State ex rel. Toledo Blade v. Toledo-Lucas

Citation2009 Ohio 1767,905 N.E.2d 1221,121 Ohio St.3d 537
Decision Date21 April 2009
Docket NumberNo. 2008-1570.,2008-1570.
CourtUnited States State Supreme Court of Ohio

Fritz Byers, Toledo, for relator.

Spengler Nathanson, P.L.L., James R. Jeffery, Lisa E. Pizza, and Teresa L. Grigsby, Toledo, for respondent.


{¶ 1} This is an original action for a writ of mandamus to compel a port authority to provide access to both an investigative report prepared by a law firm on behalf of the port authority and the associated documentation reviewed by the attorneys to prepare the report. Because the report is excepted from disclosure under the Public Records Act by the attorney-client privilege, and the port authority has already provided access to the requested additional documentation, we deny the writ.

Investigation and Termination

{¶ 2} Respondent, the Toledo-Lucas County Port Authority, is a political subdivision of the state of Ohio that was created in 1955 and operates under R.C. Chapter 4582. Spengler Nathanson, P.L.L., is a Toledo law firm that has a long history of representing the port authority in various legal matters.

{¶ 3} Beginning in 2001, the port authority joined with several other northwest Ohio governmental entities in a consortium to request federal funds. From 2002 through 2007, the consortium contracted first with a lobbying firm with which Kathy Teigland was associated and then with Teigland herself to act as a lobbyist for the consortium. During this period, the port authority employed James Hartung as its president. In addition, Hartung served as administrator of the consortium beginning in 2006.

{¶ 4} In July 2008, the mayor of the city of Toledo, a consortium member, informed the port authority that Hartung had been engaged in an extramarital affair with the lobbyist and that Hartung may have improperly funneled money to the lobbyist and used his influence to her advantage. The port authority contracted with attorney Teresa Grigsby of the Spengler Nathanson law firm to investigate the factual and legal issues concerning the mayor's allegations. The port authority considered it essential that its long-time outside counsel conduct the investigation to identify the pertinent factual and legal issues. The chairman of the port authority anticipated that some port authority staff might be reluctant to speak openly and candidly unless the confidentiality of the investigation could be ensured.

{¶ 5} Spengler Nathanson, through attorney Grigsby and other attorneys, reviewed and analyzed port authority records and prepared an investigative report. The attorneys distributed numbered copies of the investigative report in sealed envelopes to the members of the port authority's board of directors during an executive session of a regularly scheduled meeting. The board members were informed that the report was confidential and could not be shown or disclosed to any third party. Following a subsequent special session, copies of the report were returned to the law firm.

{¶ 6} On August 1, 2008, after the special meeting, the board voted unanimously to terminate Hartung's employment with the port authority immediately and for cause. The port authority publicly announced that Hartung had been terminated because he had pursued an inappropriate relationship with a vendor to the consortium in violation of the port authority's policies.

Records Requests and Mandamus Case

{¶ 7} Relator, the Toledo Blade Company ("the Blade"), is an operating division of Block Communications, Inc., a corporation that publishes a newspaper of general circulation. On August 1, 2008, the Blade requested that the port authority provide it with copies of the investigative report and the associated documentation. After the port authority refused the Blade's request based on attorney-client privilege, the Blade submitted a second request. The port authority ultimately made available to the Blade all of the responsive documents that the attorneys had reviewed in preparing the investigative report.

{¶ 8} The Blade filed this action for a writ of mandamus to provide access to the report and supporting records under R.C. 149.43, the Ohio Public Records Act. The Blade also requested statutory damages and attorney fees. After the port authority filed an answer, we granted an alternative writ and ordered the port authority to submit a copy of the investigative report under seal.

{¶ 9} This cause is now before this court for our determination of the merits.

Mandamus in Public-Records Cases

{¶ 10} "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; R.C. 149.43. In resolving public-records mandamus claims, "we construe R.C. 149.43 liberally in favor of broad access and resolve any doubt in favor of disclosure of public records." State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13.

{¶ 11} Respondent, Toledo-Lucas County Port Authority, is a political subdivision of the state of Ohio created under R.C. Chapter 4582. See R.C. 4582.22(A) ("A port authority created pursuant to this section is a body corporate and politic * * *. The exercise by such port authority of the powers conferred upon it shall be deemed to be essential governmental functions of the state * * *"); see also 1994 Ohio Atty.Gen.Ops. No. 94-020 (port authority is itself a political subdivision). A "public office" for purposes of the Public Records Act "includes any * * * political subdivision * * * established by the laws of this state for the exercise of any function of government." R.C. 149.011(A). Therefore, the port authority is a public office subject to R.C. 149.43.

{¶ 12} In addition, the requested records are records generally subject to R.C. 149.43. Under R.C. 149.011(G), records are subject to the Public Records Act if they are documents created or received by the public office that "serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." The port authority received its attorney's investigative report and has custody of the records that the attorney reviewed in the investigation, and these records document the port authority's decisions and actions.

{¶ 13} Therefore, unless the requested records have either already been provided to the Blade or are excepted from disclosure, the Blade would be entitled to disclosure of the records under R.C. 149.43.

Documentation Associated with the Investigative Report

{¶ 14} The Blade is not entitled to a writ compelling disclosure of the requested documentation associated with the investigative report, because the evidence is uncontroverted that it has received this documentation. In general, providing the requested records to the relator in a public-records mandamus case renders the mandamus claim moot. State ex rel. Toledo Blade Co. v. Ohio Bur. of Workers' Comp., 106 Ohio St.3d 113, 2005-Ohio-6549, 832 N.E.2d 711, ¶ 16.

{¶ 15} Although the Blade is correct in stating that a respondent in a public-records case must establish that it has provided the requested records to moot the mandamus claim, see State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 9, the port authority has met its burden here with the affidavit of its board of directors chairman, William J. Carroll, specifying that "all Port Authority documents which the attorneys reviewed and considered in connection with the underlying investigation, including resolutions, contracts, invoices, financial records, correspondence, and the e-mails, were made available to the Blade." The Blade's reliance on Dupuis, in which the public-records custodians offered no proof that they had provided the record "aside from the bare unverified assertions in their merit brief," is thus misplaced. Id. at ¶ 9.

{¶ 16} Therefore, the Blade's claim for the records associated with the investigative report is denied based on mootness. The Blade's claim for the requested investigative report remains.

Exceptions to Disclosure: In General

{¶ 17} "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. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the 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.

{¶ 18} The port authority asserts in its answer that the Blade is not entitled to inspect and copy the investigative report because the report is excepted from disclosure under the attorney-client privilege and the work-product privilege.

Work Product

{¶ 19} The port authority has not established that the investigative report is excepted from disclosure as work product. In its merit brief, the port authority appears to have abandoned reliance on this exception by stating that "the separate legal issue of whether the report also constitutes privileged attorney work product need not be resolved." Therefore, we will not address this exception. See Glasgow, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 26 (the court did not address a public-records request, because the relator failed to specifically argue it in the merit brief).

Attorney-Client Privilege

{¶ 20} The primary issue in this case is whether the attorney-client privilege excepts from disclosure under R.C. 149.43 the investigative report prepared by the port authority's outside counsel.

{¶ 21} "The attorney-client privilege is one of the oldest recognized privileges for confidential communications." Swidler &...

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