Ohio Supreme Court rules investigative report of Hartung affair not a public record

4/21/2009

Jim Hartung

COLUMBUS - An investigatory report drafted by a private law firm on behalf of the Toledo-Lucas County Port Authority is protected by attorney-client privilege and not a public record that must be turned over to The Blade, the Ohio Supreme Court ruled Tuesday.

The Blade had tried to obtain a copy of the report drafted by the Toledo law firm of Spengler Nathanson, hired by the public agency using public dollars to look into potential legal liabilities stemming from the alleged extramarital affair of the authority's then-president, James Hartung, with Kathy Teigland, a contract lobbyist for the authority.

The authority's board subsequently terminated Mr. Hartung's employment on Aug. 1, 2008, citing the improper relationship with a port authority vendor.

"As the uncontroverted evidence established, because port authority staff members knew that (Teresa) Grigsby was an attorney, they felt free to speak openly and candidly and with the understanding that their comments and the investigation were serious legal matters that could carry serious legal consequences,'' the court's unanimous ruling stated.

"Nor did the withholding of this privileged report significantly deter The Blade's reporting on the matter,'' the court added. "The port authority responded to 18 public-records requests by The Blade from mid-July 2008 until early August 2008 by making available to The Blade thousands of documents, including all public records reviewed by the attorneys in connection with the preparation of the investigative report. The Blade reported extensively about the matter."

The Blade had challenged the port authority's contention that the legal work product was protected by attorney-client privilege. The newspaper argued that the factual portions of the report should not be protected because they did not constitute legal advice covered by privilege.

The court, however, noted that the gathering of facts, including a review of port records, was the first step in Ms. Grigsby's representation of her client. It rejected The Blade's petition that it order the port authority to turn over the report.

Contact Jim Provance at:jprovance@theblade.comor 614-221-0496.