State ex rel. Hogan Lovells U.S., L.L.P. v. Department of Rehabilitation and Correction

• Decision Date: 21 December 2018
• Docket Number: No. 2016-1776,2016-1776
• Citation: 123 N.E.3d 928,2018 Ohio 5133,156 Ohio St.3d 56
• Parties: The STATE EX REL. HOGAN LOVELLS U.S., L.L.P., et al., v. DEPARTMENT OF REHABILITATION AND CORRECTION.
• Court: Ohio Supreme Court

156 Ohio St.3d 56

123 N.E.3d 928

2018 Ohio 5133

The STATE EX REL. HOGAN LOVELLS U.S., L.L.P., et al.,

v.DEPARTMENT OF REHABILITATION AND CORRECTION.

No. 2016-1776

Supreme Court of Ohio.

Submitted April 10, 2018

Decided December 21, 2018

Graydon, Head & Ritchey, L.L.P., John C. Greiner, Cincinnati, and Darren W. Ford, for relators.

Michael DeWine, Attorney General, Charles L. Wille, Principal Assistant Attorney General, and Sarah E. Pierce, Assistant Attorney General, for respondent.

Kennedy, J.{¶ 1} In this original action, relators, Elizabeth A. Och and Hogan Lovells U.S., L.L.P. (collectively, "Hogan Lovells"), seek a writ of mandamus to compel respondent, Ohio Department of Rehabilitation & Correction ("DRC"), to release records related to DRC's acquisition and supply of lethal-injection drugs. We grant the request for a writ of mandamus in part and deny it in part.

Background

{¶ 2} Hogan Lovells U.S., L.L.P., which employs Elizabeth Och, is an international law firm. On March 7, 2016, Hogan Lovells sent correspondence to DRC's public-information e-mail address requesting "copies of public records held by [DRC] relating to current supplies of drugs intended or considered for use in lethal injection executions." The letter detailed 15 specific categories of requested records.

{¶ 3} On March 25, 2016, DRC acknowledged receipt of Hogan Lovells's request. Hogan Lovells alleges it followed up with DRC twice in August, after having heard nothing since DRC's initial acknowledgement in March. DRC admits that it received Och's first follow-up e-mail but "cannot confirm or deny" that it received a second e-mail in August.

{¶ 4} On December 1, 2016, Hogan Lovells filed this original action for a writ of mandamus to compel DRC to release the requested records. Nearly a month later, on December 29, 2016, DRC produced some responsive records but refused to produce several others, claiming an exemption under R.C. 2949.221(B)(1), which prohibits the disclosure of information or records that identify or could reasonably lead to the identification of any person participating in any of several activities related to drugs for lethal injections, including the manufacturing, distribution, or supply of lethal-injection drugs.

{¶ 5} On January 13, 2017, DRC provided a supplemental response and additional records but continued to refuse to produce certain responsive records based on the R.C. 2949.221(B)(1) exemption.

{¶ 6} Attempts at court-sponsored mediation were unsuccessful. On May 31, 2017, we denied DRC's motion to dismiss and granted Hogan Lovells an alternative writ. 149 Ohio St.3d 1416, 2017-Ohio-4038, 75 N.E.3d 234. On June 20, 2017, the parties submitted evidence. On August 3, 2017, DRC filed a motion to strike incorrect statements contained in an affidavit included in its evidence submission. DRC also filed a notice of supplemental authority consisting of a federal magistrate's September 20, 2017 decision denying a request for the production of photographs in In re Ohio Execution Protocol Litigation , S.D. Ohio No. 2:11-cv-1016. On December 29, 2017, we sua sponte ordered DRC to file under seal for in camera inspection the documents it asserts are protected under R.C. 2949.221. 151 Ohio St.3d 1480, 2017-Ohio-9291, 88 N.E.3d 962. DRC complied with the court's order on January 8, 2018.

Documents filed under seal

{¶ 7} The sealed documents include four pages of unredacted documents that DRC sent to Hogan Lovells with redactions as part of DRC's first production of records in December 2016. The redacted versions omitted DRC employee-identification numbers and the names of persons copied on DRC internal correspondence regarding execution-team training.

{¶ 8} The remaining sealed documents have not been disclosed to Hogan Lovells and fall into two categories: (1) records corresponding to entries in DRC's Exhibit 7, a September 23, 2015 "log of privileged communications," and (2) records corresponding to entries in DRC's Exhibit 8, a December 7, 2016 "privilege log of withheld records."

{¶ 9} The sealed records identified in the Exhibit 7 log are written requests for confidentiality in accordance with R.C. 2949.221(D) from six entities and DRC's responses to those requests.

{¶ 10} The sealed records identified in the Exhibit 8 log include e-mail correspondence, purchase orders, packing slips, invoices, inventories, and requisition forms related to DRC's purchase of execution drugs between July 8, 2016, and December 1, 2016.

Legal Analysis

DRC's motion

{¶ 11} DRC filed an unopposed motion to strike incorrect statements contained in an affidavit that it had submitted as evidence. DRC states that paragraph 8 of Lauren Chalupa's original affidavit inaccurately states that DRC did not withhold or redact any responsive records in its possession before March 7, 2016, the date of Hogan Lovells's request. In fact, "[p]artial redactions were applied to two records provided in response to Relators' [15th category of requested records], which were records in [DRC's] possession prior to March 7, 2016." We grant DRC's request to strike Chalupa's original affidavit and replace it with the corrected affidavit attached to its motion.

Mandamus and the Public Records Act

{¶ 12} Mandamus is an appropriate remedy to compel compliance with Ohio's Public Records Act. See R.C. 149.43(C)(1)(b). We have consistently held that the Public Records Act " ‘is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.’ " Gilbert v. Summit Cty. , 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 7, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty. , 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996). To that end, the party withholding records on the basis of an alleged exception to disclosure bears the burden of showing that the records fall within the exception. State ex rel. Cincinnati Enquirer v. Jones-Kelley , 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10. And a "custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception." Id.

R.C. 2949.221 : Confidentiality statute for persons participating in activities concerning lethal-injection drugs

{¶ 13} R.C. 2949.221(B)(1) provides that with respect to records that would identify any person participating in any of several activities related to drugs for lethal injections, including the manufacturing, distribution, or supply of lethal-injection drugs,

[t]he information or record shall be classified as confidential, is privileged under law, and is not subject to disclosure by any person, state agency, governmental entity, board, or commission or any political subdivision as a public record under section 149.43 of the Revised Code or otherwise.

R.C. 2949.221(D) further states:

The protections and limitations specified in divisions (B)(1), (2), and (3) of this section regarding information and records that identify or may reasonably lead to the identification of a person described in divisions (B) or (C) of this section and the person's participation in any activity described in the particular division are rights that shall be recognized as follows:

(1) With respect to a person that is an individual, without any requirement for the person to take any action or specifically apply for recognition of such rights.

(2) With respect to a person that is not an individual, the rights do not exist unless the person requests to have the rights recognized by applying in writing to the director of rehabilitation and correction.

Accordingly, DRC must withhold information or records that "identify or may reasonably lead to the identification" of an entity participating in any of several activities related to drugs for lethal injections, including a drug manufacturer, compounder, distributor, or supplier, if that entity ("person that is not an individual") applies in writing to the director of DRC.

The parties' arguments

{¶ 14} Hogan Lovells contends that DRC failed to satisfy its duty to provide access to all of the requested records in six categories of the March 7, 2016 records request.

{¶ 15} DRC counters that it has fully responded to Hogan Lovells's request, which renders the mandamus action moot. First, DRC maintains that in its December 29, 2016 and January 13, 2017 responses, it provided all records in its possession as of March 7, 2016, that were responsive to Hogan Lovells's 15 discrete categories of requested records. DRC avers that its December response included only two partially redacted records. DRC further states that any other document or record redacted or referred to as withheld in its December 2016 or January 2017 response was created or came into DRC's possession after March 7, 2016. Therefore, DRC argues, these additional records were provided as a courtesy.

Correspondence

{¶ 16} In its fourth and fifth categories of requested records, Hogan Lovells sought "[a]ny and all documents or correspondence * * * relating to attempts by [DRC] to acquire compounded or manufactur[ed] execution drugs" and "[a]ny and all documents or correspondence * * * between January 2015 and the present from or with manufacturers or compounders of medicines intended for use in lethal injection executions."

{¶ 17} The evidence establishes that DRC produced some records responsive to these categories of the request. In particular, DRC provided unredacted copies of e-mails from a representative of Akorn Pharmaceuticals regarding Ohio's request for the drug Nembutal. DRC also provided an unredacted copy of correspondence from Pfizer, Inc., to DRC Director Gary Mohr indicating its policy not to sell seven Pfizer products that can be used in lethal injection to any correctional facility or other affiliated organization.

{¶ 18} DRC's privileged-communications log, which it filed in this case as Exhibit 7, identifies five letters that Mohr received from persons or entities requesting confidentiality under R.C. 2949.221(B). Exhibit 7 also...