State ex rel. Anderson v. City of Vermilion
| Decision Date | 21 November 2012 |
| Docket Number | No. 2012–0943.,2012–0943. |
| Citation | 980 N.E.2d 975 |
| Parties | The STATE ex rel. ANDERSON, Appellant, v. The CITY OF VERMILION, Appellee. |
| Court | Ohio Supreme Court |
Seeley, Savidge, Ebert & Gourash Co., L.P.A., and Andrew D. Bemer, Cleveland, for appellant.
Weston Hurd, L.L.P., Shawn W. Maestle, and Timothy R. Obringer, Cleveland, for appellee.
{¶ 1} Appellant, Jean A. Anderson, appeals from a judgment denying her request for a writ of mandamus to compel appellee, the city of Vermilion, Ohio, to provide copies of certain itemized billing statements for attorney services rendered to the city. Because the city did not establish that the entirety of the requested statements are exempt from disclosure under the Public Records Act, we reverse that portion of the judgment of the court of appeals and remand the cause for further proceedings. We affirm the portion of the judgment denying Anderson's request for an award of statutory damages and attorney fees.
{¶ 2} Anderson served as the mayor of Vermilion from January 2006 through December 2009. During her administration, the law firm of Marcie & Butler, L.P.A. ("Marcie & Butler") provided legal services to the city, and the firm's provision of services extended into the next mayor's term. The new mayor, Eileen Bulan, appointed Kenneth Stumphauzer as the city's director of law. Stumphauzer's law firm, Stumphauzer, O'Toole, McLaughlin, McGlamery & Loughman Co., L.P.A. ("Stumphauzer & O'Toole"), billed the city over $27,000 for legal services provided during the first six weeks of the new mayor's administration.
{¶ 3} Because she thought that the annual legal fees expended by the new administration would far exceed the fees incurred during her administration, Anderson made several records requests to permit public scrutiny of the city's expenditure of funds for legal services. On May 25, 2010, Anderson personally delivered a written public-records request to the city's finance director for copies of certain records, including "all itemized billing statements received from Kenneth Stumphauzer, Stumphauzer & O'Toole, [and] Marcie & Butler, for January, February, March and April 2010."
{¶ 4} The city acknowledged its receipt of Anderson's request but denied it on the basis that the requested legal bills are exempted from disclosure by the attorney-client privilege:
{¶ 5} In September 2010, Anderson filed a petition in the court of appeals. Anderson sought a writ of mandamus to compel Vermilion to provide copies of the nonexempt portions of the requested itemized attorney-billing statements. Anderson also requested an award of statutory damages and attorney fees. The court granted an alternative writ, and the city submitted an answer to the petition. Anderson filed a motion for summary judgment, and the city filed a brief in opposition. The court of appeals granted Anderson's motion for an in camera review of the requested attorney-billing statements, and the city filed the statements under seal.
{¶ 6} On April 25, 2012, the court of appeals denied Anderson's motion for summary judgment, granted summary judgment in favor of Vermilion, and denied the writ.
{¶ 7} This cause is now before the court on Anderson's appeal as of right.
{¶ 8} The court of appeals denied Anderson's motion for summary judgment and, in essence, granted summary judgment in favor of Vermilion by determining that "there remains no genuine issue of material fact and [the city] is entitled to judgment as a matter of law." 6th Dist. No. E–10–040, 2012-Ohio-1868, 2012 WL 1493744, ¶ 13. See also Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 17 ().
{¶ 9} "Summary judgment is appropriate when an examination of all relevant materials filed in the action reveals that ‘there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ " Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C). "In reviewing whether the trial court's granting of summary judgment was proper, we apply a de novo review." Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6.
{¶ 10} The court of appeals entered summary judgment in favor of Vermilion on Anderson's mandamus claim for itemized attorney-billing statements. "Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. "We construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records." State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.
{¶ 11} Vermilion claims—and the court of appeals found—that the requested itemized attorney-billing statements are exempt from disclosure based on the attorney-client privilege. "Exceptions to disclosure under the Public Records Act, R.C. 149.43, 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, paragraph two of the syllabus.
{¶ 12} R.C. 149.43(A)(1)(v) excludes "[r]ecords the release of which is prohibited by state or federal law" from the definition of "public record" for purposes of the Public Records Act. "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 [those] records." State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 542, 721 N.E.2d 1044 (2000).
{¶ 13} More specifically, we have held that the narrative portions of itemized attorney-billing statements containing descriptions of legal services performed by counsel for a client are protected by the attorney-client privilege. State ex rel. Dawson v. Bloom–Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 28–29; see also State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 36.
{¶ 14} Anderson requested itemized attorney-billing statements for services provided to Vermilion by Stumphauzer, Stumphauzer & O'Toole, and Marcie & Butler for January, February, March, and April 2010. The Stumphauzer & O'Toole billing statements include the title of the matter being handled, e.g., the case name or general subject, a narrative description of the legal services provided, the hours expended, and the amount due. The Marcie & Butler statements include the dates the services were rendered, a narrative description of the services rendered, the hours and fee rate for the services provided, and the amount of money billed.
{¶ 15} Under the Public Records Act, insofar as these itemized attorney-billing statements contain nonexempt information, e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services, they should have been disclosed to Anderson. "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).
{¶ 16} The parties submitted the requested attorney-billing statements under seal for the court of appeals' review. As we have held, the nonexempt portions of the records submitted under seal in public-records mandamus cases must be disclosed:
(Emphasis added.) State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 31, 661 N.E.2d 180 (1996), quoting State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), paragraph four of the syllabus.
{¶ 17} Consequently, in McCaffrey, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, at ¶ 35–37, we held that the respondents in a public-records mandamus case had complied with a records request by providing copies of civil-case logs that had been redacted to exclude the narrative portions of the logs that were covered by attorney-client privilege.
{¶ 18} The city nevertheless makes three separate arguments to support the court of appeals' conclusion. Vermilion first claims that Anderson waived her right to the nonexempt portions of the requested attorney-billing statements because after the court of appeals' judgment, she requested summaries of the information in attorney b...
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