State ex rel. Dann v. Taft

853 N.E.2d 263, 110 Ohio St. 3d 252
Ohio Supreme Court·Decided July 21, 2006·No. No. 2005-1222·Published·Cited by 13 cases

Opinions

Moyer, C.J.

{¶ 1} Relator, Marc Dann, filed this original action in mandamus seeking a writ ordering respondent Governor Bob Taft to disclose certain weekly reports that allegedly relate to the Bureau of Workers’ Compensation (“BWC”) and that were prepared by various officials in the executive branch. The parties filed competing discovery motions, presenting the issue whether the governor’s claim of executive privilege over those weekly reports is valid.

{¶ 2} The governor urged this court to recognize an absolute privilege, a suggestion all members of this court rejected. State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472 (“Dann v. Taft I”). By contrast, courts in several states recognized absolute gubernatorial executive privilege as early as the 19th Century as a matter of common law based on principles of separation of powers. See Annotation, Construction and Application, Under State Law, of Doctrine of “Executive Privilege” (1981), 10 A.L.R.4th 355, 357. Absolute privilege is based on the theory that “the coequal status of the legislative, executive, and judicial branches would be disrupted if one branch, the judiciary, were empowered to compel another branch, the executive, to disclose information against its will.” Id.

{¶ 3} Some form of executive privilege has long been accorded the executive branch by state courts as a matter of the common law of evidence, including courts in Alabama, Alaska, Arizona, California, Colorado, Maryland, New Jersey, New York, Pennsylvania, Vermont, and Wisconsin. See Annotation, supra, 10 A.L.R.4th 355, Sections 2(b) and 4. See, also, Nero v. Hyland (1978), 76 N.J. 213, 386 A.2d 846; Guy v. Judicial Nominating Comm. (Del.Super.1995), 659 A.2d 777; Wilson v. Los Angeles Cty. Super. Court (1996), 51 Cal.App.4th 1136, 59 Cal.Rptr.2d 537.

{¶ 4} Consistent with this weight of authority, this court recognized not an absolute but a qualified gubernatorial-communications privilege in Dann v. Taft I, [253]*253109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472. We drew upon the decisions of a number of federal and state courts in crafting a three-step analytical framework for Ohio courts to follow when required to resolve a conflict between a requester of gubernatorial communications and a governor who claims that those communications are privileged. Id. at ¶ 62-72.

{¶ 5} We initiated the process established in Dann v. Taft I by issuing an order allowing Governor Taft to formally assert the gubernatorial-communications privilege and authorizing Dann to thereafter submit a statement describing his particularized need to review any weekly reports the governor might assert to be privileged. Id. at ¶ 74.

{¶ 6} Governor Taft timely submitted a sworn affidavit stating that he had provided Dann with all the communications Dann had sought regarding the BWC and asserting the qualified gubernatorial-communications privilege as to other documents. See State ex rel. Dann v. Taft, 110 Ohio St.3d 1, 2006-Ohio-2947, 850 N.E.2d 27 (“Dann v. Taft II”). Dann thereafter proffered his assertion of particularized need to obtain the documents withheld by the governor.

{¶ 7} In his proffer, Dann stated that he, as an Ohio employer, had contributed to the Ohio Workers’ Compensation Fund. Id. at ¶ 11. That assertion arguably could have met the test for particularized need if the governor possessed the records that Dann said the governor possessed. But Dann also claimed that he was “a taxpayer who paid taxes into the general fund used to finance the operations of most of the state departments and agencies reporting to Governor Taft” and had “paid gasoline taxes used to finance the operations of the Ohio Department of Transportation and the State Highway Patrol.” He stated that he believed that he had “every reason to be concerned” that a “climate of corruption” had affected state government agencies other than the BWC and that he had made his public records request “[a]s a taxpayer” because he was considering pursuing a taxpayers’ action “to enjoin illegal contract or other unauthorized use of public funds and, where appropriate, to recoup the lost funds.”

{¶ 8} That basis for asserting particularized need goes far afield of Dann’s complaint in mandamus and is not appropriately asserted in this case.1 Even [254]*254assuming that Dann’s status as an Ohio taxpayer could serve as a premise for particularized need, it would not be sufficient in this case.

{¶ 9} In order to overcome an assertion of qualified gubernatorial-communications privilege, a requester “must demonstrate particularized, rather than generalized, need and explain why that need outweighs the qualified privilege.” Dann v. Taft I, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 67. Dann’s status as a taxpayer who paid taxes into the general fund and paid gasoline taxes is shared by nearly all adult Ohio citizens. There is nothing particularized about a need asserted on that basis. Nor would the fact that Dann may be contemplating the filing of a taxpayer suit alleging unspecified misconduct on the part of government officials demonstrate a particularized need, because, in the absence of statutory authority, a taxpayer in his position lacks standing to file a taxpayer suit. State ex rel. Masterson v. Ohio State Racing Comm. (1954), 162 Ohio St. 366, 55 O.O. 215, 123 N.E.2d 1. Ohio law does not authorize a private Ohio citizen, acting individually and without official authority, to prosecute government officials suspected of misconduct based on the citizen’s status as a taxpayer of general taxes, including the gasoline tax.

{¶ 10} In contrast, longstanding Ohio law does recognize that a taxpayer with a “special interest” in particular public funds has standing to seek equitable relief in a court of equity to remedy a wrong committed by public officers in the management of those funds. Id.; Racing Guild of Ohio, Local 304, Serv. Emps. Internatl. Union, AFL-CIO v. Ohio State Racing Comm. (1986), 28 Ohio St.3d 317, 28 OBR 386, 503 N.E.2d 1025. Dann arguably has a “special interest” in the management of the Worker’s Compensation Fund because he had paid into that fund as an employer. Dann v. Taft II, 110 Ohio St.3d 1, 2006-Ohio-2947, 850 N.E.2d 27, ¶ 16. It is the existence of that arguable special interest in the Workers’ Compensation Fund that differentiates Dann’s need to access gubernatorial communications concerning that fund from his generalized need to review communications regarding other Ohio executive departments. Dann confined his complaint to seeking communications relating to the BWC, and he has failed to state a credible theory that he has standing to initiate a taxpayer action based on his speculations of misconduct on the part of departments and agencies other than the BWC.

[255]

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State ex rel. Dann v. Taft, 853 N.E.2d 263, 110 Ohio St. 3d 252 (Ohio 2006).

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