State ex rel. Dann v. Taft

• Decision Date: 13 April 2006
• Docket Number: No. 2005-1222.,2005-1222.
• Parties: The STATE ex rel. DANN v. TAFT.
• Court: Ohio Supreme Court

Page 472

848 N.E.2d 472

109 Ohio St.3d 364

2006 Ohio 1825

The STATE ex rel. DANN v. TAFT.

No. 2005-1222.

Supreme Court of Ohio.

Submitted November 9, 2005.

Decided April 13, 2006.

COPYRIGHT MATERIAL OMITTED

Gittes & Schulte, Frederick M. Gittes, and Kathaleen B. Schulte, for relator.

Jim Petro, Attorney General; and Porter, Wright, Morris & Arthur, Kathleen M. Trafford, Bryan R. Faller, and Anne M. Hughes, for respondent.

Jeffrey M. Gamso and Carrie L. Davis, in support of relator for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

Scott A. Pullins, in support of relator for amicus curiae Ohio Taxpayers Association.

MOYER, C.J.

{¶ 1} This is an original action in mandamus filed by relator, Marc Dann, seeking a writ ordering respondent, Governor Bob Taft, to disclose certain weekly reports prepared for him by executive-branch officials. Dann, a member of the Ohio Senate, claims in a complaint filed in his individual capacity that the governor has a clear legal duty to disclose to Dann the weekly reports, pursuant to R.C. 149.43, the Public Records Act. The governor has filed a motion for protective order relative to Dann's discovery requests. Dann has filed a motion to compel discovery.

{¶ 2} Our decision on the merits, as well as disposition of these motions, is contingent upon determination of the following issue: may a governor of Ohio assert executive privilege as a legitimate basis for maintaining the confidentiality of documents prepared for his or her review? The issue of gubernatorial executive privilege is a matter of first impression in this court.

{¶ 3} We hold that a governor of Ohio possesses a qualified privilege by which communications to or from him or her will, under certain circumstances, be accorded confidentiality and deemed beyond the scope of discovery under the Rules of Civil Procedure as well as the Public Records Act. In addition to defining the scope of that qualified privilege, we establish a framework by which the validity of the governor's claim of executive privilege will be determined.

I Factual and Procedural Background

A The Governor's Weekly Reports

{¶ 4} The executive branch of state government comprises 18 state departments and over 200 boards, commissions, and authorities. These executive agencies are responsible for formulating policies, enforcing laws, and providing services to Ohio residents over a wide range of substantive areas. The cabinet agencies include the 18 state departments and seven other major boards or commissions, including the Bureau of Workers' Compensation. The governor employs executive assistants, who act as policy advisors in various matters and as liaisons to specific clusters of cabinet agencies. The governor's office uses several methods to communicate with subordinate executive officers to keep apprised of significant developments, policies, issues, and concerns occurring within the executive branch. Those methods include face-to-face meetings with agency employees, memoranda and correspondence, meetings between the executive assistants and agency personnel, telephone contacts, and e-mail.

{¶ 5} Cabinet directors and executive assistants to the governor also communicate with the governor's office through weekly reports. Cabinet directors prepare these short topical reports at the end of each week and send them to a person in the governor's office. The reports are available for review over the weekend before the governor's weekly policy meeting with his executive staff on Monday afternoons. At the end of each week, the governor receives a report from each executive assistant that advises him and his executive staff of the status of issues.

{¶ 6} The formats and styles of the weekly reports vary, with each cabinet director and executive assistant expected to use his or her best judgment to decide what topics to include and how detailed the discussion should be. The reports typically contain information concerning significant events and particular concerns, issues, or information that the cabinet directors and executive assistants believe should be brought to the attention of the governor. Many of the topics in the weekly reports are strictly informational and do not require any action by the governor, and some of the information is not sensitive, confidential, or proprietary.

{¶ 7} If a topic or issue requires a more detailed explanation or analysis, it is usually presented through some means other than the weekly reports, e.g., a specific memorandum on that issue or a meeting. In fact, cabinet members often withhold sensitive information from the weekly reports and use other means to communicate this information to the governor.

{¶ 8} In any week, one or more of the reports may require action by the governor in the form of advice, a recommendation, or a decision and may contain information that the governor considers sensitive and confidential. Weekly reports may also contain candid comments, opinions, criticism, and analyses by the cabinet director or executive assistant.

{¶ 9} The weekly reports constitute one institutionalized, written means of communication used by the governor. They are distributed to the governor, his executive staff, and some administrative personnel. There are no written guidelines or policies in the governor's office concerning the dissemination of the weekly reports. Copies of weekly reports may be released to the public when requested if the request addresses a particular topic or agency and a specific, narrow period of time, and the matter is not otherwise deemed to be privileged. The governor's office does not release weekly reports if the request is not limited to a particular topic, agency, or period of time.

B Case History

{¶ 10} In the spring of 2005, several Ohio newspapers reported that questionable investment practices had produced a significant loss in the employer-contribution fund of the Bureau of Workers' Compensation. On June 13, 2005, relator requested from respondent, Ohio Governor Bob Taft, copies of "[a]ll weekly memoranda or other periodic reports required by statute or office procedure or practice from former Bureau of Workers' Compensation Administrator and CEO James Conrad to the Office of Governor from the years 1998-2005." The governor disclosed the requested records for the period from August 2004 to June 15, 2005, but refused to provide copies of Conrad's weekly reports from 1998 until August 2004. The governor claimed that these weekly reports "are protected by the executive privilege."

{¶ 11} On June 16, 2005, Dann, as a private citizen, requested that the governor provide copies of additional records, including weekly reports prepared by James Samuel, for the years 1998 to 2005. As the governor's executive assistant for business and industry, Samuel acted as a liaison between the governor and the bureau.

{¶ 12} The governor reaffirmed his decision to withhold most of the requested reports from Conrad to the governor's office and further denied Dann's request for copies of requested reports from Samuel to the governor because of "executive privilege and deliberative process privilege."

{¶ 13} On that same day, Dann filed this action for a writ of mandamus to compel the governor to make the requested records available for inspection and copying under R.C. 149.43, the Public Records Act. According to Dann, he had requested the records "to obtain more detailed information regarding the governor's awareness of the investment practices of the Ohio Bureau of Workers' Compensation * * * and its related entities."

{¶ 14} We granted an alternative writ and ordered an accelerated evidence and briefing schedule. 106 Ohio St.3d 1457, 2005-Ohio-3519, 830 N.E.2d 1166. Dann served notices of deposition on the governor, Conrad, Samuel, Jon Allison (the governor's chief of staff), Brian Hicks (the governor's former chief of staff), and Mark Nedved (the former legislative liaison for the bureau).

{¶ 15} The governor moved for a protective order to preclude the taking of the depositions, citing government-official, executive, and deliberative-process privileges. He instead offered Dann the opportunity to depose Kate Bartter, the governor's chief policy advisor and director of cabinet affairs. In that capacity, Bartter is the official custodian of the weekly reports, and she has personal knowledge of their general content and use in the governor's office. According to the governor, Bartter would be able to provide Dann with "general, non-privileged information as to the contents of weekly reports, the distribution of the weekly reports within the office, and the general use and function of the weekly reports within the executive branch."

{¶ 16} The governor moved to dismiss Dann's complaint, claiming that he had produced documents in response to Dann's requests and that the action was thus moot. But the Samuel reports that the governor did provide to Dann contained redactions, and over 200 other Samuel reports were withheld based on the governor's conclusion that they did not contain information relating to the bureau from 1999 to 2005.

{¶ 17} We denied the governor's motion to dismiss and stayed the filing of evidence and briefs until further order. 106 Ohio St.3d 1475, 2005-Ohio-3977, 832 N.E.2d 60. We also held in abeyance the governor's motion for protective order and Dann's motion to compel discovery. 106 Ohio St.3d 1495, 2005-Ohio-4370, 833 N.E.2d 299. We stayed all further discovery and ordered the parties to brief the following issues:

{¶ 18} "1) Whether the Governor of Ohio may claim an executive privilege to prevent disclosure of documents provided to the Governor by staff members or other executive-branch officials.

{¶ 19} "2) Whether the Governor of Ohio and other high-ranking government officials may claim an executive privilege, or other justification, to prevent discovery by deposition or as otherwise authorized by the Ohio Rules of Civil...