Requester v. Columbus Dep't of Pub. Safety

Full title: KENNETH J. KUEBLER Requester v. COLUMBUS DEPARTMENT OF PUBLIC SAFETY…

Court: COURT OF CLAIMS OF OHIO

Date published: Dec 30, 2020

2020 Ohio 7050 (Ohio Ct. Cl. 2020)

Opinion

Case No. 2020-00525PQ

12-30-2020

KENNETH J. KUEBLER Requester v. COLUMBUS DEPARTMENT OF PUBLIC SAFETY Respondent

Special Master Jeff Clark

REPORT AND RECOMMENDATION

{¶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., L.L.P. v. Dept. of Rehab. & Corr., 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 9, 2020, requester Kenneth Kuebler made a public records request to the deputy directors of respondent Columbus Department of Public Safety (CDPS) for any and all public records associated with his referral for investigation by an outside law firm. (Complaint at 2-3.) On July 10, 2020, one of the deputy directors responded:

Pursuant to your public records request, there are two associated emails. These emails are not being provided due to Attorney Client Privilege. However, an attachment to one of the emails is being provided pursuant to your request (see Twitter attachment dated 7/1/20).

(Id. at 2.)

{¶3} On September 1, 2020, Kuebler 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, CDPS filed a response on November 13, 2020. On November 30, 2020, CDPS filed unredacted copies of the withheld emails, under seal. On December 1, 2020, Kuebler filed a reply. On December 17, 2020, CDPS filed a sur-reply.

Burdens of Proof

{¶4} The special master is required to recommend to the court the disposition of this claim "based on the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint." R.C. 2743.75(A), (F)(1). 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. Then, if the public office has withheld an identified record on the basis of a public records exemption, the public office carries the burden to prove that the requested record falls squarely within the exemption. Id. at ¶ 35. Exceptions to disclosure must be strictly construed against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab. & Corr., 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).

Attorney-Client Privilege

{¶5} "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. The party asserting the attorney-client privilege bears the burden of showing the applicability of the privilege. State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St.3d 292, 2016-Ohio-2974, ¶ 9; MA Equip. Leasing I, LLC v. Tilton, 10th Dist. Franklin Nos. 12AP-564 and 12AP-586, 2012-Ohio-4668, ¶ 20-22. To satisfy this burden, 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. A bare, general assertion that the privilege applies to communications does not meet the proponent's burden. Rather,

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).¹ 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). However, when communications with a client 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 Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 27, 31. A communication need not be the initial request for legal advice or the final delivery of the legal advice sought to fall within the privilege. See State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 29-31.

1 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; Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., S.D.Ohio No. 2:07-CV-116, 2012 U.S. Dist. LEXIS 121830 (August 28, 2012).

CDPS summarizes its assertion of attorney-client privilege in this case as follows:

The police legal advisor sent the two withheld emails in accordance with his ongoing responsibility to provide legal counsel to the City under the Columbus Charter, Section 67. Both emails were sent within the City—the first email was sent to Chief Quinlan, Director Pettus, and Deputy Director Speaks; and the second email was sent to Director Pettus, Deputy Director Speaks, and Deputy Chief of Staff Pishotti. Speaks Aff., ¶¶ 5 - 6. The entire content of both emails contained legal analysis. The legal analysis related to social media posts, which were believed to be authored by members of the Division of Police. Id. at ¶ 7. The emails provide analysis as to what was known and unknown about the social media posts and a legal analysis of the content of the social media posts. Id. at ¶ 8. The emails have not been shared outside the City of Columbus. Id. at ¶ 9.

(Response at 6.) CDPS asserts the exception only as to text content. CDPS has otherwise disclosed to Kuebler the attachment to one email (Complaint at 2), and the headers, signature blocks, and disclaimers within both emails. (Response, Speaks Aff. Exhibits A and B.) The author of the emails is an assistant city attorney who provides legal counsel to CDPS. (Speaks Aff. at ¶ 3-4.) The court may take judicial notice that the Columbus City Attorney's Office provides legal counsel to all city departments and officials.

The Communications are Related to Legal Advice

CDPS filed an affidavit attesting to the nature of the email contents as follows:

5. Exhibit A, which is attached to my affidavit, is a true and accurate copy of an email I received from Attorney Furbee on July 2, 2020 at 10:59 am. The email was also sent to Ned Pettus, Jr., the Director of the Department of Public Safety and Thomas Quinlan, the Chief of the Division of Police.

6. Exhibit B, which is attached to my affidavit, is a true and accurate copy of an email I received from Attorney Furbee on July 2, 2020 at 9:57pm. The email was also sent to Ned Pettus, Jr., the Director of the Department of Public Safety and Kate Pishotti, Deputy Chief of Staff to Mayor Andrew J. Ginther.

7. Both emails sent on July 2, 2020 contain legal advice regarding the content of social media posts believed to be authored by current Division of Police officers.

8. The legal advice consisted of what facts where known and not known regarding the social media posts and a general legal analysis of the contents of the social media posts.

(Speaks Aff. at ¶ 5-8.) On review in camera, the special master finds that the above attestation accurately describes the content of the withheld emails. In addition, the email text contemplates consequent, although indefinite, city actions to be taken by or with the advice of counsel. CDPS's supporting evidence and argument thus satisfies, at least minimally, its burden to prove that the content of both emails related to the purpose of providing legal advice from a professional legal adviser in his capacity as such.

Alleged Disclosure of Communication to a Non-Essential Third Party

{¶6} "[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.

{¶7} Kuebler asserts that copying the July 2, 2020 9:57 p.m. email to the mayor's deputy chief of staff, Kate Pishotti, waived attorney-client privilege because there is no showing that she was a necessary party to this communication. Kuebler asserts that Pishotti was "not an employee of the Department of Public Safety," "is not involved in disciplining Department of Public Safety employees," and that Ms. Pishotti's position "is entirely divorced from the Public Safety Department." (Reply at 8.) Kuebler argues that "the City Attorney has offered no justification for her presence, let alone a justification meeting the exacting threshold of 'nearly indispensable.'" (Id.)

{¶8} CDPS counters that "[T]he Mayor's Office, of which the deputy chief of staff is an employee, supervises and directs the Department of Public Safety." (Sur-reply at 4.) CDPS offers no affidavit or assertion that Ms. Pishotti was tasked by the Mayor's office with supervision of, direction of, or liaison with CDPS in the particular matter underlying this specific email. However, in camera review of the emails reveals that counsel had met with unidentified administrative staff from an unnamed city division impliedly related to the matter, and one email described activity allegedly affecting the safety of the mayor's office. The email thus appears to relate information regarding an attorney-client discussion on a matter that directly affects the mayor's office, made to a city employee/client within the chain of command.²

2 Kuebler argues that Ms. Pishotti's involvement must be shown to be "nearly indispensable," but this standard has been required only for non-employees and agents, not client employees. See Foulk v. Upper Arlington, Ct. of Cl. No. 2017-00132PQ, 2017-Ohio-4249, ¶ 20-21, and cases cited therein.

{¶9} CDPS's mere reliance on Ms. Pishotti's position description, and her possible roles relating to CDPS, tests the lower limit of the minimal showing necessary to establish that this particular communication was made in confidence. However, under the facts and circumstances before the court including in camera review, the special master finds that attorney-client privilege was not precluded or waived by inclusion of Ms. Pishotti as a party correspondent.

{¶10} On the basis of the evidence before the court, the special master concludes that CDPS has shown that the withheld communications fall squarely within the common law attorney-client communication privilege.

Records Containing Exemptions Must Be Redacted in a Manner That Discloses Non-Exempt Contents

{¶11} 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.³ State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 19; State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 22. Portions of an attorney communication that are nonexempt, such as the general title of the matter being handled, underlying facts of the case, dates of service, financial arrangements, and the like must be disclosed. Anderson at ¶ 15; Plogger v. Myers, 2017-Ohio-8229, 100 N.E.3d 104, ¶ 9 (8th Dist.).

3 Unless the exempt portion is "inextricably intertwined" with the remaining exempt material. Although this exception to the rule is not alleged by the Board, see Narciso v. Powell Police Dept., Ct. of Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 8-13 for discussion of redaction vs. "inextricably intertwined." --------

{¶12} As of the time of decision, CDPS has disclosed the headers, signature blocks, and disclaimers for both, and an attachment to one email upon review of the withheld email text, the remaining contents are either privileged communication, or inextricably intertwined with the remainder of the concise messages.

Conclusion

{¶13} 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 records. Because respondent did not disclose the non-exempt headers, signature blocks, and disclaimers until after this litigation was commenced, the special master recommends court costs be assessed to respondent.

{¶14} 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).

/s/_________

JEFF CLARK

Special Master Filed December 30, 2020
Sent to S.C. Reporter 3/2/21