To date, no state court in Ohio has definitively analyzed whether confidential, executive session discussions are discoverable in the context of civil litigation or other quasi-judicial proceedings. However, courts from other jurisdictions have recently decided cases addressing this issue. These judicial decisions, while not binding, may ultimately prove persuasive to the Ohio state court that is ultimately charged with deciding this issue.

The latest court addressing this issue is the West Virginia Supreme Court of Appeals. Last month, the court analyzed a West Virginia Open Meetings Act that is similar to Ohio, and held that county commissioners were compelled to surrender an audio tape recording of an executive session discussion to an administrative law judge assigned to hear a disability discrimination case.

In State ex rel. Marshall County Commissioners and Marshall County Communication 911 v. Carter, the Marshall County Commissioners entered into executive session to consider applicants for 2 job vacancies in the 911 Department. Similar to Ohio, West Virginia's Open Governmental Proceedings Act generally provides that meetings of public bodies shall be open to the public. And like public bodies in Ohio, West Virginia public bodies may enter into executive session, closed to the public, to consider matters arising from the employment of a prospective public employee.

The County Commissioners, accompanied by their legal counsel, recorded the executive session meeting in which a discussion was held on the applicants to fill the 911 Department's job vacancies. Mr. Bragg, who is legally blind, interviewed for the available positions, but ultimately was not hired. Bragg subsequently filed a complaint with the State's Human Rights Commission alleging disability discrimination.

In preparation for a hearing before the Human Rights Commission's administrative law judge ("ALJ"), Mr. Bragg requested a copy of the tape recording from the County Commissioners' executive session. The ALJ decided to conduct an in camera review of the tape recording to determine whether and to what extent the tape contained privileged material. In response, the County Commissioners filed a legal challenge to the ALJ's decision to review the tape. The County Commissioners argued the tape recorded privileged and confidential executive session discussions. The Commissioners also argued the tape was protected from disclosure by the attorney-client privilege and attorney work-product doctrine.

The Carter court rejected the County Commissioners' argument that executive session confidentiality precluded the production of the tape to the ALJ. In so holding, the court differentiated between the scope of the general public's access to government meetings versus what may or may not be obtained in the course of discovery during civil litigation. The court opined that executive session privilege is not intended to prevent legitimate discovery in a civil action of matters discussed which are otherwise not privileged.

The court further opined that an administrative law judge in a job discrimination case may inspect allegedly privilege materials without violating the attorney-client privilege or work-product doctrine. In fact, in this case the court reasoned that the ALJ must review the contents of the alleged privileged communication to determine whether the communication is privileged. In doing so, the court opined that the County Commissioners did not risk waiving the attorney-client privilege or work-product doctrine.

Lessons Learned from this Case

Until a state court in Ohio definitively rules on a legal challenge to compel the discovery of discussions held in executive session, Ohio public bodies must look to other jurisdictions for guidance on this issue. The Carter case continues a trend of several cases across the United States that have rejected a public body's claim that the executive session discussions are not subject to disclosure in the context of civil litigation. Members of public bodies should be cautioned that while the general public may not be privy to executive session discussions, litigants in the context of civil litigation may be able to compel the discovery of such information.