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Limited Information on Attorney Bills Should Be Disclosed Under Ohio’s Public Records Law.

The Ohio Supreme Court has held that information on itemized attorney-billing statements that was not protected by the attorney-client privilege should be disclosed under Ohio’s Public Records Law.

The case is State ex rel. Anderson v. Vermilion, Slip Opinion No. 2012-Ohio-5320.

The former mayor of Vermilion believed that the annual legal fees expended by the new administration far exceeded the fees incurred during her administration.  She made several records requests to permit public scrutiny of the city’s expenditure of funds for legal services.

The city acknowledged its receipt of the request but denied it on the basis that the requested legal bills are exempted from disclosure by the attorney-client privilege.

The Ohio Public Records Law, R.C. 149.43(A)(1)(v), excludes “[r]ecords the release of which is prohibited by state or federal law” from the definition of “public record.” This includes records covered by the attorney-client privilege.  The attorney-client privilege covers confidential communications between attorneys and their clients pertaining to the attorneys’ legal advice.

In other cases, the Supreme Court has held that the narrative portions of itemized attorney-billing statements containing descriptions of legal services performed by counsel for a client are protected by the attorney-client privilege.  This is generally because the itemized narrative can provide information on legal issues and concerns facing a client.

The Supreme Court held that under “the Public Records Act, insofar as these itemized attorney billing statements contain nonexempt information, e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services, they should have been disclosed . . .”  The court instructed that the privileged information on the bills should be redacted and any remaining information released.

The city’s best argument was that the privileged information in the statements was “inextricably intertwined” with the non-privileged information, thereby making the entire bills privileged and exempt from the public records law.  The court rejected this argument, noting that other government entities have complied with the Public Records law by providing non-privileged information – such as time, rates, and billing amounts – from legal bills.

 

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Calendars of Public Employees are Public Records, says Ohio Supreme Courtio Supreme

A recent decision by the Ohio Supreme Court addresses, in part, whether calendars of public employees are public records.  This may be significant because Ohio Democrats have sued Republican Governor John Kasich seeking access to his schedule.

The case is State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, Slip Opinion No. 2012-Ohio-4246 (September 20, 2012).

In this case, an attorney representing defendants in criminal cases, sought certain records from the Mahoning County Prosecutor’s Office.  The underlying case involves a 73-count indictment charging Anthony M. Cafaro Sr., the Cafaro Company, Ohio Valley Mall Company, the Marion Plaza, Inc., John McNally IV, John Reardon, Michael V. Sciortino, John Zachariah, Martin Yavorcik, and Flora Cafaro with engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money laundering, conflict of interest, filing false financial disclosure statements, and soliciting or accepting improper communications.

The case is complicated and involves a lot of detailed issues, but what may be those most important aspect of the case involves calendars.

As part of the records request, the attorney requested calendars of various employees.

The Supreme Court noted that in a previous case, the Tenth District Court of Appeals had upheld a denial of access to the governor’s personal calendars and appointment books.  The court had reasoned that the calendars were not public records because there was no evidence that the calendars and books documented any official purpose.

In contrast to the calendars of the former governor at issue in that case, in this case the Supreme Court held that the calendars “were used at least occasionally by [the employees] to make work-related entries, like hearing dates and deadlines for briefs.  Work-related calendar entries are manifestly items created by [the] . . . employees that serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.  These portions of the requested calendars consequently” are public records.  Accordingly, the attorney was entitled to the requested copies of those portions of the calendars of that are work-related entries.

 

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Ohio Supreme Court Allows Public Access to Case Records in Criminal Prosecution

The Ohio Supreme Court issued an opinion about public records in criminal prosecutions.  The court held that public access to court records would not result in publicity that could lead to the inability of a defendant to receive a fair trial.

The case is State ex rel. Vindicator Printing Co. v. Wolff, No. 2012-Ohio-3328. (July 25, 2012).

Facts:  In July 2010, a grand jury returned a 73-count indictment charging seven persons, including current and former public officials, and three organizations with felony and misdemeanor charges, including engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money laundering, tampering with records, disclosure of confidential information, conflict of interest, filing a false financial-disclosure statement, and soliciting or accepting improper compensation.

As a result of pre-trail publicity, the judge ordered that all filings in the case “shall be under seal with the exception of filings that are clearly procedural and cannot possibly implicate Defendants’ concern about receiving a fair trial.”  The judge issued a supplemental order in which he explained that his “filing under seal protocol” was based on the “significant media coverage” that the criminal cases had attracted and his obligation “to balance the right of the defendants to a fair trial and the right of the public to be informed of these proceedings through the media or through personal examination of the record.”  The judge was concerned with whether “fair and impartial potential jurors can be found . . . i.e., potential jurors without preconceived notions of how this case should be decided that they cannot set aside due to pretrial publicity.”

A newspaper and television station submitted to the judge and the Mahoning County clerk of courts requests to inspect and copy filings and documents submitted to the court in the criminal cases, including those that had been filed under seal.  When relators were not provided access to some of the requested records, they filed a motion for an order vacating the sealing orders. The maintained some records under seal and continued a protocol in which the state would submit to defense counsel, prior to filing, any document that “can be reasonably expected to trigger a concern on the part of  defense counsel that publication of the document will prejudice the impaneling  of an impartial jury.”

The newspaper and television station filed for a writ of mandamus to compel the judge to release all records filed with the clerk of courts in the underlying criminal cases and a writ of prohibition to prohibit him from presumptively closing any proceedings or sealing any documents filed with or otherwise provided to the court.

The newspaper and television station claimed entitlement to the sealed records based on the Rules of Superintendence, the Public Records Act, the United States and Ohio Constitutions, and the common law.  The Ohio Supreme Court decided the case based on the Rules of Superintendence, which provide for public access to court records.  Under these Rules, “[c]ourt records are presumed open to public access.”  The court explained that “to qualify as a case document that is afforded the presumption of openness for court records, the document or information contained in a document must merely be ‘submitted to a court or filed with a clerk of court in a judicial action or proceeding’ and not be subject to the specified exclusions.”

The Ohio Supreme Court rejected the claim that access the the records would substantially prejudice the defendants’ right to a fair trial. The court said:  “There was not clear and convincing evidence to establish that the  prejudicial effect of pretrial publicity generated by public access to the [records] would prevent them from  receiving a fair trial.”  The court added:  “the constitutional right of the defendants to a fair trial can be protected by the traditional methods of voir dire, continuances, changes of venue, jury instructions, or sequestration of the jury.”

 

If you have questions about this issue, or if you need an Ohio Criminal Defense Lawyer for your Ohio criminal appeal or other post-conviction matter, please visit the  Appeals Section of J. Adam Engel, LLC.

 

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