Ass'n of Cleveland Fire Fighters IAFF Local 93 v. City of Cleveland

• Decision Date: 07 October 2021
• Docket Number: 110329
• Citation: 2021 Ohio 3602
• Parties: ASSOCIATION OF CLEVELAND FIRE FIGHTERS IAFF LOCAL 93, Requester-Appellee, v. CITY OF CLEVELAND, DEPARTMENT OF LAW, Respondent-Appellant.
• Court: Ohio Court of Appeals

2021-Ohio-3602

ASSOCIATION OF CLEVELAND FIRE FIGHTERS IAFF LOCAL 93, Requester-Appellee, v. CITY OF CLEVELAND, DEPARTMENT OF LAW, Respondent-Appellant.

No. 110329

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 7, 2021

Civil Appeal from the Court of Claims of Ohio Case No. 2020-00373PQ

JUDGMENT AFFIRMED

Diemert & Associates Co., L.P.A., Joseph W. Diemert, Jr. Thomas M. Hanculak, and Mark V. Guidetti, for appellee.

Barbara A. Langhenry, Cleveland Director of Law, William M. Menzalora, Chief Assistant Director of Law, and Timothy J. Puin, Assistant Director of Law, for appellant City of Cleveland, Department of Law.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., JUDGE

{¶ 1} Respondent-appellant, the city of Cleveland Law Department ("the city"), appeals from the Ohio Court of Claims' judgment overruling the city's objections to a special master's report and recommendation and adopting the report and recommendation. The Court of Claims' judgment was a mandate to the city to release all records that were made under the requestor-appellee, the Association of Cleveland Fire Fighters, IAFF Local 93's ("Local 93") public-records request for emails that city of Cleveland Fire Chief Angelo Calvillo ("Chief Calvillo" or "the Chief) sent, received, and was copied on from January 26, 2020, through February 5, 2020.^[1] For the reasons that follow, we affirm.

Procedural and Factual History

{¶ 2} On May 11, 2020, Local 93 made the above-mentioned public records request to the city. On the same day the request was made, the city acknowledged the request and responded to Local 93 that:

[t]his letter seeks to clarify your request. In order to search for the responsive, documents you are requesting, we will have to have keywords in order to use in our search. As this stands, this request is vague and overly broad. * * * Upon receipt of your clarification, the City will further respond to your public record request as required by law. If you have any questions, please reply to this email. Thank you for your attention.

{¶ 3} The following day, May 12, 2020, Local 93 responded to the city's request for clarification, stating that "we are seeking all email correspondence for the time-period as outlined. * * * We believe this request is reasonable and not overly broad." The city refused to search for the Chiefs emails without search terms being provided, and thus, on June 11, 2020, Local 93 filed the within public-records-access action against the city in the Court of Claims pursuant to R.C. 2743.75.

{¶ 4} After this action was filed, in September 2020, Local 93 narrowed its request to the Chiefs email correspondence dealing solely with emergency responses, such as medical emergencies, structure fires, and motor vehicle accidents from the same timeframe as previously requested, January 26, 2020, through February 5, 2020.

{¶ 5} On October 5, 2020, the city notified Local 93 that it had identified documents responsive to its request and that Local 93 could view the records through the city's document management system, GovQA. The records consisted of two audio files; 153 pages of emails with redactions for medical information and motor-vehicle license information; and four emails that were completely redacted based on the attorney-client privilege, with an attached redaction log. The four redacted emails are the subject matter of this appeal.

{¶ 6} Local 93 objected to the redaction of emails, contending that they were not subject to attorney-client privilege. The parties attempted, unsuccessfully, to mediate the dispute. The special master identified the "sole remaining issue" as the "redaction of the withheld records based on attorney-client privilege."

{¶ 7} The city's claim of attorney-client privilege was rooted in emails involving William Menzalora ("Menzalora"), who, at all relevant times, was the city's Chief Assistant Director of Law, Division of Public Safety. Three of the four emails at issue were sent on January 26, 2020, and the fourth was sent the following day, January 27. All four emails were relative to an early morning fire that had occurred in the city on January 26, 2020.

{¶ 8} For background context, the precipitating email (not at issue here) was sent on January 26, 2020, by Norman Michael ("Michael"), identified in the email as "Public Information Officer, Cleveland Division of Fire," to Chief Calvillo; three city employees were copied on the email, but Menzalora was not one of them. Michael detailed the fire and a positive outcome in the email. There were several emails thereafter among city employees relative to media coverage of the fire; Menzalora was not part of that email chain.

{¶ 9} The first email that is the subject of this appeal was sent later that same day, January 26, by Chief Calvillo to Michael McGrath ("McGrath"), then Director of Public Safety for the city; Menzalora was copied on the email and the subject line contained the language "Attorney-Client privilege." The email was two sentences, and as related to Menzalora, involved a scheduling matter.

{¶ 10} The second subject email was sent a few minutes after the first subject email. Chief Calvillo emailed Michael and copied Menzalora, among other city employees. No advice was sought, or questions were posed. Again, the subject line of the email contained the language "Attorney-Client privilege."

{¶ 11} A few minutes later, the third subject email was sent from the Chief to Menzalora, with McGrath copied on it, and contained the "Attorney-Client privilege" language in the subject line. The entirety of the email related to a scheduling matter.

{¶ 12} The final subject email was sent the following day, January 27, 2020. It was from Chief Calvillo to the Assistant Chief, Division of Fire, and Menzalora was copied on it. The subject line contained the "Attorney-Client privilege" language. The greeting of the email was solely to the Assistant Chief, and the body of the email asked him to review a document.

{¶ 13} On December 30, 2020, the special master filed his report and recommendation. The special master found that the city failed to meet its burden of proving that the redacted emails contained privileged attorney-client communication. In light of his conclusion, the special master recommended that the city be ordered to provide Local 93 unredacted copies of the emails. The report and recommendation were signed by the Clerk of the Court of Claims of Ohio, with the word "for" written next to the name of the special master.

{¶ 14} The city filed objections to the special master's report. On January 26, 2021, the Court of Claims overruled the city's objections, adopted the special master's report, and ordered release of the emails. The city now appeals, and assigns the following three assignments of error for our review:

First Assignment of Error: The Court of Claims erred in adopting the special master's report and recommendation of December 30, 2020, (01/26/2021 Decision and Entry), because the report and recommendation applied the incorrect burden of proof in requiring the City to show by clear and convincing evidence that the emails requested by Local 93 are exempt from the Public Records Act by virtue of the attorney-client privilege (12/30/2020 Report and Recommendation, p. 8, passim).

Second Assignment of Error: The Court of Claims erred in adopting the special master's report and recommendation of December 30, 2020, (01/26/2021 Decision and Entry), because the report and recommendation published the headers and content of emails that the City claimed were privileged, before final adjudication of the City's privilege defense, and in doing so gave misleading descriptions of the email headers that omitted the express designation of the emails as attorney-client privileged (12/30/2020 Report and Recommendation, "The Cover Emails and Attachments," pp. 4-5).

Third Assignment of Error: The Court of Claims erred in adopting the special master's report and recommendation of December 30, 2020, (01/26/2021 Decision and Entry), because the report and recommendation was not signed by the special master and therefore was not properly submitted under R.C. 2743.75 (12/30/2020 Report and Recommendation, p. 10).

Law and Analysis

{¶ 15} Ohio's Public Records Act, codified in 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. 14943(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.

{¶ 16} As mentioned, Local 93 filed its complaint pursuant to R.C. 2743.75, which provides a statutory procedure as an alternative to a mandamus action to resolve disputes over public records requests. R.C. 2743.75(A) states:

In order to provide for an expeditious and economical procedure that attempts to resolve disputes alleging a denial of access to public records in violation of division (B) of section 149.43 of the Revised Code, except for a court that hears a mandamus action pursuant to that section, the court of claims shall be the sole and exclusive authority in this state that adjudicates or resolves complaints based on alleged violations of that section. The clerk of the court of claims shall designate one or more current employees or hire one or more individuals to serve as special masters to hear complaints brought under this section. All special masters shall have been engaged in the practice of law in this state for at least four years and be in good standing with the

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