Public Records Shielded by Attorney-Client Privilege



PUBLIC RECORDS PREPARED BY LAW FIRM MAY BE

SHIELDED FROM DISCLOSURE

By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

Public agencies will often try to avoid disclosing records by having those records prepared by attorneys. For instance, if an agency conducts an investigation, its investigative report is generally a public record which, upon request, must be provided to the requesting party. However, what happens when an agency retains a law firm to handle the investigation? Can the agency then refuse to disclose the ensuing investigation report on the basis that it is protected by the attorney-client privilege. The answer is now “yes.” This practice was recently sanctioned by the Ohio Supreme Court. In State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 2009-Ohio-1767, (April 21, 2009), the Supreme Court of Ohio ruled that an investigatory report prepared by a private law firm on behalf of a public agency is covered by the attorney-client privilege and is not subject to mandatory disclosure under the state’s Public Records Act.

In that case, the public entity (the Toledo-Lucas County Port Authority) retained a law firm to investigate allegations that an officer had engaged in an extramarital affair with a lobbyist employed by the agency and that the officer may have improperly funneled money to the lobbyist and used his influence to her advantage. The law firm prepared an investigative report. The report was distributed to the members of the agency’s board of directors during an executive session of a regularly scheduled meeting. The board members then voted to terminate the officer’s employment with the agency, and returned their copies of the report to the law firm.

When the Toledo Blade filed a public records request for the report, the agency denied the request, claiming that the report was exempt from disclosure under an exception in the public records act for documents covered by an attorney client privilege.

The Toledo Blade filed a lawsuit for the records, but the Supreme Court denied any relief, finding that the investigative report was covered by the attorney-client privilege, and stating as follows: “we hold that the port authority has established that the investigative report was related to attorney Grigsby’s rendition of legal services and is thus excepted from disclosure under the Public Records Act as material covered by the attorney-client privilege.”