Justices hear arguments over executive privilege

The governor's office is resisting releasing weekly memos to state Sen. Dann.
By JEFF ORTEGA
VINDICATOR CORRESPONDENT
COLUMBUS -- Records kept by Republican Gov. Bob Taft that could be related to a state investments controversy belong to the people of Ohio and should be released, state Sen. Marc Dann said Wednesday.
"Those records belong presumptively to the people of this state. The [state] constitution says nothing otherwise," said Dann, a Democrat from Liberty Township.
Dann's comments came shortly after the Ohio Supreme Court heard oral arguments in a lawsuit brought by Dann against Taft that seeks all weekly memos dating back to 1998 from the governor's office involving the state Bureau of Workers' Compensation, the state's insurance fund for injured workers.
The BWC has lost about $300 million in various investments over the past few years.
Dann has said he wants to know if or when Taft was ever informed of the BWC investment losses.
Taft's office has turned over several hundred pages of governor's office memoranda to Dann and his lawyers. But Dann and his lawyers say some were redacted and more than 200 memos may not have yet been provided.
Dann, who originally sought the records under the state's open-records laws, and his lawyers also want to depose Taft, a Republican, and other current and former state officials in connection with the suit.
Claim executive privilege
But Taft's lawyers have resisted, claiming executive privilege.
Kathleen Trafford, a lawyer for Taft, said the reports being sought are requested by the governor for his use and should be protected.
"These reports are requested by the governor," Trafford told the justices, adding that they often become the basis for weekly policy deliberations.
But Fred M. Gittes, Dann's Columbus-based lawyer, said a broad-based "executive privilege" does not exist in the state's constitution.
"It does not exist," Gittes told the justices.
Justices peppered both lawyers with questions.
"What are the parameters ... to this cloud of secrecy the governor is asking us to apply?" Justice Paul E. Pfeifer, a Republican, asked Trafford.
"It's not a secrecy privilege, your honor," Trafford said.
"It would apply to communications that the governor requests or receives from either his executive internal advisors ... or the Cabinet directors," she said.
"Assuming that there is an executive privilege, not everything in these weekly reports would be covered by that, is that correct?" asked Justice Alice Robie Resnick, a Democrat.
Trafford, however, contends the reports are covered by executive privilege.
Gittes said the state constitution "does not grant a broad privilege to the governor for communications to him."
"Do you recognize an executive privilege in Ohio, or not?" Justice Terrence O'Donnell, a Republican, asked Gittes. Gittes said he does not.