Woodman v. City of Lakewood, 53647

Decision Date31 May 1988
Docket NumberNo. 53647,53647
Citation44 Ohio App.3d 118,541 N.E.2d 1084
PartiesWOODMAN, Appellant, v. CITY OF LAKEWOOD et al., Appellees. *
CourtOhio Court of Appeals

Syllabus by the Court

The attorney-client privilege establishes an exception to disclosure under the Ohio Public Records Law, R.C. 149.43, of records consisting of communications between attorneys and government clients, even when such records do not fall within the "trial preparation" exception set forth in R.C. 149.43(A)(4), since the release of such records is "prohibited by state law" (R.C. 149.43[A] ).

Mark Schlachet, Cleveland, for appellant.

Calfee, Halter & Griswold, Mark I. Wallach and William E. Coughlin, Cleveland, for appellees.

RANDALL L. BASINGER, Judge, Court of Common Pleas.

Plaintiff Robert P. Woodman appeals from a summary judgment for the defendant city and its law director, William E. Blackie, Jr., in this mandamus action for the disclosure of a public document under the Ohio Public Records Law, R.C. 149.43. Because the defendants released the contested document prior to the disposition of their motion, the plaintiff seeks only to enforce the prescribed forfeiture penalty for the defendant's dilatory disclosure. See former R.C. 149.99 (repealed during the pendency of this appeal in Section 2, Am.Sub.S.B. No. 275, 142 Ohio Laws ----, eff. Oct. 15, 1987) (for text of former R.C. 149.99, see 141 Ohio Laws, Part II, 2761, 2775).

The plaintiff in his sole assignment of error claims that the defendants were not entitled to summary judgment as a matter of law. He concedes that the requested document may have been encompassed by an attorney-client privilege between the city and its outside counsel. However, the plaintiff argues that the attorney-client privilege does not constitute an exception to the disclosure requirements of the Ohio Public Records Law. We disagree, and we affirm the judgment of the trial court.


The plaintiff filed a written request with the defendant city for the disclosure of a legal memorandum. The memorandum had been prepared three years earlier by outside counsel at the law director's request. The law director denied the request for disclosure, asserting that the memorandum was a privileged communication between the city and its counsel.

Eleven weeks later, after continued refusals by the city to make the record available for his review, the plaintiff filed his complaint against the city and its law director. The plaintiff sought a court order to disclose the document pursuant to R.C. 149.43 and penalties for the city's failure to disclose as provided in former R.C. 149.99.

The defendants moved for summary judgment, contemporaneously releasing the legal memorandum for public inspection. In support of the motion, the defendants attached the law director's affidavit which averred: "That legal opinion communicated legal advice to Lakewood's governing officials, and such legal advice was, and has been, kept confidential by the city government of Lakewood." The plaintiff moved for partial summary judgment, reserving the determination of the appropriate penalty for a later proceeding.

The trial court granted the defendants' motion for summary judgment and denied the plaintiff's motion. From this decision the plaintiff now appeals.


It is our view that the Ohio Public Records Law clearly exempts the disclosure of records subject to the attorney-client privilege as a recognized exception prohibited by state and federal law. Therefore, we believe the motion for summary judgment was correctly granted and hereby affirm the trial court's ruling.

An affidavit by appellees has asserted, which has not been controverted by appellant, that the materials sought to be disclosed in the within case are encompassed under the attorney-client privilege. The question raised is whether the attorney-client privilege establishes an exception to disclosure under the Ohio Public Records Law of records consisting of communications between attorneys and government clients where such communication does not fall within the delineated "trial preparation" exception of R.C. 149.43(A)(4).

The rather straightforward issue becomes whether the Ohio Public Records Law exemption precluding disclosure of a record "the release of which is prohibited by state or federal law" (R.C. 149.43[A] ) encompasses those records covered under the attorney-client privilege. In reviewing the construction of the statute, we feel the legislature has sought to maintain those protections already in place, thereby precluding unwarranted disclosure of documents and materials, including those covered by the attorney-client privilege. A finding to the contrary would obfuscate the clear language of the statute and would create an anomaly whereby the attorney-client privilege of public institutions, and the relationships intended to be protected thereby, would not only be chilled but indeed, at times, would be severely hampered.

The common-law attorney-client privilege is firmly established in Ohio. See In re Martin (1943), 141 Ohio St. 87, 25 O.O. 225, 47 N.E.2d 388, paragraph six of the syllabus; Spitzer v. Stillings (1924), 109 Ohio St. 297, 302, 142 N.E. 365, 366. The importance of the attorney-client privilege in Ohio is underscored by the common law embodiment of the privilege in the state's rules and statutes.

Confidential attorney-client communications are not subject to discovery. See Civ.R. 26(B)(1) (discovery permitted "regarding any matter, not privileged"). In addition, attorney-client communications are protected by a testimonial privilege guaranteed by statute. See R.C. 2317.02(A). Further, an attorney's disclosure of a client's confidences or secrets constitutes a violation of this state's Disciplinary Rules. See DR 4-101. Given the existence of the common-law attorney-client privilege, records subject to that privilege are exempt from the operation of R.C. 149.43 as a disclosure "prohibited by state * * * law." R.C. 149.43(A)(1). An application of federal law as discussed later in this opinion leads to a similar result.

Appellant's construction of the statute would disrupt the fiduciary relationship between the government client and the attorney. The very purpose of the attorney-client relationship is to encourage full and frank communications between client and counsel. Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584; Taylor v. Sheldon (1961), 172 Ohio St. 118, 120-121, 15 O.O.2d 206, 207, 173 N.E.2d 892, 894; Spitzer v. Stillings, supra; 8 Wigmore, Evidence (McNaughton Rev.Ed.1961) 545, Section 2291; see, also, Ohio Code of Professional Responsibility EC 4-1.

Without the protection of the attorney-client privilege, governmental clients may be dissuaded from fully disclosing material information to their attorneys in apprehension of future public disclosure. Thus, an attorney would be handicapped in attempting to dispense appropriate legal counsel. Appellant concedes the chilling effect such a finding would have. This practical result was clearly not intended by the legislature.

Appellant argues that the statutory exclusion for trial preparation materials acts as a restriction on the exemption sought here. He contends, in light of the specifically delineated trial preparations exception, that the legislature, by the omission of a specific attorney-client privilege exception, chose not to include the attorney-client privilege. We find appellant's argument to be without merit for the reasons which follow.

The case of In re Antitrust Grand Jury (C.A. 6, 1986), 805 F.2d 155, 163, is dispositive of this issue as raised by appellant, recognizing "[t]here may be some overlap, but the work product doctrine 'is distinct from and broader than the attorney-client privilege,' " quoting from United States v. Nobles (1975), 422 U.S. 225, 238, at fn. 11, 95 S.Ct. 2160, 2170, at fn. 11, 45 L.Ed.2d 141. In the within case, appellees do not invoke the "trial preparation" exception of the Ohio Public Records Law, but rather rely upon the common-law attorney-client privilege. The two doctrines are distinct from one another, and clearly not exclusive in their applicability. We feel that the legislature chose not to specifically include the privilege language in the statute, in that the exception is clearly established in law and therefore covered by the general exception.

We disagree with the reasoning of the appellant in the case at hand and his reliance upon Montgomery Cty. Bd. of Commrs. v. Pub. Util. Comm. (1986), 28 Ohio St.3d 171, 175, 28 OBR 262, 266, 503 N.E.2d 167, 170, in light of In re Antitrust Grand Jury, in a situation where, as in the present case, a general exception exists and is applicable to the materials in question.

Appellant also argues that allowing for the attorney-client privilege as an exception will overwhelm the Ohio Public Records Law. This argument is clearly without merit in light of the numerous states and the federal government which recognize the attorney-client privilege as an exception to their respective public records law.

We also rely on State, ex rel. Jacobs, v. Prudoff (1986), 30 Ohio App.3d 89, 30 OBR 187, 506 N.E.2d 927, in which the Court of Appeals for Lorain County, in remanding the cause on a factual issue, gleans from the Federal Freedom of Information Act the nature of applicable exemptions. The court in that case stated as follows:

"Furthermore, the Federal Freedom of Information Act (Section 552, Title 5, U.S. Code) includes the following exception to a general rule of disclosure for all information submitted to federal agencies * * *." Id. at 93-94, 30 OBR at 192, 506 N.E.2d at 932.

We follow the same reasoning of the Lorain County Court of Appeals and apply the federally recognized exception relating to attorney-client privilege.

The Freedom of Information Act, Section 552(b)(5), Title 5, U.S. Code, also provides for an...

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