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08/18/2017

Fake news: Attorney-client privilege always trumps open records

Dennis Hetzel Executive DirectorBy Dennis Hetzel, Executive Director

We’ve had a number of interesting legal hotline questions lately on subjects such as bingo ads, unsolved murder cases, public notices and demands to delete content.

But before I get to that, let’s discuss the abuse of attorney-client privilege by some governmental bodies to avoid releasing public records.

Coincidentally, we’ve had questions on this from two newspapers and one citizen group in recent weeks. The bottom line is a quote I provided to The Columbus Dispatch in this editorial on mischief in a local sewer district: “As a matter of principle and the law, you can’t make something secret just because an attorney touched it.”

To understand the importance of this concept, imagine the opposite being true. If this were the case, as The Dispatch noted, an agency could make anything secret just by passing it through their attorney.

However, you should evaluate each situation case-by-case. Courts are likely to give agencies considerable latitude in claiming the privilege.

We recommend that you analyze whether the attorney’s involvement in the record is related to the exercise of the role of a lawyer. If the attorney has not been asked to provide legal advice, particularly if there is no anticipated or current litigation, you have an argument to defeat the attorney-client privilege. At many small governmental bodies, lawyers have other duties or supervisory responsibilities that are unrelated to legal matters.  In one recent case, a township hired an investigator who happened to be a lawyer. Although the township is opposing release of the investigative records, they can’t claim attorney-client privilege because the investigator’s status as a lawyer isn’t relevant.

Now, here are some other recent questions we’ve handled:

B-I-N-G-O: We received an insert for a bingo game that could involve a sales pitch to buy something. Does this run afoul of Ohio’s laws on raffles, lotteries and games?

A: These always should be examined case by case.  In some past situations, we advised that the “fine print” on no purchase being necessary might be too fine. In the most recent one, it was clearly stated that the consumer wasn’t obligated to listen to the sales pitch when the “winning card” was returned for the prize. There is a slight chance someone could argue that these games are illegal games of chance being conducted for profit, but the liability would fall on the advertiser, not the newspaper.

This particular card came from a company called Elite Marketing Services, which has a disclaimer you can find at www.doublebingorules188.com that puts the onus on the co-sponsor (the local business) to make sure the card complies with state law. We advised the newspaper to ask the local business if they have done so.

This topic is addressed in more depth in our guide to Ohio advertising issues, which is always available in the “members only” area of www.ohionews.org.

Unsolved homicides: I’m a reporter working on a story about unsolved homicides in our area. Is there any time limit that would make it easier to get police records on an unsolved case?

A:  If these are not closed cases, the police very likely will deny access to many of the records. Still, there are very specific requirements for police record exemptions. They can't just say "no" in other words. You should make a request as specific as possible and then demand the specific citation under the open records law for any rejection. If they can make a record open by redaction, they must do so.

All Ohio reporters covering law enforcement should be familiar with the section in the Attorney General’s manual on sunshine laws regarding CLEIRs exemptions (for confidential law enforcement investigatory records). You will see the tests a police record must pass for them to deny access.  Here is the link: http://www.ohioattorneygeneral.gov/yellowbook

We’re not aware of any time limit standard on an unsolved case. Tactically, you might try to appeal to them that fresh coverage could help. Note that the police aren't required to keep many records secret.  They can always release material voluntarily.

Public notice qualifications: We are merging or changing some of our publications. How can we be sure our publications are still qualified to publish public notices?

A: You should do a careful analysis using the six standards that are in Ohio law. ONMA can help you with this. Here are the standards:

  • Have been in business for at least three years immediately preceding the publication requirement.
  • Publish at least once a week.
  • Print in English using standard methods and be at least eight pages in broadsheet format or 16 pages in tabloid format.
  • Contain at least 25 percent editorial content that “includes, but is not limited to, local news, political information, and local sports.”
  • Have the ability to add subscribers to its distribution list.
  • Circulate generally by U.S. mail or carrier delivery in “the political subdivision responsible for legal publication or in the state, if legal publication is made by a state agency.” Proof of this can by an annual Postal Service statement or by proof of an independent audit performed within the prior 12 months.

Our public notice FAQ, also available in the “members only” area of www.ohionews.org , discusses this in more detail and is a handy reference for anyone handling legal notices.

Court-ordered takedown: We received a court order directing the newspaper to remove the name of a defendant in a court case because records related to the court case had been sealed. The local judge cited Ohio Revised Code 2953.52 and ordered media companies to remove references to the defendant. 

A: We believe this should be vigorously contested, even if means a potential legal battle. In our opinion, the judge vastly exceeded what this statute says. There is nothing in ORC 2953.52 that requires this. And, even if it did, this would not survive a challenge under the Ohio or U.S. constitutions. The statutes related to sealing and expungement relate only to official records and cannot be used to require the news media to do anything.

From an ethical standpoint, you should consider doing a follow-up story in fairness to the defendant and perhaps append the follow-up information to the initial story if it remains in your archive or on your website.

Unfortunately, we expect more and more of this to occur. My recent column on our opposition to legislative efforts to expunge (destroy) and seal more public records, although well-intentioned, discusses the broader issues and concerns. 

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