Background
State Representative Elliot P. Forhan requested the Ohio House’s complete files for two investigations conducted by outside counsel Perez Morris: a 2024 investigation into allegations about Forhan’s conduct and a 2023 investigation concerning complaints by House employee Sarah Cherry. The House produced reports and other materials but withheld attorneys’ witness-interview notes and drafts of the reports.
Forhan filed a public-records access complaint in the Court of Claims. That court ordered disclosure of the report drafts but denied access to the interview notes. The House appealed the disclosure ruling, while Forhan cross-appealed the ruling on the notes.
The Court’s Holding
The Tenth District affirmed in full. It held that the report drafts were public records because the House delegated its authority to investigate House personnel matters to Perez Morris, and the collaboratively prepared drafts documented the House’s operations and activities. The fact that the drafts were preliminary did not remove them from the Public Records Act.
The House did not prove that the drafts were trial-preparation records: generalized assertions that litigation was possible did not show the investigations were specifically compiled in reasonable anticipation of identified litigation. The House also did not establish attorney-client privilege for the drafts, relying on conclusory assertions rather than identifying privileged communications; it also waived any privilege as to the Forhan-report recommendations by providing that version of the report to Forhan.
The court separately held that Forhan had not shown the interview notes were public records. The evidence showed the attorneys created and used their own notes for personal convenience, no one else accessed or relied on them, and no requirement compelled their creation or retention. Their content did not alter their status as personal notes.
Key Takeaways
- Drafts can be public records when they document a public office’s activities, even if outside counsel prepared them.
- A public office must provide concrete evidence—not general claims that litigation was possible—to invoke the trial-preparation exemption.
- Personal attorney notes remain outside the Public Records Act when used solely by their creator for personal convenience and not required to be maintained.
Why It Matters
The decision underscores that a public body cannot avoid disclosure merely by delegating an investigation to outside counsel. Collaborative drafts produced in carrying out a delegated governmental function may be subject to disclosure.
It also draws a practical line between team-created investigation drafts and individual interview notes, while emphasizing that privilege and litigation-related exemptions require specific evidentiary support.