State Ex Rel. Toledo Blade Co. v. Toledo-Lucas County Port Authority , 121 Ohio St. 3d 537 ( 2009 )

[Cite as State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537,
2009-Ohio-1767.]
THE STATE EX REL. TOLEDO BLADE COMPANY v.
TOLEDO-LUCAS COUNTY PORT AUTHORITY.
[Cite as State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth.,
121 Ohio St.3d 537, 2009-Ohio-1767.]
Public records — Proof that records have already been provided — Application
of attorney-client privilege to investigative report prepared by attorney.
(No. 2008-1570 ─ Submitted March 10, 2009 ─ Decided April 21, 2009.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 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
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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
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{¶ 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 * *
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*”); 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.
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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
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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 & Berlin v. United States
(1998), 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379. “The privilege is
intended to encourage ‘full and frank communication between attorneys and their
clients and thereby promote broader public interests in the observance of law and
the administration of justice.’ ” Id. at 403, quoting Upjohn Co. v. United States
(1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584. “In modern law, the
privilege is founded on the premise that confidences shared in the attorney-client
relationship are to remain confidential.” Moskovitz v. Mt. Sinai Med. Ctr. (1994),
69 Ohio St.3d 638, 660, 635 N.E.2d 331.
{¶ 22} R.C. 149.43(A)(1)(v) excepts “[r]ecords the release of which is
prohibited by state or federal law” from the definition of “public record.” “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 these records.” State ex rel. Besser v. Ohio State
Univ. (2000), 87 Ohio St.3d 535, 542, 721 N.E.2d 1044; State ex rel. Nix. v.
Cleveland (1998), 83 Ohio St.3d 379, 383, 700 N.E.2d 12.
{¶ 23} The Blade asserts that the factual portions of the investigative
report are not covered by the attorney-client privilege, because they do not
constitute legal advice. The Blade claims that in this regard, R.C. 2317.02(A)(1)
refutes the port authority’s contention that the factual recitals contained in this
investigative report are privileged. The Blade also cites State v. Kemper, 158
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January Term, 2009
Ohio App.3d 185, 2004-Ohio-4050, 814 N.E.2d 540, in support of its claim. In
Kemper, the appellate court held that testimony by a criminal defendant’s former
attorney that she forwarded notice of a hearing to the defendant was not within the
scope of the R.C. 2317.02 attorney-client privilege.
{¶ 24} The Blade’s argument lacks merit. “In Ohio, the attorney-client
privilege is governed by statute, R.C. 2317.02(A), and in cases that are not
addressed in R.C. 2317.02(A), by common law.” State ex rel. Leslie v. Ohio
Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 18.
“R.C. 2317.02(A), by its very terms, is a mere testimonial privilege precluding an
attorney from testifying about confidential communications. The common-law
attorney-client privilege, however, ‘reaches far beyond a proscription against
testimonial speech. The privilege protects against any dissemination of
information obtained in the confidential relationship.’ ” Id. at ¶ 26, quoting Am.
Motors Corp. v. Huffstutler (1991), 61 Ohio St.3d 343, 348, 575 N.E.2d 116.
{¶ 25} In fact, most courts that have expressly addressed the issue of
whether an attorney’s factual investigations are covered by the attorney-client
privilege have determined that such investigations may be privileged. See, e.g.,
In re Allen (C.A.4, 1997), 106 F.3d 582, 602, and cases cited therein. For
example, in Upjohn, 449 U.S. at 390-391, 101 S.Ct. 677, 66 L.Ed.2d 584, the
United States Supreme Court recognized that the “first step in the resolution of
any legal problem is ascertaining the factual background and sifting through facts
with an eye to the legally relevant.” “[T]he Upjohn pronouncement hardly stands
alone. Courts have consistently recognized that investigation may be an
important part of an attorney’s legal services to a client.” See In re Allen, 106
F.3d at 602, and cases cited therein.
{¶ 26} Notwithstanding the Blade’s argument to the contrary, “the
privilege is not narrowly confined to the repetition of confidences that were
supplied to the lawyer by the client. That cramped view of the attorney-client
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privilege is at odds with the underlying policy of encouraging open
communication; it poses inordinate practical difficulties in making surgical
separations so as not to risk revealing client confidences; and it denies that an
attorney can have any role in fact-gathering incident to the rendition of legal
advice and services.” (Citations omitted; emphasis sic.) Spectrum Sys. Internatl.
Corp. v. Chem. Bank (1991), 78 N.Y.2d 371, 379, 575 N.Y.S.2d 809, 581 N.E.2d
1055.
{¶ 27} “The relevant question is not whether [an attorney] was retained to
conduct an investigation, but rather, whether this investigation was ‘related to the
rendition of legal services.’ ” In re Allen, 106 F.3d at 603, quoting Dunn v. State
Farm Fire & Cas. Co. (C.A.5, 1991), 927 F.2d 869, 875. The attorney-client
privilege “does not require the communication to contain purely legal analysis or
advice to be privileged. Instead, if a communication between a lawyer and client
would facilitate the rendition of legal services or advice, the communication is
privileged.” Dunn, 927 F.2d at 875. “The fact that the task performed could have
been accomplished as easily by a nonlawyer, does not necessarily mean that the
privilege will not apply.” 1 Rice, Attorney-Client Privilege in the United States
(2d Ed.1999) 67, Section 7:9.
{¶ 28} The applicable test espoused by these authorities does not differ
much from the test the court set forth for client communications to attorneys in
Leslie, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, at ¶ 29: “The
[attorney-client] privilege applies when legal advice of any kind is sought from
the legal advisor in that capacity and the client’s confidential communication
relates to that purpose.” “Before the attorney-client privilege applies to
communications relating to investigative services, the client for whom the
investigation was conducted must show that other legal advice or assistance was
sought and that the investigation conducted was integral to that assistance.”
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(Emphasis sic.) 1 Rice, Attorney-Client Privilege in the United States, at 76,
Section 7:16.
{¶ 29} After applying this test to the facts here, we conclude that the
factual investigation conducted by attorney Grigsby was incident to or related to
any legal advice that the attorneys hired by the port authority would give
concerning the mayor’s allegations of misconduct by the port authority president.
More specifically, the attorney’s investigation required her to draw upon her legal
training and experience as well as her knowledge of the law governing the port
authority and its policies and personnel. Both the port authority and its outside
counsel knew that the investigation was replete with various legal issues and
consequences that would be better resolved by the port authority’s employing its
long-time attorney to conduct the investigation and prepare the report. Legal
issues included interpretation of Hartung’s employment contract, an analysis of
ethics law and criminal law, potential tort claims by Hartung and Teigland, and
the construction of a confidentiality provision in the settlement agreement
concerning a previous port authority investigation. Legal analysis related to the
facts in the investigation is integrated throughout the report.
{¶ 30} In this regard, although the sealed report did not make a specific
recommendation regarding the ultimate outcome of Hartung’s employment with
the port authority, the mere fact that an attorney’s investigative report is
inconclusive or intended for future discussion or action is “without significance.”
Spectrum Sys., 78 N.Y.2d at 380, 575 N.Y.S.2d 809, 581 N.E.2d 1055. As the
Court of Appeals for New York reasoned in Spectrum Sys.:
{¶ 31} “Legal advice often begins─and may end─with a preliminary
evaluation and a range of options. More than that may not be possible upon an
initial investigation. Similarly, the absence of legal research in an attorney’s
communication is not determinative of privilege, so long as the communication
reflects the attorney’s professional skills and judgments. Legal advice may be
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grounded in experience as well as research.” (Citation omitted.) Id. Accord
State ex rel. Alley v. Couchois (Sept. 20, 1995), Miami App. No. 94-CA-30, 1995
WL 559973.
{¶ 32} The Blade cites a treatise that criticizes this approach,1 but courts
have rejected the treatise’s view. See, e.g., United States v. Rowe (C.A.9, 1996),
96 F.3d 1294, 1296 (“Although some commentators, including Wright & Graham,
continue to distinguish between fact-finding and lawyering, federal judges
cannot” because of the United States Supreme Court’s decision in Upjohn
[footnote omitted]).
{¶ 33} Therefore, based on the persuasive weight of authority, we hold
that the port authority has established that the investigative report was related to
attorney Grigsby’s rendition of legal services and is thus excepted from disclosure
under the Public Records Act as material covered by the attorney-client privilege.
This holding “furthers the laudatory objectives of the privilege: complete and
candid communication between attorneys and clients.” Leslie, 105 Ohio St.3d
261, 2005-Ohio-1508, 824 N.E,2d 990, ¶ 43. As the uncontroverted evidence
established, because port authority staff members knew that Grigsby was an
attorney, they felt free to speak openly and candidly and with the understanding
that their comments and the investigation were serious legal matters that could
carry serious legal consequences. Nor did the withholding of this privileged
report significantly deter the Blade’s reporting on the matter. The port authority
responded to 18 public-records requests by the Blade from mid-July 2008 until
early August 2008 by making available to the Blade thousands of documents,
including all public records reviewed by the attorneys in connection with the
1. See 24 Wright & Graham, Federal Practice and Procedure (1986) 229, Section 5478 (“The
better view would seem to be that investigative work is not ‘professional legal services’ and that
no privilege applies where the lawyer’s primary function is as a detective”).
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preparation of the investigative report. The Blade reported extensively about the
matter.
{¶ 34} Based on the foregoing, we deny the writ of mandamus.
Statutory Damages and Attorney Fees
{¶ 35} Because the Blade’s mandamus claim lacks merit, we deny its
request for statutory damages and attorney fees. R.C. 149.43(C); cf. Glasgow,
119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 30. Moreover, the
Blade is also not entitled to statutory damages, because it did not introduce
evidence that it transmitted either of its written records requests “by hand delivery
or certified mail,” as required by R.C. 149.43(C)(1).2
Conclusion
{¶ 36} Therefore, because the port authority has established that the
requested investigative report is excepted from disclosure based on the attorney-
client privilege and that it has provided the Blade with the other requested
records, we deny the writ.
Writ denied.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Fritz Byers, for relator.
Spengler Nathanson, P.L.L., James R. Jeffery, Lisa E. Pizza, and Teresa L.
Grigsby, for respondent.
______________________
2. We deny the parties’ requests for oral argument. The “parties’ briefs and evidence are
sufficient to resolve the issues raised in this case.” State ex rel. Allen v. Warren Cty. Bd. of
Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 21.
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