Dispatch files legal action for access to public records

From The Columbus Dispatch The operators of the publicly owned Franklin County Landfill say attorney-client privilege allowed them to black out entire pages of emails discussing how a private firm was allowed to dump of thousands of tons of waste without paying.

But experts on Ohio’s Public Records Act say that when agencies keep their actions secret by claiming that communication was really confidential legal advice, the public is forced to take their word for it — or go to court, a potentially costly and time consuming proposition.

The Dispatch went to the Ohio Court of Claims Friday to force the issue, filing a request for immediate review of the documents that the Solid Waste Authority of Central Ohio redacted or withheld. The newspaper is making use of a law that took effect last year that allows those who have been refused access to records to seek mediation through the court, which will issue a ruling if no agreement can be reached. Either side can appeal that ruling.

“We filed a public records complaint with the Ohio Court of Claims because we have seen no evidence to support SWACO’s claim that these records are exempt from public disclosure,” said Alan D. Miller, editor of The Dispatch.

“We believe that the public has a right to know how and why SWACO allowed 800 truckloads of waste to be dumped at no charge while others were being charged to dump similar loads,” Miller said. “Something smells bad here, and we believe the records will help shed light on what SWACO did or didn’t do to protect the public interest in this publicly owned landfill operation.”

More agencies are routinely looping in an attorney on the daily workings of government since a 2009 Ohio Supreme Court ruling that public officials interpreted as endorsing the use of attorney-client privilege to shield documents, said David Marburger, an attorney who specializes in First Amendment, libel, and media law.

That ruling found that the Lucas County Port Authority could keep secret an agency investigation into an employee accused of having an extramarital affair with a lobbyist and improperly funneling money to her. The reason: even though the report did “serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office,” the port authority had a law firm do the investigation, the Supreme Court decided.

The port authority hired the firm specifically to keep the investigation secret, because agency employees “might be reluctant to speak openly and candidly unless the confidentiality of the investigation could be ensured,” the Supreme Court said in its ruling.

Many agencies interpreted the ruling as a green light to use attorneys to shield everyday documents and “spontaneous communications about what happened, how someone in officialdom responded,” Marburger said. But the ruling “doesn’t automatically mean those things.” The likelihood is low that everything labeled privileged really is, he said.

“Public relations is really what’s going on,” Marburger said.

While the state’s Public Records Act lists attorney-client privilege as an exemption to disclosure, that doesn’t mean that attorneys use it correctly, said Tim Smith, an attorney specializing in public records and meetings laws.

“That’s an interesting dodge to get around the Open Records Law: that everything we talk about we talk to our attorney about” so it can be withheld, Smith said. “There’s a legal term for this: It’s bull----.

“They would have to supply some basis for their contention that this is privileged information.”

The same tactic has been used to keep the public from public meetings.

Columbus City Schools closed a series of school board meetings in 2012 to discuss the district’s data-scrubbing scandal under the claim that an attorney it had hired was also in the room during the debates and therefore it was exempt from the state Open Meetings Act.

The Dispatch challenged that claim, and a Franklin County magistrate issued a preliminary order to stop such meetings. The court eventually ruled that the practice was illegal, and the district agreed to pay the Dispatch’s $170,000 legal fees. The Dispatch waived the payment.

When Columbus City Schools recently evaluated the job performance of Superintendent Dan Good, it hired an attorney, Greg Scott, to write the final report. The Dispatch asked for documents used in crafting the final five-page evaluation, but Scott said they were the board’s personal notes and were “protected by attorney-client privilege.”

The day after the evaluation was signed, Good announced he would retire in December.

What was the confidential legal advice the board was receiving from Scott? It was his help in writing the final evaluation, which reflected the feelings of the seven school board members, said district spokesman Scott Varner.

Varner said there is no pending lawsuit in regard to Good’s contract or his evaluation.

“If your question is do we (involve an attorney) so we don’t have to release documents, the answer to that is no,” said Columbus School Board President Gary Baker, who added that in the future, the board plans to stop using an attorney to assist in job evaluations. The client in an attorney-client privilege situation can waive the privilege and release the documents, but Baker declined to speculate whether the school board would do that.

The concept that a public agency can make a document secret because there might be future legal action is “absurd and it’s not supported by case law,” said Dennis Hetzel, executive director of the Ohio News Media Association.

“You can’t just have some anecdotal concern that somebody might sue us,” Hetzel said. “You have to have a more imminent fear. You always might get sued.”

In the case of the landfill records, the Solid Waste Authority of Central Ohio’s staff attorney, Rebecca Egelhoff was copied or included on a series of emails among SWACO employees about the free dumping. The blacked-out emails have subject fields such as: “response to Dispatch editorial,” “weekend Dispatch story” and “yard waste,” and SWACO’s public relations manager was included in nearly all of them.

They were sent around the time of a Dispatch article in May that broke news that yard-waste and mulch company Kurtz Brothers had dumped almost 800 truckloads of waste for free in late 2016 and early 2017. The dumping was valued at about $700,000 at the landfill’s rates at the time.