A new formal opinion of the Ohio Ethics Commission was issued on April 17, 2020. It concludes that disclosures of discussions of a public body held in a properly-convened executive session that are legally confidential (pursuant to a statute) or designated as confidential reasons that are necessary and warranted may be found to be a violation of R.C. 102.03(B) of the ethics laws.
That statute prohibits a public official from recklessly disclosing or using confidential information acquired in his or her role as a public official without authorization, and is punishable as a criminal offense, a first-degree misdemeanor. The statute states:
No present or former public official or employee shall disclose or use, without appropriate authorization, any information acquired by the public official or employee in the course of the public official’s or employee’s official duties that is confidential because of statutory provisions, or that has been clearly designated to the public official or employee as confidential when that confidential designation is warranted because of the status of the proceedings or the circumstances under which the information was received and preserving its confidentiality is necessary to the proper conduct of government business.
The Commission emphasized that the decision about whether a public body that has designated an executive session discussion as confidential is legally confidential is made on a case by case basis. The confidentiality designation of the public body would be evaluated on the basis of the status of the proceedings or the circumstances under which the information was received, and whether preserving the confidentiality of the information is necessary to the proper conduct of government business.
If there is a particular statute that makes a certain discussion confidential, it is presumed to be confidential, and the release of that information is governed by the terms of that statute.
The Commission noted that documents reviewed in executive session do not become confidential as a result of a confidentiality designation or simply because they were reviewed in executive session. These documents must be evaluated as to whether they are public records pursuant to existing public records law.
This formal opinion is not exactly a new position of the Commission. A 1986 informal opinion reached the same conclusion. However, the issuance of the formal opinion makes it applicable to all Ohio public officials. While not everything discussed in executive session is statutorily confidential, it is a good reminder that certain discussions of the public body are entitled to confidentiality that may be enforced by law, and violations of that confidentiality may in some cases carry criminal sanctions under Ohio’s ethics laws.