Thursday, July 07, 2005

 

Taft executive privilege claim on weak grounds?

Yesterday, Gov. Bob Taft release 5,000 pages of emails from Cherie Carroll, the former executive assistant to Brian Hicks, the governor's former chief of staff. Carroll also followed Hicks when he set up his lobbying firm. So far, the documents have shown little other than an insipid world of politics that brokered White House tours and appearances with Dubya.

But Taft also announced that he was refusing to release a parcel of documents sought by the Dispatch and other media outlets. These documents include agency weekly reports and appointment calendars and schedules for Taft and Hicks.
Elizabeth Luper Schuster, Taft’s legal counsel, said that releasing weekly reports to the governor from his top staffers "would discourage future necessarily candid advice . . . to the governor."

Schuster cited a "significant security threat" in refusing to release Taft’s calendar.
Over this last point Schuster raised, Senator Marc Dann quickly pointed out the absurdity:
"This is not a matter of national security," Dann said. "What did the governor know about what we were paying the governor to oversee?"
Beyond the silly factor, we think Taft is going to have a tough time making the executive privilege argument stick for everything. We aren't experts on Ohio's Open Records laws, but we know, for example, that in other states judges have ruled that calendars and schedules are fair game.

In 2000, the Washington Post went to court to get Maryland's then governor Parris Glendenig's calendar and phone records. Glendening argued that these records should be excluded because they were of a "deliberative or advisory nature."

The state's highest court said, "Nice try, but sorry." According to News Media & the Law:
The appeals court rejected the claim that the telephone and scheduling records contained executive communications of a deliberative or advisory nature that were exempt from the open records law. The court clarified its position on this type of communications, writing that communications of a deliberative or advisory nature that assist an official in deciding on future governmental action are exempt from the open records law. However, because telephone records and scheduling records were not clearly records of the executive deliberative process, the court remanded the decision to the circuit court.
Regarding the "weekly reports," and Schuster's argument that disclosure "would discourage future necessarily candid advice . . . to the governor," we also think Taft may be on thin ice.

First, we think that Taft will have to show that the legislative intent of the public records laws was to allow an exemption based on some sort of confidentiality or advisory content. We don't see it, but we aren't lawyers and maybe a reader will help us out on this. Again, some governors have tried to say that such an exemption applies to them the same way the federal freedom of information act applies to the president. But state courts appear to be willing to throw that argument out unless there is clear legislative intent.

Second, Taft will have to show where simple reporting crosses the line into being candid advice.

Finally, Taft most likely will be required to show exactly which reports contain "candid advice." It's highly doubtful that the courts would allow a blanket exemption. More likely, the courts would demand to see the reports and decide for themselves.

Of course, none of this is helping Taft in the court of public opinion, but clearly that's the court that he is least worried about.

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