April 27, 2023
This week, Attorney General Reyes led a 19-state amicus brief in support of Ohio Attorney General Dave Yost.
The case addresses the circumstances under which public records requests can become compelled depositions of high-ranking state officials. It asks whether and when a state attorney general with important public duties like fighting crime, protecting consumers, and combating the opioid epidemic can be pulled away from these duties for a fishing expedition.
The dispute began when the Center for Media and Democracy requested public records from the Ohio Attorney General’s Office. The AGO searched its files and found no relevant records. Unsatisfied with the AGO’s response, CMD filed a lawsuit and attempted to depose several AGO officials, including the Ohio Attorney General. Although the Ohio Attorney General was not involved in the records search and the AGO officials who conducted the search had already testified, the Ohio Court of Appeals ordered the Ohio Attorney to be deposed. It was clear from CMD’s questions at the depositions of the other officials that this lawsuit wasn’t about the sought-after records but rather about the Attorney General’s activities outside the office.
As a result, the AGO appealed to the Ohio Supreme Court. Leading a coalition of 19 states, Utah’s brief argues that a party must demonstrate “extraordinary circumstances” to justify the deposition of a high-ranking government official. Further, the brief argues that the Ohio Court of Appeals erred by not determining whether extraordinary circumstances existed before ordering the Ohio Attorney General’s deposition.
Attorney General Reyes issued the following statement: “All elected officials should embrace transparency to ensure accountability and lawful actions. We believe that Attorney General Yost and his Office followed the law and responded appropriately to this public records request. However, we believe that if the Ohio judicial system were to allow the Center for Media and Democracy to proceed with this unnecessary and distracting deposition, it would create a precedent that would needlessly take our states’ chief law enforcement officers away from the important responsibilities that they were elected to perform. For this reason, we proudly stand with our colleague from Ohio, and we hope the Court will decide this case in his favor.”
The brief highlights why the case is essential to all states, including Utah: “If every public records request could be turned into a deposition of a high-ranking government official, such depositions would quickly become an enormous disruption to public administration at every level. The wheels of government would grind to a halt. The extraordinary circumstances standard ensures that high-ranking officials are not needlessly and routinely pulled away from their official duties to provide testimony in litigation involving their offices—particularly when the subject is something as frequent as a public records request.”
Attorney General Reyes recently won a case in the U.S. Court of Appeals for the Tenth Circuit involving a similar order that would have required him to testify in a wrongful termination suit. In re Off. of the Utah Att’y Gen., 56 F.4th 1254 (10th Cir. 2022). Because the officials who made the termination decision had already been deposed, the Tenth Circuit ruled that extraordinary circumstances did not justify taking General Reyes away from his essential duties to sit for the deposition. Id. at 1264.
Joining AG Reyes on this brief were the Attorneys General of Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, and Virginia.
Read the amicus brief here.