746 N.E.2d 1139 | Ohio Ct. App. | 2000
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *151
"The trial court erred in failing to find that the documents in question are protected by the attorney client privilege and are, therefore, excepted from the definition of `public records' and exempt from disclosure under R.C. §
149.43 (A)(1)(p)."
The only evidence offered in this case reveals that the Rossford Arena Amphitheater Authority is a nonprofit corporation organized for the purpose of constructing an arena/amphitheater complex in Rossford, Wood County, Ohio. Financing of the arena/amphitheater may be carried out, in part, through the issuance of bonds. Thus, appellants engaged the services of Chapman and Cutler, a bond law firm based in the state of Illinois, to draft certain bond documents. These included a proposed "Trust Indenture," a proposed "Deed of Trust" and a proposed "Assignment of Contracts to Trustee" for circulation to the Rossford Arena and Amphitheater Authority and "financing team members for the proposed bond issue." In addition, Chapman and Cutler formulated, for the bond underwriter, the city of Rossford and the "financing team members for the proposed bond issue," a "Preliminary Official Statement" in connection with the bond offering. Arthur Andersen LLP prepared a "Market and Financial Analysis of the Multi-Purpose Sports Entertainment Arena/Amphitheater to be located in Rossford, Wood County, Ohio" for a firm acting as a consultant to the Rossford Economic Growth Corporation.
In April 1999, appellee, Benesch, Friedlander, Coplan Aronoff, LLP, requested inspection of alleged public records related to the creation and operation of the Rossford Economic Growth Corporation and the Rossford Arena Amphitheater Authority. Even though appellants made most of the requested records avail able to appellee, they refused inspection of the documents related to the issuance of bonds and financial analysis.
On April 29, 1999, appellee filed a petition for writ of mandamus asking the court to order appellants to make avail able for inspection and copying "`any documents related to the issuance of bonds, debt obligations, borrowing of funds, *152
financing or underwriting activities relating to'" the Rossford Arena Amphitheater Authority. Appellee subsequently filed a motion to produce the requested records for an in camera inspection by the court. In their memorandum in opposition, appellants argued, among other things, that the attorney-client privilege exempted the preliminary drafts of legal documents related to the issuance of the bonds from disclosure under R.C.
The common pleas court held a hearing on appellee's motion and decided to (1) allow appellants to file an answer before issuing any type of writ and (2) require appellants to file the disputed documents under seal for an in camera inspection. Appellants complied with the court's order.
On May 28, 1999, the trial court granted appellee's petition as to the drafts of bond documents. The court, relying on State ex rel. District 1199 Health Care and Social ServiceUnion v. Gulyassy (1995),
"In this case, the particular documents are financial records needed to accomplish bond financing of this particular project. Once these documents were submitted to the public body, Relator herein, they are no longer available under the attorney-client privilege as they become public records under consideration by a public body."
The court held that the market and financial analysis report was prepared for a private firm and, as such, was not a public record.
In their sole assignment of error, appellants assert that the trial court erred in granting appellee's petition for writ of mandamus.
Mandamus is the appropriate remedy to compel compliance with R.C.
A "public record" is any record that is kept by any public office, provided that none of the exceptions delineated in R.C.
Apparently, in relying on Gulyassy, the trial court agreed with appellee's first and second arguments. In Gulyassy, the relators sought drafts of proposed amendments to R.C. Chapter 4117, as prepared by the Ohio Office of Collective Bargaining ("OCB") and "circulated within the office and to other state departments, including to people who were not acting as agents, employees or representatives of OCB." Id. at 732-733. The Franklin County Court of Appeals found that the drafts were records within the meaning of R.C.
To reiterate, we start with the premise that the proposed bond instruments1 are records, as defined in R.C.
In State ex rel. Thomas v. Ohio State Univ. (1994),
The burden of showing that testimony, or documents, allegedly protected under the doctrine of privileged attorney-client communications is on the party seeking to exclude them.Peyko v. Frederick (1986),
In support of the contention that the preliminary bond documents are exempt under the attorney-client privilege, appellants submitted the affidavits of *155 the attorneys who prepared the documents. David Williams, who prepared the proposed Trust Indenture, Deed of Trust and Assignment of Contracts avers that the bond documents are based on confidential conversations with the client, Rossford Arena and Amphitheater Authority, and that the documents are "incomplete, preliminary, subject to change and not intended for distribution to the public." Charles Jarik, in his affidavit, vows that the draft Preliminary Official Statement is based on confidential communications with the underwriter and is "incomplete, preliminary, subject to change and not intended for retention" by the city of Rossford or the Rossford Arena and Amphitheater Authority. Our individualized scrutiny of the disputed documents discloses that they consist of the confidential information supplied to the attorneys by their clients coupled with legal advice and opinions, that is, legal proposals as to the substance of the bond instruments, based on that confidential information. Both affidavits state that the circulation of the preliminary documents was limited to the Rossford Arena and Amphitheater Authority, the underwriter and "financing team members" and would be treated as confidential.2
Nonetheless, despite the fact that the affidavits establish that the proposed bond documents contain confidential information and legal advice, appellee asserts, and the trial court agreed, that the attorney-client privilege is inapplicable because the governmental clients in this case intend to release the bond documents, in some form, to members of the public. Since it protects only information that a client intends to remain confidential, appellee concludes that the attorney-client privilege is inapplicable in this situation. See In re GrandJury Proceedings (C.A. 4, 1984),
However, appellants cite to federal cases in which the courts determined that preliminary drafts of client communications and legal advice that are intended to be made public are protected by the attorney-client privilege. Only those portions of the drafts, if any, that are made public are not covered by the privilege. See Schenet v. Anderson (E.D.Mich. 1988),
As a result, appellee had no legal right to inspect and copy these documents and appellants had no legal duty to afford them that opportunity. Thus, the trial court did err in granting appellee's petition for writ of mandamus, and appellants' sole assignment of error is found well-taken. The judgment of the Wood County Court of Common Pleas is reversed. Appellee is ordered to pay the costs of this appeal.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
_______________________________ MELVIN L. RESNICK, J. JUDGE
JAMES R. SHERCK, J., RICHARD W. KNEPPER, P.J., CONCUR.