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Published: Friday, 4/24/2009

Court closed on openness

THE Ohio Supreme Court cannot seem to make up its collective mind as to whether it is for openness and transparency in government or is against it.

That's the conclusion we draw from the court's ruling Tuesday that the public is not entitled to see a 2008 investigative report detailing the relationship between a lobbyist for the Toledo-Lucas County Port Authority and James Hartung, former port board chairman, because the report is the product of attorney-client privilege and thus is not a public record.

The ruling, in a case brought by The Blade, opens the door for state and local agencies to conceal their activities and deliberations in wholesale fashion by hiring lawyers to do their work and then claiming that the result is "privileged" and thereby exempt from Ohio's open-records law.

This is a regressive decision that sets back the cause of open government, one that could allow a whole lot of public business to be conducted in secret under the supervision of squadrons of lawyers. Just imagine how expensive that could be for taxpayers and how injurious to the democratic process, which relies on the safeguards inherent in open records and deliberations.

Moreover, the decision is particularly regrettable because the court had been a progressive force in ensuring that government records are available to the public.

In December, for example, we praised the court for "an important blow for good government" after it ruled that electronic messages sent by local officials, including deleted e-mails, are public records and thus open for inspection. It was a ringing endorsement of government transparency, but Tuesday's decision is a jarring about-face to that cause with serious potential for abuse.

Indeed, the justices, in effect, placed themselves in the position of news editors by noting that the port authority had turned over to The Blade all the records used in preparing the report and that the newspaper "reported extensively about the matter." Nevertheless, we can't be sure we provided all the relevant information to the public because we weren't allowed to see the report.

As for attorney-client privilege, the court followed such an expansive interpretation of that relationship that it has created a gigantic loophole for government officials to slip through when they want to keep taxpayer-funded investigations and related activities secret from the people who pay for them.

The remedy to the court's new limits on openness lies in the General Assembly, which could - and should - limit the instances in which public bodies can employ attorney-client privilege as an excuse to keep records closed. We fully expect bipartisan action in the legislature but, if not, the threat is so serious that good-government groups undoubtedly would launch a ballot issue as was done with the statewide smoking ban.

In the meantime, the question remains: What is in the report that port officials and board members have labored so fiercely to keep from the public? Could it be evidence of more serious misbehavior than was cited in the dismissal of Mr. Hartung? Those are fair questions but ones that the Ohio Supreme Court won't allow to be answered.



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