the president, other states' recognition of a qualified executive privilege for their governors, and the established confidentiality in Ohio for certain records in the legislative and judicial branches, the Supreme Court of Ohio in a ruling announced today recognized for the first time a qualified executive privilege for the governor of Ohio that allows for the withholding from public disclosure of communications to or from the governor when the communications are made for the purpose of fostering informed and sound policymaking.

The Court ruled the governor's assertion of executive privilege creates a presumption that communications made for this purpose are not subject to disclosure but that this presumption can be overcome when the requestor of the communications can demonstrate a “particularized need to review the communications and that that need outweighs the public's interest in according confidentiality to communications made to or from the governor.”

The 5-2 ruling came in a case brought by Sen. Marc Dann against Gov. Bob Taft seeking to order the deposition of the governor and members of his executive staff and the release of certain documents related to the investment program of the Bureau of Workers' Compensation. The Court in today's decisions did not rule on the underlying question of the depositions and the release of the records, but instead ordered that Taft has 15 days to assert a claim of qualified executive privilege that would preclude the depositions and records' release. Dann has 15 days after Taft's filing to demonstrate to the Court why he has a particularized need that outweighs the public's interest in according confidentiality to the governor in this case.

The manuscript of the decision was posted in draft form on the Court's Web site, subject to further editing. It is available for download at http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-ohio-1825.pdf.

In June 2005, in connection with reported financial losses suffered by the Ohio Bureau of Workers' Compensation (BWC) through investments in rare coin funds managed by Thomas E. Noe of Toledo, State Sen. Dann submitted a public records request to the office of Gov. Bob Taft. Dann demanded that Taft provide him with copies of all weekly reports filed with the governor's office by former BWC Administrator James Conrad from 1998 through 2005.

Through his legal counsel, the governor advised Dann that the reports he requested were exempt from disclosure under the Public Records Act because they were privileged communications between the governor and his top advisers. In light of the ongoing BWC controversy, the governor's office advised Dann that it would waive its privilege to some of the requested documents, and forwarded copies of Conrad's weekly reports to the governor from August 2004 through June 2005.

Several days later, Dann submitted new record requests. One of them sought copies of all weekly reports submitted to the governor between 1998 and 2005 by Jim Samuel, an executive assistant to the governor who served as his liaison with BWC and several other cabinet-level agencies. On July 6, 2005, counsel for the governor notified Dann that the requested Samuel documents would not be provided, again asserting that the reports were exempt from disclosure under the Public Records Act because of executive privilege. Later that day, Dann filed an action in mandamus asking the Supreme Court to reject the governor's claim of executive privilege and order Taft to provide copies of the requested documents. Dann also asked the Court to order the governor's office to comply with discovery motions in which Dann sought to compel the governor and several of his top staff to appear in person and be deposed by Dann regarding their knowledge of the Noe coin fund investments prior to 2005.

The Court ordered the parties to prepare written briefs and heard oral arguments on two issues: 1) Whether the governor may assert a claim of executive privilege to prevent disclosure of reports provided to the governor by staff members and heads of executive branch agencies; and 2) Whether the governor or other high-ranking government officials may assert a claim of executive privilege or other justification to avoid discovery by deposition in civil lawsuits.

In today's decision, the Court rejected Taft's claim that the Ohio Constitution establishes a broad-based executive privilege. “Section 6, Article III does not include language warranting the conclusion that information provided to the governor pursuant to that section should be considered proprietary to him or otherwise confidential,” wrote Chief Justice Thomas J. Moyer for the majority. “We therefore reject the governor's attempt to create what would amount to an absolute privilege for gubernatorial communications based on Section 6, Article III.”

However, the majority found that: “[A] governor of Ohio has qualified gubernatorial-communications privilege that protects communications to or from the governor when the communications were made for the purpose of fostering informed and sound gubernatorial deliberations, policymaking and decisionmaking. This qualified gubernatorial-communications privilege is overcome when a requester demonstrates that the requester has particularized need to review the communications and that that need outweighs the public's interest in according confidentiality to communications made to or from the governor.”

Quoting from the U.S. Supreme Court decision (United States v. Nixon) that in 1973 established a similar executive privilege for the president, Moyer wrote: “‘A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.'”

The majority opinion in today's decision went on to state: “We have found no more precise and persuasive statement of the rationale for executive privilege than these words in the unanimous opinion of the Supreme Court of the United States. The rationale applies with equal force to the chief executive official of a state.

“We agree with the unassailable premise established in Nixon, and reiterated in federal and state case law, that the public interest is served by allowing a chief executive officer of a state or the federal government to receive information, advice, and recommendations unhampered by the possibility of compelled disclosure of every utterance made, and every piece of paper circulating, in the governor's office.

“The people of Ohio have a public interest in ensuring that their governor can operate in a frank, open, and candid environment in which information and conflicting ideas, thoughts, and opinions may be vigorously presented to the governor without concern that unwanted consequences will follow from public dissemination. It is for the benefit of the public that we recognize this qualified privilege and not for the benefit of the individuals who hold, or will hold, the office of governor of the state of Ohio.”

Moyer's opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O'Connor, Terrence O'Donnell and Judith Ann Lanzinger.

Justices Paul E. Pfeifer and Alice Robie Resnick entered separate dissents.

Frederick R. Gittes, 514.222.4735, for Senator Marc Dann.

Kathleen M. Trafford, 614.227.1915, for Governor Bob Taft.