Opinion
Case No. 2019-01186PQ
06-30-2020
JAMES SPEHAR Requester v. OPPORTUNITIES FOR OHIOANS WITH DISABILITIES Respondent
REPORT AND RECOMMENDATION
{¶1} Ohio's 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. The Act provides a remedy under R.C. 2743.75 if the court of claims determines that a public office has denied access to records in violation of R.C. 149.43(B). R.C. 149.43(C)(1)(a).
{¶2} On or about October 31, 2019, requester James Spehar made a public records request to respondent Opportunities for Ohioans With Disabilities (OOD) seeking the following material:
Hello please email me the OOD POSITION STATEMENT documents matching any of these keywords:
Spehar
22A-20 19-02998
COL 81 47221 08022019
CLE 81 47330 09152019
COL E1 47330 09152019
COL E1 47285 08262019
CLE 84 47260 08152019
CLE 81 47312 09062018
22A-2019-03426F
22A-20 19-03265F
22A-2019-03337F(Complaint at 3.) OOD initially denied the request as failing to identify the records sought with reasonable specificity, but during subsequent correspondence provided some responsive records and withheld others. (Id. at 3-10, 12-19; Response at 3-4, Lampke Aff. at ¶ 3, Exh. C.) Subsequent to the filing of the complaint, OOD filed and served a copy of the responsive September 24, 2019 Position Statement (Response at 4, Respondent's Exh. F), noting that Spehar had also attached an unredacted copy of this record to his complaint. (Response at 4-5; Complaint at 8-10.) OOD withheld the exhibits to the September 24, 2019 Position Statement, noting that the asserted exceptions to their public records release would expire when the underlying proceeding concludes. (Response at 5.)
22A-2019-03125F
{¶3} On December 24, 2019, Spehar filed a complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). On March 11, 2020, the court was advised that mediation had failed to resolve all disputed issues. On March 26, 2020, OOD filed a combined response to complaint and motion to dismiss (Response), asserting: 1) that it had previously provided most of the requested records to a person in privity with Spehar (Kelly Spehar), rendering the request as to those records moot, and 2) that the remaining withheld records are excepted from public records release as; a) trial preparation records, R.C. 149.43(A)(1)(g) and (A)(4), and b) attorney work product. On April 9, 2020, OOD filed a copy of the withheld records under seal. On April 15, 2020, Spehar filed a reply, and on May 11, 2020, OOD filed a sur-reply.
Burdens of Proof
{¶4} The Public Records Act (PRA or Act) is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7. In mandamus, "[a]lthough the PRA is accorded liberal construction in favor of access to public records, 'the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence.'" State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15. In an enforcement action under R.C. 2743.75, a requester must likewise establish public records violations by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).
{¶5} If a public office asserts an exception to the PRA, the burden of proving the exception rests on the public office. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15. Exceptions to disclosure under the Act must be strictly construed against the public records custodian, and the custodian bears the burden to establish applicability of an exception. State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. Id.; State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. 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).
Suggestion of Mootness
{¶6} In an action to enforce R.C. 149.43(B), a public office may produce requested records prior to the court's decision and thereby render a claim for their production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22. Subsequent to the filing of Spehar's complaint, OOD filed and served a copy of the December 21, 2018 Position Statement and attachments with its March 26, 2020 Response. (Response, Exh. C.) I find that the claim for production of records is moot with regard to these documents.
{¶7} OOD separately argues that it had previously provided copies of the December 21, 2018 Position Statement to Kelly Spehar, who receives surface mail at the same address as her spouse, James Spehar. (Id., Lampke Aff. at ¶ 2.) OOD contends that James Spehar is in privity with Kelly Spehar so that provision of the records to her constitutes provision to him. OOD asserts that it need not respond to a later, duplicate request by James Spehar. Spehar argues that he is not in privity with Kelly Spehar for the purposes of his request. Spehar attests that he is not assisting, representing, or otherwise acting in concert with Kelly Spehar in connection with her employment proceedings with OOD, and that he does not have shared access to the records that were provided to her. (Spehar Aff. at 1.) However, because all the requested documents that were previously provided to Kelly Spehar have now been provided to James Spehar by OOD, I find that the court need not consider the defense of duplicative request.
OOD states that it never provided a copy of the September 24, 2019 Position Statement to Kelly Spehar, and thus does not assert the duplicative request defense for these records. (Response at 3-5, Lampke Aff. at ¶ 6.)
{¶8} Further, OOD has now filed and served a copy of the Equal Employment Opportunity (EEO) Policy that was attached to its September 24, 2019 Position Statement. (Sur-reply., Exh. 11-12.) I find that the claim for production of this record is also moot.
{¶9} Finally, the evidence reflects that Spehar otherwise obtained a copy of the September 24, 2019 Position Statement, without attachments, prior to filing his complaint. (Complaint at 8-10.) Moreover, OOD has filed and served another copy. (Response at 4-5, Exh. F.) I find that the claim for production of this record is also moot.
Remaining Records at Issue
{¶10} The court's order of April 2, 2020 required Spehar to "3. List the specific remaining responsive records that respondent has failed to produce." In response, Spehar listed the following:
A - OOD Position statement dated 12-21-2018 referencing Spehar which the respondent has identified as records denied to me as a duplicative request.Spehar's response is specific and clear as to the remaining responsive records sought. He lists only the 12-21-18 Position Statement, and Exhibit B from the 9-24-19 Position Statement, as remaining at issue. Because all the records thus specified have now been provided, Spehar's remaining claims for production of records are moot.
B - Exhibit B which is the OOD equal employment opportunity policy of public record referenced in 9-24-19 position statement CLE B1 (47260) 08152019 example I provided to Mr. Lampke.
{¶11} However, because Spehar made no express waiver, dismissal, or other affirmative statement of abandonment of his request for other attachments to the 9-24-19 Position Statement, this report will briefly address the exceptions asserted by OOD.
The terms "exception" and "exemption" are used interchangeably in case law, and in this report.
{¶12} R.C. 149.43(A)(1) enumerates specific exceptions from the definition of "public record," including trial preparation records, R.C. 149.43(A)(1)(g), as well as a catch-all exception for "[r]ecords the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). OOD asserts that the withheld records are exempt in their entirety as trial preparation records pursuant to R.C. 149.43(A)(1)(g) and (A)(4), and as common law attorney work product. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). These exceptions overlap to the extent that the statutory definition of trial preparation record expressly includes "the independent thought processes and personal trial preparation of an attorney."
Trial Preparation Records
As used in R.C. 149.43,
"Trial preparation record" means any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, aR.C. 149.43(A)(4). The exception must be supported by affirmative evidence:
civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.
Material cannot be excepted from disclosure simply by an agency's broad assertion that it constitutes trial preparation records. For the trial preparation exception to apply, the records must have been "specifically compiled in reasonable anticipation" of litigation. R.C. 149.43(A)(4).Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 502, 589 N.E.2d 24 (1992). The Supreme Court notes that:
While Ohio's public records law does not require the record to be compiled solely in anticipation of litigation, this court has consistently held that "* * * exceptions to disclosure enumerated in R.C. 149.43 are to be construed strictly against the custodian of public records and that all doubt should be resolved in favor of disclosure." Lesak, supra, at 4, 9 OBR at 54, 457 N.E. 2d at 823.State ex rel. Natl. Broad. Co. v. Cleveland, 38 Ohio St.3d 79, 85, 526 N.E.2d 786 (1988).
{¶13} OOD asserts that "A position statement includes arguments supporting OOD's defense to the OCRC confidential investigation in addition to documents OOD compiles and labels in anticipation of presenting them to the trier of fact." (Response at 2-3, Lampke Aff. at ¶ 5.) The September 24, 2019 Position Statement and attachments were filed in response to charges of discrimination in proceedings before the Ohio Equal Opportunity Commission. (Id. at 7, Lampke Aff. at ¶ 6.) OOD argues that the September 24, 2019 Position Statement and all attachments are thus exempt as trial preparation materials. There is no dispute that this exception, to the extent it applies, does not expire until the relevant litigation has concluded. In his reply, Spehar does not address OOD's assertion of R.C. 149.43(A)(1)(g) and (A)(4), or attorney-client privilege.
{¶14} However, several of the exhibits attached to the September 24, 2019 Position Statement are manifestly public records that were created solely or primarily for other purposes prior to the discrimination proceedings. Such records remain public records even when placed in the file of an attorney preparing for trial:
Once clothed with the public records cloak, the records cannot be defrocked of their status. See State ex rel. Carpenter v. Tubbs Jones (1995), 72 Ohio St.3d 579, 580, 651 N.E.2d 993, 994 ("Non-exempt records do not become 'trial preparation records' simply because they are contained within a prosecutor's file")State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 378, 662 N.E.2d 334 (1996) (copy of 9-1-1 tape).
{¶15} Weighing the evidence submitted by OOD, coupled with review of the records submitted under seal, I find that OOD has met its burden to show that the following fall squarely within the definition of "trial preparation record" as set forth in R.C. 149.43(A)(4):
Exhibit C - Email Correspondence [those dated after September 3, 2019]
Exhibit D - ODI Investigation on claim # 2622
Exhibit 2 - Ms. Jennifer Adair's statement
Exhibit 3 - Mr. Jordan Hader's statement The above were either created after the filing of Ms. Spehar's OCRC Complaint initiating the civil proceedings at issue, and/or were created by the investigator assigned to conduct the investigation into Ms. Spehar's complaint, and/or were prepared as memoranda for the investigator.
{¶16} I find that OOD has not met its burden to show that the remaining withheld documents fall squarely within the definition of "trial preparation record." First:
Exhibit A - Ms. Spehar's OCRC Complaint
Exhibit C - Email Correspondence [those dated prior to September 3, 2019]
Exhibit B - OOD EEO Policy (50-EEO-03)
Exhibit E - Ms. Spehar's appeal request and acceptance
Exhibit 1 - Copy of Ms. Spehar's internal complaint # 20180318-KS These documents were either created prior to the initiation of the subject civil proceeding (e.g., Exh. B), or were created and filed by a person other than counsel for or employees of OOD. Second, although not listed in the body of the September 24, 2019 Position Statement or its table of contents the following were sent to the OCRC with the position statement:
1) blank Ohio Civil Service Application,
2) Workforce Composition Report; and,
3) document titled Know Your Rights. (OOD Response to June 8, 2020 Order at 1.) These documents were all created prior to the initiation of the subject civil proceeding, and at least two were created solely or primarily for other purposes (Civil Service Application and Know Your Rights flier). OOD does not offer any details regarding the creation of the workforce composition report.
Attorney Work Product
{¶17} OOD separately asserts that the withheld material is excepted as common law attorney work product. The Supreme Court of Ohio has explained the attorney work product protection as follows:
The work-product doctrine emanates from Hickman v. Taylor (1947), 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451, in which the Supreme Court of the United States recognized that "[p]roper preparation of a client's case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. * * * This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways - aptly though roughly termed by the Circuit Court of Appeals in this case as the 'Work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."
Addressing these concerns, the work-product doctrine provides a qualified privilege protecting the attorney's mental processes in preparation of litigation, establishing "a zone of privacy in which lawyers can analyze and prepare their client's case free from scrutiny or interference by an adversary." However, as the Supreme Court of the United States has explained, "the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system," and the privilege afforded by the work-product doctrine is not absolute.Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp, 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 53, ¶ 54-55 (internal citations omitted).
{¶18} The September 24, 2019 Position Statement itself is signed by the OOD EEO Program Administrator, not by counsel. The EEO does not allege that legal counsel personally prepared the position statement or any attached document on its behalf, but only that "All documents prepared in response to the Ohio Civil Rights Commission investigation and proceedings were prepared and submitted under my review and direction in anticipation of litigation." (Response, Lampke Aff. at ¶ 5.) I find the bare assertion that documents not signed by counsel were prepared "under [his] review and direction," without further explanation, is insufficient to show that the position statement or any attachment reflects the attorney's mental processes in preparation of litigation. On the evidence submitted, I find that OOD fails to meet its burden to show that the common law attorney work product privilege applies to the withheld records.
Explanation of Denial
{¶19} Spehar asserts that OOD violated its obligation to provide an explanation, including legal authority, for its initial denial of his public records request, as required by R.C. 149.43(B)(3). (Reply at 3-4.) However, OOD explained the day after the initial request that it was denied because Spehar did not reasonably identify the particular records sought. (Complaint at 3-5.) When Spehar revised the request, OOD explained the same day that it was denying the request as duplicative of a request previously fulfilled for Spehar's spouse. (Id. at 5.) While Spehar rejects the accuracy and validity of these explanations, they do satisfy the requirement of the statute that "an explanation" be provided. However, OOD did not cite the legal authority underlying these initial denials.
{¶20} Spehar complains that OOD's later reliance on statutory and common law exceptions to disclosure of the records was untimely. However, R.C. 149.43(B)(3) provides that "[the initial] explanation shall not preclude the public office * * * from relying upon additional reasons or legal authority in defending an action commenced under division (C) of this section." The statutory provision for supplementation of denial explanations, including legal authority, does not contain a timeliness standard.
Alleged Non-Compliance with Office Policy
{¶21} Finally, Spehar asserts that OOD failed to follow the provisions of its public records policy, see R.C. 109.43(E) and 149.43(E)(2), stating that "Mr. Lampke violated several statutes [sic] of the OOD public records request policy." (Reply, Spehar Aff. at 2, 4.) However, even if OOD failed to comply with its own public records policy, Spehar fails to show that such an act or omission constitutes an enforceable violation of R.C. 149.43(B).
But see R.C. 149.43(B)(7) for an enforceable policy provision that is not implicated in this case. --------
Conclusion
{¶22} Upon consideration of the pleadings, attachments, and affidavits filed in this case, I recommend the court find that requester's claims for production of records have been rendered moot by production subsequent to the filing of the complaint, and by requester's demonstrated possession of a copy of the September 24, 2019 Position Statement. In the event the court finds that the claim for production is not moot, I recommend in the alternative the court find that the attorney work product privilege does not apply to any of the withheld records, but that the statutory trial preparation exception applies to the records specifically identified above. I further recommend the court find that respondent complied with its duty to provide requester with an explanation for its denial, and that respondent had no enforceable duty to comply with provisions of its office public records policy. I recommend that court costs be assessed equally between the parties.
{¶23} Note: the following requirements for filing objections have been tolled by the March 27, 2020 Order of Chief Justice of the Supreme Court of Ohio and the Governor's declaration of a public health emergency until July 30, 2020 or the end of the emergency, whichever is sooner. See 03/27/2020 Administrative Actions, 2020-Ohio-1166.
{¶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).
/s/_________
JEFF CLARK
Special Master Filed June 30, 2020
Sent to S.C. Reporter 9/22/20