Opinion
2021-00429PQ
11-23-2021
BRIAN M. AMES Requester v. BRETT R. BENCZE Respondent
Sent to S.C. Reporter 1/21/22.
REPORT AND RECOMMENDATION
JEFF CLARK Special Master
{¶1} The Public Records Act, R.C. 149.43, provides that upon request, a public office "shall make copies of the requested public record available to the requester at cost and within a reasonable period of time." R.C. 149.43(B)(1). Ohio courts construe the Public Records Act liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Hogan Lovells U.S., LLP. v. Dept. of Rehab. & Com, 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides "an expeditious and economical procedure" to resolve public records disputes in the Court of Claims.
Request for Attorney-Client Communications
{¶2} On July 12, 2021, requester Brian Ames made a public records request to fiscal officer Jennifer Derthick of Freedom Township for "a copy of the email from the prosecutor's office concerning the zoning classification of Duke's K9 Dash N' Splash." (Complaint at 3.) On July 13, 2021, respondent Portage County Assistant Prosecutor Brett Bencze responded on behalf of the Township:
Although there is no indication that Mr. Bencze is an official or employee of Freedom Township, he made no objection to being named and served as respondent. Bencze is acknowledged by his counsel as "Respondent" without caveat. (Response at 1.) The special master construes these actions as waiver of any objection to the court's jurisdiction over Bencze as a proper party respondent to this action.
Attached please find the email responsive to your below R.C. 149.43 public records request. The email has been redacted to exclude information that is protected by attorney-client privilege. (Id. at 2-3.)
{¶3} On August 3, 2021, Ames filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). Following unsuccessful mediation, Bencze filed a motion to dismiss and memorandum in support (Response) on September 27, 2021. On October 13, 2021, Ames filed a reply. On October 14, 2021, Bencze filed an unredacted copy of the withheld email, under seal.
Motion to Dismiss
{¶4} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
{¶5} On consideration, the special master finds Bencze's assertions that 1) the email did not meet the definition of a "record" for purposes of the Public Records Act, and 2) the redacted portion of the email constituted privileged attorney-client communication, are not conclusively shown on the face of the complaint. Moreover, as the matter is now fully briefed the grounds asserted for dismissal are subsumed in the arguments to deny the claim on the merits. It is therefore recommended the motion to dismiss be denied.
Written Legal Advice is a "Record" and Presumptive "Public Record"
{¶6} Bencze asserts that the content of the requested email is not a "record" of the Township. If so, it cannot be requested under the Public Records Act and there is no need to consider whether any statutory exemption allows or requires it to be withheld.
Burden of Proof
{¶7} The overall burden of persuasion in a public records case is on requester to prove his right to relief by the requisite quantum of evidence. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, Slip Opinion No. 2020-Ohio-5371, ¶ 34. First, the requester must prove that he sought an identifiable public record, and that the public office did not make the record available. Id. at ¶ 33. When a public office asserts the defense that a requested item "is not a record," the burden of proof remains with the requester to establish that it meets the statutory definition of "record." State ex rel. O'Shea & Assocs. Co., LP.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23.
Statutory Definitions
{¶8} "'Public record' means records kept by any public office, including, but not limited to, * * * township[s]." R.C. 149.43(A)(1). There is no dispute the Township is a public office, and Bencze does not dispute that it kept the email at issue. Thus, if its content meets the definition of a "record," then the email is a presumptive "public record" subject to disclosure unless a valid public records exemption applies.
"Records," as used in R.C. Chapter 149,
includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.R.C. 149.011(G). The use of "includes" as a preface to "any document" is an indication of expansion and great breadth rather than constriction, restriction, or limitation. Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20.
{¶9} Bencze does not dispute that the email is a "document" and "electronic record as defined in section 1306.01 of the Revised Code," or that it was "created or received by" the Township, or that written legal advice "serves to document the * * * procedures, operations, or other activities of the office." The court may take notice that obtaining legal advice from counsel is a procedure utilized by every public office to inform its policies, decision-making, procedures, operations, and other activities.
Bencze argues instead that:
As of the time of this filing, a final decision regarding the zoning classification for Duke's K9 Dash N' Splash remains forthcoming. Since the email has neither been finalized into the Township's functions, policies, procedures, operations, or activities nor been decided upon, it is arguably not a record under R.C. 149.43 and therefore is not disclosable as a public record.(Response at 8; Zizka Aff. at ¶ 2-6.) In other words, he asserts that written legal advice does not document office activity until it is used to finalize the matter to which the advice pertains. Bencze cites no legal authority for this proposition, and the argument is without merit. Documents in preliminary, intermediate, or draft form that reflect the course of evolving procedures, operations, or other activities, are no less "records" of the office than documentation of the final outcome. See, e.g., Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20; State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 232, 729 N.E.2d 1182 (2000) (draft bargaining agreement); State ex rel. Post v. Schweikert, 38 Ohio St.3d 170, 171-173, 527 N.E.2d 1230 (1988) (statistics compiled for judges to use in criminal sentencing); State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 12-14, 18-21 (draft settlement agreements). The special master finds that written legal advice to the Township meets the definition of a "record" kept by a public office and is therefore subject to release under the Public Records Act unless the claimed exemption for confidential attorney-client communication applies.
Attorney-Client Privilege
Burden of Proof
{¶10} A party asserting attorney-client privilege bears the burden of showing its applicability. State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St.3d 292, 2016-Ohio-2974, ¶ 9, 55 N.E.3d 1091. All exceptions to disclosure are strictly construed against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab. & Com, 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. Any doubt should be resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).
Common Law Attorney-Client Privilege
{¶11} "The attorney-client privilege, which covers records of communications between attorneys and their government clients pertaining to the attorneys' legal advice, is a state law prohibiting release of these records." State ex rel. Toledo Blade Co. v. Toledo-Lucas County Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 22. A record is not exempt merely because it is received from or sent to a public office's legal counsel. Better Gov't Bureau v. McGraw (In re Allen), 106 F.3d 582, 604, (1997). The proponent must show that the communication meets all the following conditions:
"Under the attorney-client privilege, '(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.'" (Citations omitted.)State ex rel. Leslie v. Ohio Housing Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 21. Regarding the required supporting evidence:
The party asserting privilege "must make a minimal showing that the communication involved legal matters. This showing is not onerous and may be satisfied by as little as a statement in the privilege log explaining the nature of the legal issue for which advice was sought." [In re Search Warrant Executed at Law Offices of Stephen Garea, 1999 U.S. App. LEXIS 3861, 1999 WL 137499, *1-*2 (6th Cir. March 5, 1999)]. That showing "must provide the reviewing court with enough information for it to make a determination that the document in question was, in fact, a confidential communication involving legal advice." 1999 U.S. App. LEXIS 3861, [WL] *2.Williams v. Duke Energy Corp., S.D.Ohio No. 1:08-CV-00046, 2014 U.S. Dist. LEXIS 109835, *14-15 (Aug. 8, 2014). See Williamson v. Recovery Ltd. P'ship., S.D.Ohio No. 2:06-CV-292, 2016 U.S. Dist. LEXIS 125640, *8-10 (Sept. 15, 2016). When client communications reflect the exercise of an attorney's professional skills and judgment, or the communication would clearly facilitate the rendition of legal services or advice, then the communication is privileged. State ex rel. Toledo Blade Co. v. Toledo-Lucas County PortAuth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 27, 31.
In support of the privilege, Freedom Township Trustee John Zizka attests:
2. I am a Trustee for Freedom Township, Portage County, Ohio.
3. Assistant Brett Bencze is an Assistant Prosecutor with the Portage County Prosecuting Attorney's Office. He is Board counsel for multiple matters including zoning.
4. I received and am familiar with the May 6, 2021 email from Assistant Prosecutor Bencze to the Township Trustees that is at issue in this case.
5. The Township has received public complaints regarding Duke's K9 Dash N' Splash, a dog event facility.
6. The May 6, 2021 email is wholly the legal advice from Assistant Prosecutor Bencze to the Township for Township zoning classification questions involving Duke's K9 Dash N' Splash. It is a preliminary evaluation of the zoning classification and possible options. The Township has not made a final decision how to classify Duke's K9 Dash N' Splash.
7. The Freedom Township Board of Trustees took no vote or any other official action to release the email.
8. This legal advice was requested and received in between, and not during any, Township meetings.(Zizka Aff. at ¶ 2-6.) Review in camera confirms that the content is legal advice regarding a township zoning matter, explaining the operation of several zoning statutes and outlining options for further township action. Ames concedes the email contains legal advice: "It is undisputed that, through the Email, legal advice was requested and received." (Reply at 3.) The advice was provided by an assistant county prosecutor, acting in his capacity as such, who at the time provided counsel to the Township Trustees on zoning matters. (Zizka Aff. at ¶ 3, 6; Complaint, attached 5/6/21 email, signature block.)
There is no material difference between Ohio's attorney-client privilege and the federal attorney-client privilege. Guy v. United Healthcare Corp., 154 F.R.D. 172, 177 (S.D.Ohio 1993), fn.3.
{¶12} Ames asserts that the legal advice did not concern the township's official duties. (Reply at 2-3.) However, it is undisputed that township trustee duties include the zoning classification matter that is referenced by Ames in his request for the email. The special master finds the evidence satisfies Bencze's burden to prove that the withheld content of the email was related to the purpose of providing requested legal advice from a professional legal adviser acting in his capacity as such.
If the legal advice in the email was personal rather than official, the content would no longer meet the definition of a record documenting the activities "of the office," and would not be subject to access under R.C. 149.43(B).
No Disclosure to Third Party
{¶13} "[T]he attorney-client privilege is destroyed by voluntary disclosure to others of the content of the statement." State v. Post, 32 Ohio St.3d 380, 385, 513 N.E.2d 754 (1987); MA Equip. Leasing I, LLC v. Tilton, 980 N.E.2d 1072, 2012-Ohio-4668, ¶ 20 (10th Dist.). In determining whether a person to whom a communication was disclosed is a third party or not, the party asserting the privilege bears the burden of proof. Id. at ¶ 21 -22. Here, the evidence establishes that the email was requested by and sent only to Freedom Township trustees, who have not taken any official action to release it. (Complaint, attached 5/6/21 email, header content; Zizka Aff. at ¶ 7-8.)
{¶14} Ames next argues that disclosure to him of the header, signature, and other non-confidential portions of the email comprehensively waived the privilege for the rest of the content. He cites no Ohio or federal case law to support this proposition. As noted below, only exempt attorney-client communications may be withheld from an otherwise public record, and any non-privileged portion must be disclosed. Under the facts and circumstances presented, the special master finds that attorney-client privilege was not waived by disclosure to Ames of the non-privileged portions of the email.
Extent of Redaction
{¶15} The Public Records Act provides that only exempt information within an otherwise public record may be withheld:
If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt.R.C. 149.43(B)(1). See Cuyahoga Cty. Bd. of Health v. Lipson O'Shea Legal Group, 2013-Ohio-5736, 6 N.E.3d 631, ¶ 5, 29-31 (8th Dist.), affirmed by Cuyahoga Cty. Bd. of Health v. Lipson O'Shea Legal Group, 145 Ohio St.3d 446, 2016-Ohio-556, 50 N.E.3d 499, ¶ 4, 12; State ex rel. Beacon Journal Publ. Co. v. Bond, 98 Ohio St.3d 146, 2002- Ohio-7117, 781 N.E.2d 180, ¶ 13. When asserting attorney-client privilege, a public office must redact only the exempt portions of the record and make available all the information within the public record that is not exempt. State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 19. The attorney's factual investigation incident to or related to legal advice that the attorney would give on an issue is covered by the privilege. State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 30. Nonexempt portions of an attorney communication such as the general title of the matter being handled, dates of service, financial arrangements, and the like must be disclosed. Anderson at ¶ 15.
{¶16} Here, the email's header, signature block, and an introductory phrase were disclosed to Ames. Based on the Zizka affidavit and review in camera, the special master finds the remaining contents are either privileged communication or inextricably intertwined therewith and were properly redacted. See Narciso v. Powell Police Dept., Ct. of CI. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 8-13 for discussion of redaction vs. "inextricably intertwined."
{¶17} Based on the evidence before the court, the special master concludes that Bencze has met his burden to show the withheld email content falls squarely within the common law confidential attorney-client communication privilege.
The Township's Attorney-Client Privilege is not Abrogated by the Open Meetings Act, R.C. 121.22
The Public Records Act applies to the records of public offices. R.C. 149.43(A)(1); R.C. 149.011(A). The Open Meetings Act applies to meetings of public bodies. R.C. 121.22(B)(1). A township board of trustees is both. R.C. 2743.75 confers no jurisdiction on the Court of Claims over actions to enforce the Open Meetings Act. However, the Court of Claims may consider any provision of R.C. 121.22 that requires disclosure of records, or negates an element of a claimed privilege, for that purpose. See Foulk v. Upper Arlington, Ct. of CI. No. 2017-00132PQ, 2017-Ohio-4249, ¶ 17, 23-25 (attorney-client communication recorded during open session of a public meeting was not made "in confidence").
Ames proposes that for public bodies such as the Township, the claimed attorney client privilege does not exist outside an executive session in an open meeting according to the opinion of the 11th District Court of Appeals in Ames v. Rootstown Twp. Bd. of Trustees, 2019-Ohio-5412, 151 N.E.3d 37, ¶ 38-42 (11th Dist.).(Complaint at 1.) In pre-litigation correspondence Ames stated that "any attorney-client privilege that may have existed has been waived by the General Assembly or by the Trustees themselves," again citing Ames. (Id. at 2.) In response to the court's invitation to provide additional reasoning (Oct. 7, 2021 Order), Ames asserts that
As the 11th District clearly states * * *, a public body's privilege to privately seek and receive advice from their legal counsel does not mean that any time a public body seeks legal advice it is exempt from R.C. 121.22.
The Board argues that the effect R.C. 121.22(G)(3) is merely to limit what may be discussed with its counsel in an open meeting and that any matter may be discussed privately with its counsel outside an open meeting. If that were so, there would have been no need for the legislature to include R.C. 121.22(G)(3) in its enactment of the Open Meetings Act. Hardin at ¶ 77-78.(Reply at 3-4.) Ames' thus posits a statutory waiver of attorney-client privilege on behalf of public bodies that may be summarized as follows:
As a public body, the Freedom Township Trustees may not engage in otherwise privileged attorney-client communication unless that communication takes place during a public meeting in an executive session entered for the limited purposes provided in R.C. 121.22(G)(3).Bencze counters that Open Meetings Act limitations on what a public body may discuss with counsel in executive session has no application to attorney-client communications undertaken outside of a public meeting. (Response at 4-6.)
{¶18} The Open Meetings Act permits a public body, during a meeting, to go into executive session from which the public may be excluded to discuss specific subject matters. To conduct a proper executive session the body must comply with R.C. 121.22(G), which provides, in pertinent part:
(G) * * * [T]he members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters: * * *
(3) Conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action; * * *
(5) Matters required to be kept confidential by federal law or regulations or state statutes. * * *
{¶19} The two cases relied on by Ames compare the applicability of R.C. 121.22(G)(3) and (G)(5) to discussions with legal counsel in executive session. In State ex rel. Hardin v. Clermont County Bd. of Elections, 12th Dist. Clermont Nos. CA2011- 05-045, CA2011-06-047, 2012-Ohio-2569 the appellate court agreed that a board had properly entered executive session to discuss litigation with its attorney under R.C. 121.22(G)(3). Id. at ¶ 74. However, the 12th District rejected the lower court's finding that the board could alternatively enter executive session under subdivision (G)(5) whenever it wished to confer in confidence with its counsel:
In support of its holding, the trial court cited Hamilton Cty. Bd of Commrs., 2002-Ohio-2038, 2002 WL 727023. Addressing a similar argument, the First Appellate District held that:
R.C. 121.22(G)(5) refers to matters that are "required" to be kept confidential. The commissioners, however, are under no legal duty to assert the attorney-client privilege to keep confidential every discussion that they may have with the prosecuting attorney. * * * "[T]he General Assembly, in limiting the circumstances in which such a discussion can be held in executive session, has required a partial waiver of the privilege by the client-public body." The exception in R.C. 121.22(G)(5) is intended, rather, to allow the commissioners to convene an executive session to discuss matters that they are legally bound to keep from the public, such as records exempted from Ohio's Public Records Act (see R.C. 149.43), sealed records of criminal convictions (see R.C. 2953.35), information concerning an abortion without parental consent (see R.C. 2151.85[F]), results of HIV testing by the director of health (see R.C. 3701.241), and the like.
(Emphasis sic. and internal citation omitted.) 2002-Ohio-2038, Id. at *5.
We agree with the First Appellate District's analysis. R.C. 121.22(G) lists the matters a public body may consider privately in an executive session, including matters of imminent or pending litigation when discussed with the public body's counsel, R.C. 121.22(G)(3), and matters required to be kept confidential by state or federal law. R.C. 121.22(G)(5). The exceptions in R.C. 121.22(G) are distinct, separate exceptions that apply in specific situations. At heart, the Board's argument is that R.C. 121.22(G)(5) is a catch-all provision that applies whenever a public body confers with its counsel during an executive session. We disagree. If it were so, there would have been no need for the legislature to include R.C. 121.22(G)(3).Id. at ¶ 77-78.
{¶20} In Ames v. Rootstown Twp. Bd. of Trustees, 2019-Ohio-5412, 151 N.E.3d 37 (11th Dist.) a board entered executive session to discuss matters with its attorney that did not concern pending or impending litigation. Id. at ¶ 43. The court found this improper, but acknowledged that outside the context of executive sessions during meetings,
[t]his and other appellate districts have held that "the OMA 'does not prevent public officials from privately seeking and receiving advice from their legal counsel.'" [Cincinnati Enquirer v. Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio-703 (1st Dist.)] at ¶ 13. See also Holeski v. Lawrence, 85 Ohio App.3d 824, 829, (11th Dist.1993); Hardin, supra, at ¶ 49. Contrary to the Board's argument, however, this does not mean that any time a public body seeks legal advice it is exempt from the OMA; to the contrary: "'the General Assembly, in limiting the circumstances in which such a discussion can be held in executive session, has required a partial waiver of the privilege by the client-public body.'" State ex rel. Cincinnati Enquirer v. Hamilton County Comm'rs, 1st Dist. Hamilton No. C-010605, 2002-Ohio-2038, 2002 WL 727023, (Apr. 26, 2002) at *5, quoting Recchie & Cheroski, Government in the Sunshine: Open Meeting Legislation in Ohio, 37 Ohio St.L.J. 497, 509-510 (1976).
The Twelfth District Court of Appeals addressed this issue in Hardin, supra, stating:
R.C. 121.22(G) lists the matters a public body may consider privately in an executive session, including matters of imminent or pending litigation when discussed with the public body's counsel, R.C. 121.22(G)(3), and matters required to be kept confidential by state or federal law. R.C. 121.22(G)(5). The exceptions in R.C. 121.22(G) are distinct, separate exceptions that apply in specific situations. At heart, the Board's argument is that R.C. 121.22(G)(5) is a catch-all provision that applies whenever a public body confers with its counsel during an executive session. We disagree. If it were so, there would have been no need for the legislature to include R.C. 121.22(G)(3). Id. at ¶¶ 77-78.
We agree with the Twelfth District. By enumerating exceptions in R.C. 121.22(G)(3) and (G)(5), the General Assembly limited the circumstances in which such a discussion can be held in executive session, thus requiring a partial waiver of the privilege outside of R.C. 121.22(G).Id. at ¶ 39-42. Both cases thus distinguish the partial waiver of attorney-client privilege inside a (G)(3) executive session, and the inability of a public body to enter a (G)(5) executive session on the sole basis of attorney-client privilege, from the otherwise unimpaired ability of a public body to engage in confidential attorney-client communications away from meetings.
Read in context, Ames and other cited decisions use "privately" to mean "outside of an open session of a public meeting."
{¶21} Ames concedes that Bencze's "legal advice was requested and received in between, and not during any, Board meetings." (Reply at 2.) Ames does not aver that the communication in this case involved "official action" or "deliberations" that would require the communication to be conducted in a public meeting. R.C. 121.22(A). Even were such an allegation implied, the 11th Circuit holds that informational presentations to a public body that do not involve discussion or deliberation are not required to take place in a public meeting. Ames at ¶ 37. The single email in this case contains only reference to facts and presentation of legal advice by Bencze, not a discussion.
{¶ 22} Neither of the decisions cited by Ames reach outside the context of a public "meeting," and no meeting was involved or required for the communication contained in the requested email. The special master concludes that there has been no waiver, statutory or otherwise, of the attorney-client privileged communication in the email.
Conclusion
{¶23} Based on the pleadings, affidavits, and documents submitted in this action, the special master recommends the court DENY requester's claim for production of the withheld portions of the requested email. It is recommended that court costs be assessed to requester.
{¶24} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this report and recommendation. Any objection shall be specific and state with particularity all grounds for the objection. A party shall not assign as error on appeal the court's adoption of any factual findings or legal conclusions in this report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).