541 N.E.2d 1084 | Ohio Ct. App. | 1988
Lead Opinion
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.
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.
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.
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 *120 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.
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.
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.
The common-law attorney-client privilege is firmly established in Ohio. See In re Martin (1943),
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.
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),
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),
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),
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 numeous 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),
"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,
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 exemption which would exempt inter-agency or intra-agency memorandums or letters not available by law to a party other than an agency in litigation with the agency. The courts have interpreted that this exemption of materials includes the *122
attorney-client privilege, stating in National Labor RelationsBd. v. Sears, Roebuck Co. (1975),
"* * * The Senate Report states that Exemption 5 `would include the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties,' S. Rep. No. 813, p. 2 * * *."
The court in Mead Data Central, Inc. v. United States Dept. ofthe Air Force (C.A.D.C. 1977),
"* * * We agree that the attorney-client privilege has a proper role to play in exemption five cases. The policy objective of that privilege is certainly consistent with the policy objective of the exemption. Exemption five is intended to protect the quality of agency decision-making by preventing the disclosure requirement of the FOIA [Freedom of Information Act] from cutting off the flow of information to agency decision-makers. Certainly this covers professional advice on legal questions which bears on those decisions. The opinion of even the finest attorney, however, is no better than the information which his client provides. In order to ensure that a client receives the best possible legal advice, based on a full and frank discussion with his attorney, the attorney-client privilege assures him that confidential communications to his attorney will not be disclosed without his consent. We see no reason why this same protection should not be extended to an agency's communications with its attorneys under exemption five.
"Other courts have also found that exemption five encompasses the attorney-client privilege. In NLRB v. Sears, Roebuck Co.,
although the Supreme Court rested its holding on the narrower privilege for an attorney's work product, which is restricted to material prepared in anticipation of litigation, it recognized that the attorney-client privilege is also included in exemption five. Porter County Chapter of Izaak Walton League of America v.AEC,
The court in Mead remanded the cause for a determination of whether, inter alia, the necessary elements of the attorney-client privilege were present. In the instant case, there is no argument that attorney-client privilege would be applicable, in that the communication in question was a confidential one otherwise covered by privilege.
Finally, appellant's interpretation of R.C.
For these reasons we conclude *123 that the trial court correctly determined that attorney-client privilege constitutes an exemption to the disclosure requirements under the Ohio Public Records Law exception of materials the release of which is prohibited by state or federal law. Therefore, we affirm the judgment of the trial court.
Judgment affirmed.
PARRINO, J., concurs.
MATIA, P.J., dissents.
RANDALL L. BASINGER, J., of the Court of Common Pleas of Putnam County, and THOMAS J. PARRINO, J., retired, of the Eighth Appellate District, sitting by assignment.
Dissenting Opinion
I respectfully dissent from the majority opinion.
A reviewing court must follow the standard stated in Civ. R. 56(C) to determine whether a trial court erred in granting summary judgment. Petrey v. Simon (1984),
"`(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.' * * *" Petrey v. Simon, supra, quoting fromTemple v. Wean United, Inc. (1977),
Contrary to the appellees' contention, the moving party is not entitled to summary judgment merely by showing through uncontroverted affidavits that no genuine issue of material fact exists. Summary judgment shall be entered only where "appropriate" and where the moving party is entitled to judgment as a matter of law. Civ. R. 56; Toledo's Great Eastern ShoppersCity, Inc. v. Abde's Black Angus Steak House No. III, Inc.
(1986),
In this case the appellant contends that the appellees were not entitled to judgment as a matter of law. The appellant does not dispute that the requested legal memorandum ordinarily may well have been protected under an attorney-client privilege. The appellant simply argues that the attorney-client privilege does not constitute a ground for the denial of a request for documents under R.C.
The Ohio Public Records Law provides in relevant part:
"(A) As used in this section:
"(1) `Public record' means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, exceptmedical records, records pertaining to adoption, probation, andparole proceedings, records pertaining to actions under section
"* * *
"(4) `Trial preparation record' means any record that contains information that is specifically compiled in *124 reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.
"(B) All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in such a manner that they can be made available for inspection in accordance with this division." (Emphasis added.)
In construing this provision, the custodian of public records, here the city and its law director, bears the burden of showing that the requested information is not subject to disclosure.Dayton Newspapers, Inc. v. Dayton (1976),
R.C.
Besides, the "release" of the requested document prior to the trial court's ruling on the motion for summary judgment raises the question of the sufficiency of the argument that the document was subject to the attorney-client privilege. The statute does not provide a specific exception for the attorney-client privilege. Compare California Public Records Act, Section 625(K), Cal. Governmental Code (West 1987) (exception for records "relating to privilege"); Colorado Open Records Act, Section
Further, the construction given comparable legislation in other states is given great weight in construing Ohio statutory provisions. Cf. Schneider v. Laffoon (1965),
The Arkansas Freedom of Information Act, Sections 25-19-101 to 25-19-107, Ark. Code Ann. (1987), contains no trial preparation exception. Moreover, because the Act contains no express attorney-client privilege exception as one of the enumerated exceptions to disclosure, the Supreme Court of Arkansas held that litigation files are open to public review. Scott v. Smith
(1987),
The cases from the state of New York cited by the appellees are unpersuasive. The New York Freedom of Information Law, Public Officers Law, Sections 84 to 90 (McKinney 1988), like the Arkansas statute, provides no express protection for attorney-client communications. Contrary to the holding of the Arkansas court, the court in Steele v. New York Dept. of Health
(1983),
The majority view in this case, compared to the hereinabove referred to holdings of our sister states, castrates Ohio's Public Records Law by applying an attorney-client privilege which is inappropriate in this case. Contrary to the appellees' contention, an attorney's compliance with the Ohio Public Records Law would not violate the Ohio Code of Professional Responsibility. The code expressly provides that an attorney may disclose his client's confidences and secrets as required by law. DR 4-101(C)(2). Further, the Ohio Public Records Law does not conflict with Ohio's attorney-client privilege as embodied in R.C.
Finally, note that the contested memorandum dealt with the issue of whether an action by an elected official would violate this state's ethics in government laws. Certainly this issue was of paramount importance to the citizens of the appellees' community. The memorandum is precisely the type of material intended by the General Assembly to be subject to prompt public disclosure.
Accordingly, I would reverse the judgment of the trial court and remand for further proceedings.