Smith v. Ohio State Univ. Office of Compliance & Integrity

• Decision Date: 28 July 2022
• Docket Number: 2021-00400PQ
• Citation: 2022 Ohio 2657
• Parties: SCOTT ELLIOT SMITH Requester v. OHIO STATE UNIVERSITY OFFICE OF COMPLIANCE AND INTEGRITY Respondent
• Court: Ohio Court of Claims

2022-Ohio-2657

SCOTT ELLIOT SMITH Requester v. OHIO STATE UNIVERSITY OFFICE OF COMPLIANCE AND INTEGRITY Respondent

No. 2021-00400PQ

Court of Claims of Ohio

July 28, 2022

Sent to S.C. Reporter 8/4/22

DECISION AND ENTRY

PATRICK E. SHEERAN, JUDGE

{¶1} Respondent Ohio State University Office of Compliance and Integrity (OSU) objects to a Special Master's Report and Recommendation in this public-records case. The Court sustains some of OSU's objections, overrules some of OSU's objections, and concludes that one of OSU's objections is moot.

I. Background

{¶2} On May 27, 2021, Requester sought documents from OSU through a public-records request.^[1] The requested documents concern a program that Requester referred to in the request as the "Strauss Individual Settlement Program." OSU represents that the Strauss Individual Settlement Program is related to civil litigation against OSU in a federal district court.^[2]

{¶3} OSU failed to produce all the requested documents. Requester thereafter filed a complaint against OSU in this Court in which Requester alleged a denial of access to public records in violation of R.C. 149.43(B). The Court appointed a Special Master who referred the case for mediation. After mediation failed to successfully resolve all disputed issues between the parties, the case was returned to the docket of the Special Master. OSU later moved to dismiss Requester's Complaint.

{¶4} On May 12, 2022, the Special Master issued a Report and Recommendation (R&R). The Special Master identified issues raised in the case as follows: "The issues in this action are 1) what records responsive to the requests are in the possession or under the jurisdiction of OSU, and 2) what portions of these records fall squarely within any exception to the [Ohio Public Records Act]." (R&R, 4.) The Special Master notes that the requests "expressly include OSU records kept in the possession of counsel Carpenter Lipps & Leland LLP ('CLL') as an agent of the university." (R&R, 4.) The Special Master further notes:

The Strauss Individual Settlement Program is OSU's responsibility, and thus "Ohio State necessarily approved the parameters of the final version of the Program Documents that were publicly posted [online]." (Sur-reply, Barthel Aff. at ¶ 8.) However, OSU delegated the design and drafting of the Program Documents to various agents. "CLL was appointed by the Ohio Attorney General's Office to serve as Special Counsel" (Response, Barthel Aff. at ¶ 2) to represent OSU in "settling the litigation against it." (Sur-reply at 5, Barthel Aff. at ¶ 1, 8-10.) In performing this fiduciary role, CLL served at OSU's direction and on OSU's behalf. CLL was tasked with designing the Strauss Individual Settlement Program.

In turn, CLL retained attorney Matt Garretson and Wolf Garretson LLC ("WG") "to assist CLL regarding the design of the Program and to independently administer the Program." (Response at 13, Barthel Aff. at ¶ 5; Sur-reply, Barthel Aff. at ¶ 8.) Because CLL was acting as an agent and not the principal for this duty, it is also correct to say that "OSU has retained the services of Matthew Garretson to independently administer the Program." (Emphasis added.) (Response, Exh. A Program Description at OSU 000008, -000035, and -000065.) Regardless of what obligations WG did or did not owe directly to OSU in the program design role, the actions of CLL in designing and drafting the Program are imputed to and have been approved by its principal, OSU.

(R&R, 5-6.) The Special Master has determined that responsive records in the possession of Carpenter Lipps & Leland LLP are public records of OSU by either direct agency, or under the quasi-agency test. The Special Master states, "OSU provides only conclusory assertions that the withheld records constitute attorney-client, attorney work- product, trial preparation, expert witness material, and Prof.Conduct R.1.6 material. In response to the court's invitation to produce evidence for the elements of each exception, OSU has merely repeated the text of the exceptions, none of which are apparent from the records themselves." (R&R, 9.)

{¶5} The Special Master recommends denying OSU's motion to dismiss, because the matter has been fully briefed on grounds that have been subsumed in arguments to deny the claim on the merits. (R&R, 3.) The Special Master further "recommends the court issue an order granting the claim for production of all withheld records filed under seal. It is recommended the court order that requester is entitled to recover from respondent the costs associated with this action that he has incurred, including the twenty-five-dollar filing fee. R.C. 2743.75(F)(3)(b)." (R&R, 28.)

{¶6} On May 25, 2022, OSU filed objections to the R&R. OSU asks the Court to sustain its objections, grant its motion to dismiss, and enter judgment in its favor.

{¶7} Requester has not filed a timely written response to OSU's objections.

II. Law and Analysis

{¶8} R.C. 2743.75(F)(2) governs objections to a special master's report and recommendation. Under R.C. 2743.75(F)(2), either party "may object to the report and recommendation within seven business days after receiving the report and recommendation by filing a written objection with the clerk and sending a copy to the other party by certified mail, return receipt requested. * * * If either party timely objects, the other party may file with the clerk a response within seven business days after receiving the objection and send a copy of the response to the objecting party by certified mail, return receipt requested. The court, within seven business days after the response to the objection is filed, shall issue a final order that adopts, modifies, or rejects the report and recommendation."

{¶9} Pursuant to R.C. 2743.75(F), any objection to a report and recommendation "shall be specific and state with particularity all grounds for the objection." OSU presents eight objections:

"Objection 1: The Special Master Erred In Finding That Responsive Documents in CLL's Possession Were Public Records Of Ohio State 'By Either Direct Agency, or Under The Quasi-Agency Test.'

"Objection 2: The Special Master Erred in Finding That None Of The 'Claimed Exceptions' To The Public Records Act Applied.

"Objection 3: The Special Master Erred In Finding That The Common Law Attorney-Client Privilege Did Not Apply.

"Objection 4: The Special Master Erred In Finding That The Trial Preparation Records Exception To The Public Records Act Did Not Apply.

"Objection 5: The Special Master Erred In Finding That The Attorney Work Product Doctrine Did Not Apply.

"Objection 6: The Special Master Erred In Finding That The Non-Testifying Consultant Privilege Did Not Apply.

"Objection 7: The Special Master Erred In Finding That Rule 1.6 Of the Ohio Rules of Professional Conduct Did Not Apply.

"Objection 8: The Special Master Erred In Finding That No Portion Of The Responsive Documents Contained Privileged Or Protected Information."

{¶10} The Court considers OSU's relevant objections together for ease of analysis.

{¶11} Here, the material requested by Requester consists of the sealed material that has been provided to the Court, which concerns information involving communications between Wolf Garretson LLC and Carpenter Lipps & Leland LLP, as agent and principal, about the implementation of The Ohio State University's program to reimburse victims of the alleged misconduct of former Ohio State physician, Dr. Richard Strauss.

{¶12} Under Ohio law, exceptions to disclosure under the Ohio Public Records Act are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. Cincinnati Enquirer at ¶ 10. Because OSU has refused to provide requested records, OSU is required to show that the withheld records fall squarely within a statutory exception. See State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 23.

{¶13} R.C. 149.43 pertains to the availability of public records. For purposes of R.C. 149.43, a "public record" "means records kept by any public office[.]" R.C. 149.43(A)(1). See R.C. 149.011(G) (defining the term "records," as used in R.C. Chapter 149).^[3] A public record, however, does not include trial preparation records, R.C. 149.43(A)(1)(g), or records the release of which is prohibited by state or federal law. R.C. 149.43(A)(1)(v).

{¶14} For purposes of R.C. 149.43, a trial preparation record "means any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding including the independent thought processes and personal trial preparation of an attorney." R.C. 149.43(A)(4). Under Ohio law, settlement documents do not constitute a "trial preparation record" for purposes of R.C. 149.43(A)(4). State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 17. In Dupuis, the Ohio Supreme Court determined that an Ohio appellate court erred when the appellate court concluded that a proposed settlement agreement was exempt from disclosure as a trial-preparation record. Dupuis at ¶ 17. The Ohio Supreme Court stated,

As the appellate court in State ex rel. Kinsley v. Berea Bd. of Edn. (1990), 64 Ohio App.3d 659, 663, 582 N.E.2d 653, 7 Anderson's Ohio App. Cas. 318, observed in rejecting a comparable argument concerning the applicability of the trial-preparation exemption to a settlement agreement:

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