Hicks v. Union Twp., 2022-00024PQ

CourtCourt of Claims of Ohio
Writing for the CourtJEFF CLARK, SPECIAL MASTER
Citation2022 Ohio 1618
PartiesCHRISTOPHER RICHARD HICKS Requester v. UNION TOWNSHIP, CLERMONT COUNTY, TRUSTEES Respondent
Decision Date21 April 2022
Docket Number2022-00024PQ

2022-Ohio-1618

CHRISTOPHER RICHARD HICKS Requester
v.

UNION TOWNSHIP, CLERMONT COUNTY, TRUSTEES Respondent

No. 2022-00024PQ

Court of Claims of Ohio

April 21, 2022


Sent to S.C. Reporter 5/13/22

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 December 23, 2021, 7:11 AM, requester Christopher Hicks made a request to respondent Union Township, Clermont County, Trustees (the Township) for, as relevant to the remaining claims,

all documents from the 'trustee' meeting conducted on Friday, December 17. * * * If there was any opinion asked for or received by the law advisor prior to conducting the meeting, I also request a copy of that document ad [sic] any communications on the matter

(Complaint at 3.) The Township produced almost 200 pages of records, with some redactions based on attorney-client privilege and "confidential information." (Id. at 1.) On December 31, 2021, Hicks followed up with the Township on the documents provided:

I am requesting unredacted versions of the attached pages (including the 6 pages of a memo titled "Trustee Conflicts of interest." While I guess one could assert privilege, they need not and what would be the public purpose
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in hiding the opinions of counsel on what seem to be questions of hiding a meeting from the public and on trustee conflicts of interest.

(Id. at 4.) The Township had provided Hicks with a copy of the memorandum leaving caption information visible but with all substantive content redacted. (Response at 10, 40- 45.) The Township declined Hicks' invitation to waive attorney-client privilege for any information in the records. (Complaint at 6.)

{¶3} On January 11, 2022, Hicks filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). His claims challenge redactions made to four email records (Id. at 1, Exhs. 1-4) and to a "Trustee Conflicts of Interest" memorandum authored by the law director. Following unsuccessful mediation, the Township filed a motion to dismiss (Response) on March 28, 2022. On April 1, 2022, Hicks filed a reply. On April 12, 2022, the Township filed unredacted copies of the withheld records under seal and on April 13, 2022 filed a memorandum in support of motion to dismiss (Sur-reply). On April 14, 2022, Hicks filed a response to the sur-reply that was not authorized by statute or by order of the special master. In the interest of justice and pursuant to R.C. 2743.75(E)(2), the special master hereby directs the clerk to accept Hicks' response to the sur-reply for filing.

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.

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{¶5} The Township moves to dismiss the complaint on the grounds that it properly redacted only the portions of withheld records that 1) constitute privileged attorney-client communication, 2) are subject to statutory or constitutional rights of privacy, and/or 3) are not responsive to the request.[1] On consideration the special master finds that none of these defenses is 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 his 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 he 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 Hicks requested reasonably identified records and that the Township has withheld portions of those records through redaction.

Attorney-Client Privilege

{¶8} The Township asserts that portions of Complaint Exhibits 1-3 and all substantive content of the "Trustee Conflicts of Interest" memorandum fall squarely within

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the common law attorney-client privilege. "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, 980 N.E.2d 1072, 2012-Ohio-4668, ¶ 20-22 (10th Dist.). 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.
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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).[2] 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.

{¶10} "[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).

Because a client's voluntary disclosure of confidential communications is inconsistent with an assertion of the privilege, voluntary disclosure of privileged communications to a third party waives a claim of privilege with regard to communications on the same subject matter.

(Citations omitted.) MA Equip. Leasing I, LLC at ¶ 20. 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. In addition to any communications directly shared, disclosure to a third party waives the claim of privilege with regard to all other communications on the same subject matter. Hollingsworth v. Time Warner Cable, 157 Ohio App.3d 539, 2004-Ohio-3130, 812 N.E.2d 976, ¶ 65. The 'same subject matter' standard is, however, applied narrowly. Id.

{11} 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...

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