Chillicothe Gazette v. Chillicothe City Schools , 2019 Ohio 965 ( 2019 )

[Cite as Chillicothe Gazette v. Chillicothe City Schools, 2019-Ohio-965.]
CHILLICOTHE GAZETTE Case No. 2018-00950PQ
Requester Judge Patrick M. McGrath
v. ENTRY ADOPTING AND
MODIFYING RECOMMENDATION
CHILLICOTHE CITY SCHOOLS OF SPECIAL MASTER
Respondent
{¶1} On December 26, 2018, special master Clark issued a report and
recommendation in this case. This public records case was filed by reporter Jona Ison
of the Chillicothe Gazette (Gazette) in accordance with R.C. 2743.75 against Chillicothe
City Schools (Chillicothe CS) wherein the Gazette alleges a denial of access to public
records. The special master recommended denying Chillicothe CS’s motion to dismiss.
(Report and Recommendation, p. 4). Turning to the merits, and pertinent to the
Gazette’s objections, the special master found that Chillicothe CS must provide the
Gazette with a copy of the November 1, 2017 e-mail From Jennifer Bergquist, a claims
specialist for Liberty Mutual, to Jon Saxton, former superintendent for Chillicothe CS.
Id. at 21. The special master also found that “the common-law attorney-client privilege
does not apply to any portion” of an October 13, 2017 letter from Sandra McIntosh to
the Chillicothe School Board’s representative, former Superintendent Jon Saxon. Id. at
24.
{¶2} R.C. 2743.75(F)(2) states, in part: “[e]ither party may object to the report and
recommendation within seven business days after receiving the report and
recommendation by filing a written objection with the clerk * * *. If either party timely
objects, the other party may file with the clerk a response within seven business days
after receiving the objection and send a copy of the response to the objecting party by
certified mail, return receipt requested.” Chillicothe CS timely filed its objections on
January 8, 2019. The Gazette received the objections via certified mail on
Case No. 2018-00950PQ -2- ENTRY
January 14, 2019, and timely filed its response on January 18, 2019. Chillicothe CS
raises the following two objections:
Objection 1: The Board objects to the Special Master’s recommendation
that it produce a copy of the October 13, 2017 letter from Attorney Sandra
McIntosh to the Board because that letter is protected by attorney-client
privilege.
{¶3} Chillicothe CS makes the following three arguments: (1) “both Attorney
McIntosh and the Board’s President, Steven Mullins, have submitted affidavits to the
Court that they understood all communications between them to be protected by the
attorney-client privilege because Attorney McIntosh was, at all relevant times, working
as the Board’s attorney;” (2) “the subject letter comes within the protection of the
attorney-client privilege;” and (3) “production of the subject letter is at odds with the
‘underlying policy of encouraging open communication’ between attorney and client.”
(Objections, p. 3). The Gazette argues that Chillicothe CS “offers no challenge to the
facts or the law supporting the Special Master’s decision. There is no basis then to
provide the relief Chillicothe seeks.” (Reply, p. 2).
{¶4} As an initial matter, this court explained that “a party who claims that an
exception applies is required to prove that the requested records fall squarely within the
exception by a preponderance of the evidence.” White v. ODRC, Court of Claims Case
No. 2018-00762PQ, January 10, 2019 Decision, p. 4. Thus, the court applies a
preponderance-of-the-evidence standard of proof relative to Chillicothe CS’s claim of an
exception to disclosure.
{¶5} The Supreme Court of Ohio stated: “[u]nder the attorney-client privilege, ‘(1)
[w]here legal advice of any kind is sought (2) from a professional legal adviser in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) unless the protection is waived.’ Reed
v. Baxter (C.A.6, 1998), 134 F.3d 351, 355-356; Perfection Corp. v. Travelers Cas. &
Case No. 2018-00950PQ -3- ENTRY
Sur., 153 Ohio App.3d 28, 2003-Ohio-3358, 790 N.E.2d 817, ¶ 12. Except under
circumstances not relevant here, only the client can waive the privilege. * * * .” State ex
rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d
990, ¶ 21.
{¶6} Further, “the common-law attorney-client privilege * * * ‘reaches far beyond
a proscription against testimonial speech. The privilege protects against any
dissemination of information obtained in the confidential relationship.’” State ex rel.
Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-
1767, 905 N.E.2d 1221, ¶ 24 (citations omitted). The court also notes that in the
context of attorney-billing statements, the Supreme Court of Ohio stated that “[u]nder
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 [appellant].” State ex rel. Anderson v. City of Vermilion,
134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 15.
{¶7} In this context, the court finds that the special master erred in finding that
“Chillicothe CS fail[ed] to meet its burden to support, or specifically assert, that this letter
was a communication pertaining to an attorney’s legal advice.” (Report and
Recommendation, p. 23). The court’s review of the October 13, 2017 letter reveals that
some of the information contains legal advice and guidance related to the
representation of Chillicothe CS. While the court agrees that not every communication
between attorney and client is privileged, the court finds here that the letter does contain
communication between a lawyer, Attorney McIntosh, and her client the Chillicothe CS
Board, that facilitates the rendition of legal services or advice.
{¶8} However, the court agrees with the special master that part of the content of
the letter is the Statement of Insured Client’s Rights provided in accordance with the
Ohio Rules of Professional Conduct. The Statement of Insured Client’s Rights is
Case No. 2018-00950PQ -4- ENTRY
verbatim from the Ohio Rules of Professional Conduct Pages 51-52. As such,
Chillicothe CS’s objection is SUSTAINED, in part, and the court ORDERS the October
13, 2017 letter to be produced to Gazette with the following redaction: Paragraphs 1
and 2 of Page 1 shall be redacted.
Objection 2: The copy of the e-mail dated November 1, 2017 from Liberty
Mutual to former Superintendent Jon Saxton is not subject to disclosure.
{¶9} Chillicothe CS argues that this e-mail is not subject to disclosure because it
falls within the scope of attorney work product. It claims that the e-mail was “a
document produced by the Board’s insurer, made part of the insurer’s claim file, and
subsequently transmitted to Attorney McIntosh for preparing a defense against a
possible lawsuit.” (Objections, p. 5). The Gazette argues that the special master
properly found that “the record contained no evidence that Chillicothe ever claimed that
the e-mail was subject to any exception to disclosure.” (Reply p. 2).
{¶10} However, the court relies on alternative grounds for finding error in the
special master’s decision. The public records request that resulted in the production of
the November 1, 2017 e-mail sought “all correspondence with the insurance carrier
related to Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh being retained
and throughout the retainer.” (Report and Recommendation, p.18). In his decision, the
special master determined that this request “is improperly ambiguous, overly broad, and
does not reasonably identify the records sought.” Id. at 20. Then, the special master
went on to discuss documents identified as responsive to the request, stating that “[i]n
response to the order of September 24, 2018, Chillicothe CS identified and filed under
seal two records it deems responsive to Request No. 5.” Id. at 21. One of those records
was the November 1, 2017 e-mail. The special master also cited the follow proposition
of law: “[a] public office’s voluntary effort to provide some responsive records,
notwithstanding overbreadth of the request, is considered favorably in evaluating its
Case No. 2018-00950PQ -5- ENTRY
response. State el rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906
N.E.2d 1105, ¶ 6, 14.” Id. pp. 20-21.
{¶11} However, Chillicothe CS did not provide the November 1, 2017 e-mail
voluntarily. Rather, it provided the e-mail in response to a court order from the special
master directing “Chillicothe CS to file a complete and unredacted copy of the following
documents (“responsive documents”). 1. All responsive ‘correspondence with the
insurance carrier related to Freund, Freeze & Arnold and/or attorney Sandra R.
McIntosh being retained and throughout the retainer.’ (Am. Compl. Exh. A at 1.).”
(September 24, 2018 Order of the Special Master). Thus, but for this order, Chillicothe
CS would not have produced the November 1, 2017 e-mail.
{¶12} Further, and upon independent review, the court agrees with the special
master that Request No. 5 is improperly ambiguous, overly broad, and does not
reasonably identify the records sought. However, after the special master made this
determination, the analysis should have ended. Therefore, the special master erred
when he continued his analysis and ordered production of the November 1, 2017 e-
mail. See State ex rel. Davila v. City of E. Liverpool, 7th Dist. Columbiana No. 10 CO
16, 2011-Ohio-1347; State ex rel. Todd v. City of Canfield, 7th Dist. Mahoning No. 11
MA 209, 2014-Ohio-569. As such, Chillicothe CS’s objection is SUSTAINED. The
Gazette is not entitled to the November 1, 2017 email.
{¶13} Upon review of the record, the special master’s report and
recommendation, Chillicothe CS’s objections, and Gazette’s response, the court finds
that the special master erred in ordering production of the full October 13, 2017 letter
and the November 1, 2017 e-mail. Therefore, Chillicothe CS objections are
SUSTAINED and the court adopts the special master’s report and recommendation, in
part, rejects in part, and modifies in part. The Chillicothe CS shall produce a copy of the
October 13, 2017 letter with the redactions outlined above. Court costs shall be split
Case No. 2018-00950PQ -6- ENTRY
equally between the parties. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.
PATRICK M. MCGRATH
Judge
Filed February 5, 2019
Sent to S.C. Reporter 3/20/19