State ex rel. Municipal Constr. Equipment Operators' Labor Council v. City of Cleveland, 2004 Ohio 1261 (Ohio App. 3/12/2004), Case No. 83057.
| Decision Date | 12 March 2004 |
| Docket Number | Case No. 83057. |
| Parties | State, ex rel. Municipal Construction Equipment Operators' Labor Council Relator, v. The City of Cleveland, Respondent. |
| Court | Ohio Court of Appeals |
Stewart D. Roll, Esq., Patricia M. Ritzert, Esq., Paul R. Rosenberger, Esq., Perskey, Shapiro & Arnoff Co., 1410 Terminal Tower, Cleveland, Ohio 44113-2204 , for Relator.
Subodh Chandra, Esq., Director of Law, By: William A. Sweeney, Esq., Asst. Director of Law, Room 106 — City Hall, Cleveland, Ohio 44114-1077, for Respondents.
PETITION FOR WRIT OF MANDAMUS
JOURNAL ENTRY AND OPINION
{¶1} The Municipal Construction Equipment Operators' Labor Council ("Council") the relator, has filed a complaint for a writ of mandamus. The Council seeks an order from this court which requires the City of Cleveland ("City"), the respondent, to provide copies of records that were originally requested for review pursuant to R.C. 149.43. The Council also requests the award of attorney fees. The City has filed two separate motions for summary judgment, which we grant in part for the following reasons. In addition, we award the Council a portion of its request for attorney fees.
{¶2} In April 2003, members of the Council received notice of "a significant increase in the money being charged by Cleveland for providing health insurance to them." On April 16, 2003, the Council made a request for the following records pursuant to R.C. 149.43:
{¶3} "(1) All documents received by Cleveland from or sent by it to the provider or administrator of this health insurance, during the last 36 months, which: (a) memorializes or refers to the per family, married couple and/or individual employee expense, and any actual or proposed change in the per family, married couple and individual employee expense for the provision of that health insurance, and/or (b) memorializes or refers to the summary plan descriptions with respect to that health insurance.
{¶4} "(2) The summary plan descriptions with respect to this insurance for this 36 month period;
{¶5} "(3) All documents which memorialize or refer to how Cleveland determined the amount of the increase in health insurance costs and/or charges that is described in the first paragraph of his letter."
{¶6} On June 3, 2003, the Council received twelve records from the City which contained the following information: (1) rates for single and individual health insurance plans for 2001 and part of 2000 as provided by Kaiser Permanente of Ohio; (2) lists of premiums charged to the City of Cleveland by Medical Mutual of Ohio that became effective on April 1, 2003; (3) lists of rates charged by Medical Mutual of Ohio for single and family contracts for April 1, 2000 to March 31, 2003; (4) bar graph showing trends in renewal rates for benefits between April 1, 1997, and March 31, 2001, as provided by Medical Mutual of Ohio; (5) list of medical discounts provided by Medical Mutual of Ohio for non-Medicare claims; (6) lists of claims paid by Medical Mutual of Ohio between April 1, 2000, and March 31, 2001; (7) lists of renewal rates as provided by Medical Mutual of Ohio for the period of March 31, 2001, and April 1, 2003; (8) lists of renewal rates as provided by Medical Mutual of Ohio for the period of April 1, 1999, and March 31, 2000; (9) savings for administrative services provided by Medical Mutual of Ohio for the "prisoners program" for the period of August 1, 1998 to September 30, 1999; and (10) rate adjustments provided by Medical Mutual of Ohio for the period of August 1, 1997 to July 31, 1998.
{¶7} On June 20, 2003, the Council filed a verified complaint for a writ of mandamus on the basis that the City had not produced all available public records as originally requested. On August 12, 2003, this court conducted a guidelines hearing, at which time the parties were instructed to file briefs. In addition, the City was instructed to provide this court with a complete index of all records related to the Council's request, and to further provide under seal, copies of any disputed records or copies of records that contained partial redactions. On September 9, 2003, the City filed a complete index of records. On October 16, 2003, the City filed under seal, five copies of all disputed records for the purpose of an in-camera inspection by this court. On August 5, 2003, the City filed a motion for summary judgment. On November 12, 2003, the City filed a second motion for summary judgment which contained the affidavit of Thomas A. Antonello, the manager for Employee Relations/Benefits for the City. On November 18, 2003, the Council filed an opposition brief which contained the affidavit of the Council's retained counsel, Stewart D. Roll. On January 14, the City filed a supplemental brief which contained two separate affidavits executed by Thomas A. Antonello. This matter is now ripe for disposition.
{¶8} In order for this court to render a decision with regard to the Council's complaint for a writ of mandamus, we must decide the following: (1) whether the Council's request for public records has been fulfilled; (2) whether the documents produced under seal are exempt from disclosure; and (3) whether the Council is entitled to attorney fees. Before this court is permitted to issue a writ of mandamus, the Council must establish that: (1) the Council possesses a clear legal right to the relief prayed for; (2) the City possesses a clear legal duty to perform the act requested; and (3) the Council possesses no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 451 N.E.2d 225. It must also be noted that a motion for summary judgment requires that the moving party set forth the legal and factual bases supporting the motion. The moving party must delineate with specificity the portions of the record which demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. Specifically, the party moving for summary judgment must satisfy a three-part test: (1) there exists no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion which is adverse to the party that is opposed to the motion for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 375 N.E.2d 46.
{¶9} In the case sub judice, the City has filed two separate motions for summary judgment, a supplement to the motions for summary judgment, and an index of records provided to the Council. The index of records, the exhibits, and the affidavits attached to the City's motions for summary judgment and supplement to the motions for summary judgment, demonstrate that numerous documents have been provided to the Council since the initial delivery of twelve documents which occurred on or about June 3, 2003. In fact, the three affidavits executed by Thomas A. Antonello clearly provide that all documents, which fall within the parameters of the Council's public records request of April 16, 2003, have been delivered. The Council's attempt to create a genuine issue of material fact, vis-a-vis the claim that the City possesses additional undisclosed documents through the affidavit of Stewart D. Roll, must fail. The Council's belief that additional documents exist without some other demonstrative evidence which substantiates the existence of additional unproduced documents, does not alter the fact that the City has indicated that all requested public records have been provided. In fact, the Council does not challenge the affidavits of Thomas A. Antonello, which provide that all requested documents have been provided. Palmer v. Dove, Franklin App. No. 02AP-889, 2003-Ohio-1181. Thus, we find that the City has demonstrated that there exists no genuine issue as to any material fact since all requested public records, that are in possession of the City, have been provided to the Council. The City is entitled to a partial summary judgment as a matter of law because the Council's request for public records has been rendered moot. State ex rel. Gantt v. Coleman (1983), 6 Ohio St.3d 5, 450 N.E.2d 1163; State ex rel. Jerningham v. Cuyahoga County Court of Common Pleas (1996), 74 Ohio St.3d 278, 658 N.E.2d 723.
{¶10} We must next address the issue of whether the documents provided under seal to this court for an in-camera inspection, are exempt from disclosure based on the attorney-client privilege exception, the trade secret exception, or the handwritten personal notes exception. R.C. 149.43(A)(1) defines a "public record" as "any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school units, except that `public record' does not mean any of the following: * * * records the release of which is prohibited by state or federal law." In State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 643 N.E.2d 126, the Supreme Court of Ohio held that records of communications between attorneys and their government clients pertaining to the attorney's legal advice are exempt from disclosure under R.C. 149.43, since the release of these records is prohibited by state law. See, also, TBC Westlake, Inc. v. Hamilton Cty Bd. of Revision (1998), 81 Ohio St.3d 58, 689 N.E.2d 32; Woodman v. Lakewood (1988), 44 Ohio App.3d 118, 541 N.E.2d 1084. Trade secrets remain exempt from disclosure under the exception contained in R.C. 149.43. State ex rel. Besser v. Ohio State Univ. (2000), 87 Ohio St.3d 535, 721 N.E.2d 1044. In addition, the handwritten personal notes of a public employee or official are not public records. State ex rel. Cranford v. Cleveland, Cuyahoga App. No. 83534, 2004-Ohio-633.
{¶11} Upon an in-camera...
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