LEGAL NEWSLINE

COLUMBUS, Ohio (Legal Newsline) - The Supreme Court of Ohio, denied the writ of mandamus filed by a petitioner seeking copies of records from former state Attorney General Richard Cordray's office relating to the claim that State Representative Danny R. Bubp simultaneously held two public offices.

Cordray was subsequently appointed by President Obama to head the Consumer Financial Protection Bureau. This appointment, made during the Senate intra-session but without its approval, is now in jeopardy in light of the recent D.C. Circuit ruling on the unconstitutionality of similar Obama appointments to the National Labor Relations Board.

The Court issued the per curiam opinion denying the writ Jan. 29.

"Danny R. Bubp was a state representative for the 88th house district in the General Assembly. In 2009 and 2010, Bubp served as state representative and also served as mayor's court magistrate for the villages of Ripley and Winchester, Ohio. Thereafter, Bubp continued to serve as state representative and mayor's court magistrate for Ripley," the opinion states.

"In October 2009, a Cincinnati television station reported that the Democratic Party chairmen of the three counties comprising the 88th Ohio house district had filed complaints with then Ohio Attorney General Richard Cordray and the county prosecuting attorneys claiming that by holding the public offices of state representative and mayor's court magistrate simultaneously, Bubp violated Ohio Constitution, Article II, Section 4 and R.C. 101.26."

Kent Lanham, a taxpayer and resident of Clermont County, Ohio which is in Bubp's district, hand delivered to Attorney General Cordray's office a written request for copies of records "concerning any report, complaint, claim, or other communication that office relating to Bubp's simultaneously holding and exercising public offices of state representative and mayor's court magistrate."

The request thoroughly detailed specific areas that were of particular interest and cited the Ohio Constitution and the Ohio Revised Code as authority. Lanham stated that the time period for the request was limited from July 1, 2009, through the date of the request.

The attorney general's office acknowledged receipt of the request on Nov. 22, 2011, and on Dec. 1, 2011, it mailed a CD containing 172 pages of responsive documents. Several of the documents were withheld and parts of documents were redacted "based on the claim that they were covered by the attorney-client privilege," according to the opinion.

Lanham, through his attorney, requested clarification and confirmation of the specific privilege for each redaction and the attorney general's office, in its response, noted that Lanham's questions concerning the attorney-client privilege "went beyond the scope of the public-records inquiry."

On Feb. 2, 2012, Lanham filed an action for a writ of mandamus to compel the attorney general's office to provide access to those portions of the requested records that were withheld, including the records that were withheld for claimed attorney-client privilege. Lanham also requested an award of attorney's fees, costs, and statutory damages.

The case was referred for mediation and then came back to the Court where several motions were dealt with. After several months of litigation, Lanham had identified six redacted documents and two additional documents that he wanted produced. Briefs and evidence was submitted by each party and the cause was ready for the Court's consideration.

"Mandamus is the proper action to compel adherence to R.C. 149.43, the Public Records Act, and courts construe the act liberally in favor of broad access, resolving any doubt in favor of disclosure of public records," the Court wrote.

"The attorney general's office claims that the records at issue here are excepted from disclosure. In State ex rel. Cincinnati Enquirer v. Jones- Kelley ... we set forth the standard of proof for public-records custodians attempting to establish an exception:

"Exceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception."

"This court has previously addressed when the attorney-client privilege arises. "(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.

"The six e-mails are communications between a client - in this case, members of the administration of the attorney general's office who asked for legal advice - with an attorney - in this case, members of the opinions section of the attorney general's office. They contain legal analysis and conclusions - that is, legal advice - from the attorneys in the opinions section to their clients in the administration.

"They do not appear to have been shared with anyone outside the attorney general's office; the privilege has thus not been waived. The six e-mails were properly withheld from a public records release as attorney-client privileged materials.

"Here, the two documents Lanham asserts are improperly withheld are asserted by the attorney general's office to have been gathered by Assistant Attorney General McIver as part of his investigation into the matter on which he was advising his client.

"Our in camera inspection of the documents reveal that they contain material pertinent to such an investigation and were transferred to Assistant Attorney General McIver during the time period that he would have been investigating the Bubp matter for the attorney general. Therefore, we agree with the attorney general's office that the documents are covered by attorney client privilege and were properly withheld.

"The attorney general's office established the applicability of the attorney-client privilege and therefore did not fail to comply with R.C. 149.43. An award of statutory damages and attorney fees is therefore not appropriate.

"Because Lanham has failed to establish his entitlement to the requested extraordinary relief, we deny a writ of mandamus to compel the attorney general's office to provide unredacted copies of the requested records. We deny Lanham's request for statutory damages and attorney fees."