Opinion
2021-00390PQ
12-21-2021
PATRICIA STUBBLEFIELD Requester v. MONTGOMERY COUNTY CHILDREN SERVICES Respondent
Sent to S.C. Reporter 2/2/22
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. & 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.
{¶2} On March 16, 2021, requester Patricia Stubblefield made a request to respondent Montgomery County Children Services (MCCS) for "public records from the Human Resources (HR) Department of Montgomery County, * * * from November 2020 - March 2021," specifically, "any and all emails involving information, communication or references to myself Patricia Stubblefield." (Complaint at 2, 32.) On March 23, 2021, counsel for MCCS responded: "The records responsive to your request will be gathered and a legal review will be conducted on the records." On April 29, 2021, MCCS provided Stubblefield with 253 pages of email records, some of which had been redacted in their entirety as alleged attorney-client privileged communications. (Response at 10; Complaint at 1, 4-256.)
{¶3} On July 12, 2021, Stubblefield filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). MCCS filed a motion to dismiss (Response) on October 22, 2021, accompanied by notice that it had provided Stubblefield with a revised set of records from which some previous redactions had been removed. (Id. at 7, 11.) MCCS filed an affidavit and privilege log on November 11, 2021. On November 23, 2021, MCCS filed unredacted copies of the withheld emails as well as copies of the records as revised on October 22, 2021, 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 MCCS' assertion that the redacted portions of withheld emails constitute privileged attorney-client communication is 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 argument to deny the claim on the merits. It is therefore recommended the motion to dismiss be denied.
Burdens of Proof
{¶6} The overall burden of persuasion in a public records case is on requester to prove her right to relief by the requisite quantum of evidence. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d, ¶ 34. First, requester must prove she sought an identifiable public record, and the public office did not make the record available. Id. at ¶ 33. Then, if the public office has withheld a 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).
{¶7} The parties do not dispute that Stubblefield requested reasonably identified communication records and that MCCS has withheld some of those records in whole or in part. Analysis thus turns to the public records exception that MCCS asserts as the basis for withholding.
Attorney-Client Privilege
{¶8} "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.
{¶9} 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). Nor does a bare, general assertion that the privilege applies to a communication meet the burden of proof. 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). Only 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, is the communication 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.
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).
{¶10} MCCS claims it initially properly redacted the entirety of email "threads" as attorney-client privileged despite the inclusion of plainly non-privileged emails, and continued to redact all email headers, salutations, and signature blocks from its revised disclosure of October 22, 2021. (Response at 7-8.) However, the Public Records Act provides that only the 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. Specifically, 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 (affirming the "explicit duty" to do so in R.C. 149.43(B)(1)); State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 22. To the extent MCCS' initial withholding was based on an erroneous understanding of the requirement to produce non-exempt portions of email strings or other records, the special master finds that that withholding was in violation of R.C. 149.43(B)(1) and (2).
{¶11} As to the remaining withheld emails, the Supreme Court has consistently required in camera inspection of records before determining whether they are excepted from disclosure, and "[i]f the court finds that these records contain excepted information, this information must be redacted and any remaining information must be released." (Emphasis added.) State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio- 199, 985 N.E.2d 467, ¶ 22 (attorney-client privilege), citing State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), paragraph four of the syllabus. The special master has conducted in camera review of the unredacted emails in this case and finds that no information in any email falls squarely within the attorney-client privilege.
Respondent's Evidence
{¶12} MCCS summarizes its assertion of attorney-client privilege in this case as follows:
The emails were communications between a client (employees and administrators of the Montgomery County Children Services) and their attorneys (Assistant Prosecuting Attorneys of the Montgomery County Prosecutor's Office - statutory counsel for MCCS). The communications contain legal analysis, conclusions, and advice from the attorneys to their clients. These communications have not been shared with anyone outside the attorneys office or the MCCS, which means the privilege has not been waived.(Response at 6.) MCCS filed a privilege log that contains no specific explanation of how any portion of any email falls squarely within the Leslie factors. MCCS also filed counsel's affidavit containing conclusory statements that the communications "pertain to" legal advice, rather than explaining the nature of any public records legal issue for which advice was sought:
10. The MCPO is statutory counsel for Montgomery County Job and Family Services per R.C. 309.09.
11. As such, communications between Assistant Prosecuting Attorneys ("APAs") and employees of Montgomery County Job and Family Services may be attorney-client privileged communications if said communications pertain to requests for legal advice and the provision of legal advice.
12. Many of the email communications contained in Bates Numbers MC-000001 through MC-000011 represent communications pertaining to legal advice. This legal advice is both requested by employees of Montgomery County Job and Family Services and is provided by APAs Todd Ahearn and Nathaniel Peterson.
13. More specifically, the requested legal advice is on the subject of the response to Requestor's public records request.(Response, Peterson Aff. at ¶ 10-13.)
{¶13} On review in camera, the special master finds the emails do nothing more than schedule invitees for a future meeting to discuss Stubblefield's public records request. MCCS' claim that scheduling the meeting "pertains to" a request for legal advice is apparently used in the attenuated sense that attorney-client communication might take place at that time. However, "[t]he mere fact that a meeting occurred, or did not occur, does not constitute a 'communication' for purposes of the attorney-client privilege." McFarland v. West Congregation of Jehovah's Witnesses, Lorain, OH, Inc., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 70 (9th Dist.) citing State v. Mitchell, 9th Dist. Summit No. 17029, 1995 Ohio App. LEXIS 5071, *23, 1995 WL 678624, *9 (November 15, 1995); Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., Ct. of Cl. No. 2019-00789, 2020-Ohio-4856, ¶ 27. Accord: In re Motor Fuel Temperature Sales Practices Litig., D.Kan. No. 07-MD-1840-KHV, 2010 U.S. Dist. LEXIS 146815, *77 (Nov. 8, 2010) (arranging conference calls and meetings); Ullmann v. State, 230 Conn. 698, 712, 647 A.2d 324 (1994).
The privilege does not apply to the fact of communication between a client and attorney. It is the substance of the communication which is protected, not the fact that there has been communication. United States v. Kendrick, 331 F.2d 110, 113 (4th Cir. 1964); Howell v. United States, 442 F.2d 265 (7th Cir. 1971).Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 484.
{¶14} Finally, the only pre-meeting "advice" from counsel to MCCS was that it take the routine administrative steps required upon receipt of a public records request (Sur-reply, MC-000007 - March 23, 2021 8:55 AM email, under seal). Notably, this advice was sent to MCCS eight minutes after counsel sent an email to Stubblefield promising that these same administrative steps would be taken: "The records responsive to your request will be gathered and a legal review will be conducted on the records." (Sur-reply, MC-000018, under seal.) MCCS disclosed an employee's response to this advice: "I will begin to collect." (Sur-reply, MC-000017 under seal.)
Although mistakenly filed under seal, pages MC-000012 to MC-000022 are merely copies of records as provided to Stubblefield on October 22, 2021. (Nov. 18, 2021 Peterson Aff. at ¶ 7-8.) The special master quotes from the unredacted portions of these disclosed copies.
Counsel's March 23, 2021 email to Stubblefield constituted disclosure of the advice to a third party and thus a waiver of the privilege, even had it been legal in nature. See 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.). The special master finds MCCS has not met its burden to show that the administrative fact of responsive record gathering was kept confidential by MCCS and its counsel.
Records Created Subsequent to the Request
{¶15} Although not asserted as a defense by MCCS, public records requests are not prospective or continuing in nature, and thus MCCS had no duty to provide subsequently created records. State ex rel. Hogan Lovells U.S., LLP. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 29 (a requester is entitled to only such records as exist on the date of the request). Stubblefield's request was made on March 16, 2021. (Sur-reply, MC-000015.) Any records created after this date do not fall within the reach of the request, and non-production of later records does not constitute a violation of R.C. 149.43(B). All the redacted emails contained in MC-000001 through MC-000011, under seal, bear Sent dates of March 17, 2021 or later. Although the instant action may be disposed of on this facially apparent defense, nothing prevents Stubblefield from making a new and actionable public records request for these same emails.
{¶16} Based on the evidence before the court, the special master finds that MCCS fails to show that any portion of any remaining withheld email falls squarely within the common law attorney-client communication privilege. However, the special master further finds that the remaining withheld records were created after the request and failure to produce them could not constitute a violation of R.C. 149.43(B).
Conclusion
{¶17} The special master recommends the court deny the claim for production. It is recommended costs be assessed equally between the parties.
{¶18} 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).