November 29, 2011
Privilege Trumps Public Records Act Discovery Claim
From the web page of the Ohio Supreme Court:
In a 7-0 decision announced today, the Supreme Court of Ohio declined to issue a writ of mandamus compelling a school district to provide copies of requested documents to a parent involved in a lawsuit against the district. The Court based its ruling on a finding that the requested documents were subject to the attorney-client privilege between the district and its lawyers, and therefore were not subject to disclosure under the state Public Records Act.
Angela Dawson, the mother of two students enrolled in the Bloom-Carroll Local School District who was pursuing a lawsuit against the district, submitted public records requests demanding that the district provide her with copies of 1) detailed invoices sent to the district by a law firm it had retained to defend against Dawson’s suit; and 2) copies of all correspondence the district had received from its insurance carrier appointing Janet Cooper as the district’s insurance attorney and describing the liability and exposure of the district and the insurance company related to the claims asserted in Dawson’s lawsuit.
The district provided Dawson with summaries of the law firm invoices noting the attorney’s name, the invoice total and the matter involved, but refused to provide copies of the detailed monthly billing statements that described the specific work performed, legal issues that were researched, and detailed communications among the attorneys, the district and its insurer. The district also refused to provide Dawson with a letter that the insurance company’s claims analyst had sent to the district and its attorneys regarding Dawson’s lawsuit, on the ground that the information it contained was privileged.
Dawson filed suit in the Supreme Court seeking a writ of mandamus to compel the district to disclose the requested documents. After an unsuccessful attempt to resolve the dispute through mediation, the Court issued an alternative writ directing the parties to submit evidence and written briefs, and ordered the district to provide copies of the disputed documents to the Court for in-camera inspection.
In today’s per curiam opinion denying the requested writ, the Court wrote: “R.C. 149.43(A)(1)(v) exempts ‘[r]ecords the release of which is prohibited by state or federal law’ from the definition of ‘public record.’ ... In Ohio, the attorney-client privilege is governed both by statute, R.C. 2317.02(A), which provides a testimonial privilege, and by common law, which broadly protects against any dissemination of information obtained in the confidential attorney-client relationship.”
“ ... The school district refused to make the requested itemized attorney-billing statements available to Dawson because the statements contained detailed descriptions of work performed by the district’s attorneys, statements concerning their communications to each other and insurance counsel, and the issues they researched. The withheld records are either covered by the attorney-client privilege or so inextricably intertwined with the privileged materials as to also be exempt from disclosure. Therefore, the school district properly responded to Dawson’s request for itemized invoices of law firms providing legal services to the district in matters involving Dawson and her children by providing her with summaries of the invoices including the attorney’s name, the fee total, and the general matter involved. No further access to the detailed narratives contained in the itemized billing statements was warranted.”
“The February 9, 2010 letter from the school district’s insurance company to the district identifying Janet Cooper as the district’s attorney in Dawson’s due-process lawsuit against the district is also protected by the attorney-client privilege. The letter, which was addressed to the district and copied to the insurance counsel who would represent the district, evaluates Dawson’s claim and the extent to which the claim might be covered by the district’s insurance policy and instructs the district to cooperate with the insurance company and the attorney selected by the company to represent the school district to preserve its insurance coverage. In effect, the insurance company stands in the shoes of the district, and its letter naming Cooper as the district’s attorney in Dawson’s due-process lawsuit is covered by the attorney-client privilege.”
The Court’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.
The court's opinion is linked here. (Mike Frisch)
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