Foulk v. Upper Arlington , 2017 Ohio 4249 ( 2017 )

[Cite as Foulk v. Upper Arlington, 2017-Ohio-4249.]
ROBERT C. FOULK Case No. 2017-00132-PQ
Requester Special Master Jeffery W. Clark
v. REPORT AND RECOMMENDATION
CITY OF UPPER ARLINGTON, OHIO
Respondent
{¶1} On January 10, 2017, the Upper Arlington City Council held a special
meeting (the Council meeting) pursuant to public notice. (Requester’s Exhibit A.) The
City Attorney and several other City employees attended (Requester’s Exhibit B), as
well as one non-employee, Martin Jenkins, who was under an independent personal
services contract “to facilitate the 2017 City Council Retreat.” (Motion to dismiss;
Exhibits 2 and 2-A.) By email dated January 10, 2017, requester Robert Foulk made a
request to City Clerk Ashley Ellrod for “the complete audio recording of the 9:00 AM city
council meeting being held today, 1/10/2017, at Highbanks Metro Park.” (Requester’s
Exhibit C.) On January 13, 2017, Ellrod acknowledged receipt of the request, and
advised that “the audio is under City Attorney Review, as soon as it is available, I will let
you know.” (Requester’s Exhibit D.) On January 19, 2017, Ellrod sent Foulk an email
advising,
a. “The City is providing you a redacted copy of the audio recording from the
council retreat held on January 10, 2017. Portions of the recording
involving attorney-client privileged information, the release of which is
prohibited by state or federal law, have been redacted. R.C.
149.43(A)(1)(v); State ex rel. Nix v. Cleveland, 83 Ohio St. 3d 379
(1998). The redacted portions total less than fourteen minutes.”
(Requester’s Exhibit G.) Foulk responded that he intended to challenge the redactions,
and requested that the City maintain the original, unedited copy of the recording until
the matter was settled. (Requester’s Exhibit H.)
Case No. 2017-00132-PQ -2- REPORT AND RECOMMENDATION
{¶2} On February 6, 2017 Foulk filed a complaint under R.C. 2743.75 alleging
denial of access to public records in violation of R.C. 149.43(B). Foulk attached
copies of the original records request and related correspondence with the City.
On February 23, 2017, Foulk submitted a supplemental memorandum in support.
On March 21, 2017, mediation was conducted with Foulk and representatives of the
City. The court was notified that the case had not resolved, and mediation was
terminated. On April 4, 2017, the City filed a motion to dismiss pursuant to
R.C. 2743.75(E)(2). The City attached the affidavits of Clerk of Council Ashley Ellrod,
City Manager Theodore Staton, and City Attorney Jeanine Hummer. On April 6, 2017,
the court ordered the City to submit, under seal, the unredacted audio recording of the
Council meeting. On April 17, 2017, the City filed a purportedly unredacted audio
recording of the Council meeting, along with a Notice of Waiver of Privilege, Filing of
Record for In Camera Inspection and Request for Findings of Fact on Outstanding
Items (Notice of waiver). On April 26, 2017, the court ordered the parties to submit
additional information and arguments regarding the City’s suggestion of mootness, and
the timeliness of production of the requested records. Foulk and the City each filed an
additional pleading regarding these issues.
{¶3} R.C.149.43(C) provides that a person allegedly aggrieved by a violation of
division (B) of that section may either commence a mandamus action, or file a complaint
under R.C. 2743.75. In mandamus actions alleging violations of R.C. 149.43(B),
a relator must establish by "clear and convincing evidence" that they are entitled to
relief. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St. 3d 350, 2013-Ohio-
3720, ¶ 14. As for actions under R.C. 2743.75 alleging violations of R.C. 149.43(B),
neither party has suggested that another standard should apply, nor is another standard
prescribed by statute. R.C. 2743.75(F)(1) states that such claims are to be determined
through "the ordinary application of statutory law and case law * * *." Accordingly, the
Case No. 2017-00132-PQ -3- REPORT AND RECOMMENDATION
merits of this claim shall be determined under a standard of clear and convincing
evidence.
{¶4} R.C. 149.43(B)(1) provides that “upon request, a public office or person
responsible for public records shall make copies of the requested public record
available at cost and within a reasonable period of time.” The complaint alleges that the
City violated this provision in two ways: first, the city improperly withheld a portion of
the requested record, and second, the production of the record “was neither timely nor
reasonable.” The City contends that it properly withheld (redacted) portions of the
recording that constituted attorney-client privileged information. For the reasons below,
I conclude that after the complaint was filed but before decision was rendered the City
rendered Foulk’s claim for production of records moot by providing all existing audio
recording of the Council meeting. However, because the attorney-client privilege never
applied to the withheld portions, the City violated the requirement of timely production
by failing to produce the withheld portions within a reasonable period of time.
Suggestion of Mootness
{¶5} In an action to enforce R.C. 149.43(B), a public office may produce the
requested records prior to the court’s decision, and thereby render the claim for
production of records moot. State ex rel. Striker v. Smith, 129 Ohio St. 3d 168, 2011-
Ohio-2878, ¶ 18-22. Foulk requested “the complete audio recording” of the January 10,
2017 Council meeting, and the City initially provided access to an audio recording from
which fourteen minutes had been redacted. Before the court could render a decision,
the City declared that it waived its asserted attorney-client privilege, and directed Ellrod
to disclose the full Council meeting recording (Notice of waiver, Exhibit A.) Ellrod
attests that on April 11, 2017, “I emailed Robert Foulk the complete and un-redacted
audio file from the Council retreat.” (Respondent’s additional evidence, Exhibit A, ¶ 2.)
The City thus presents credible evidence that all records responsive to the request for
Case No. 2017-00132-PQ -4- REPORT AND RECOMMENDATION
“the complete audio recording” of the January 10, 2017 Council meeting have been
provided.
{¶6} In his May 8, 2017 Memorandum of Requester, Foulk questions whether the
newly proffered audio recording was “complete,” noting a forty-nine minute disparity
between the meeting duration stated in the minutes, and the length of the “complete and
unredacted audio file” provided by Ellrod. (Id. at 11-12.) In an affidavit submitted with
the City’s May 10, 2017 Submittal of Additional Evidence, Ellrod explained that the
recording had not captured a portion of the Council meeting:
b. “The recording previously produced contains the complete and total audio
recording of the January 10, 2017 Council Retreat meeting. The tape was
not started at the call to order because I was distracted by setting up for
the meeting and forgot to turn on the recording device at the start of the
meeting.”
(Id. at ¶ 6.) “Respondents have no duty to create or provide access to nonexistent
records.” State ex rel. Lanham v. Smith, 112 Ohio St. 3d 527, 2007-Ohio-609, ¶ 15;
State ex rel. Cioffi v. Stuard, 11th Dist Trumbull No. 2009-T-0057, 2011-Ohio-829,
¶ 21-23 (no obligation to provide copy of transcript that was never taken). Considering
Ellrod’s sworn statement that she inadvertently commenced recording after the Council
meeting was in progress, Foulk has not shown by clear and convincing evidence that
the City has withheld any additional existing audio recording responsive to the
request. A reasonable and good faith belief by a requester, without supporting
evidence, does not constitute sufficient evidence to establish that a responsive
document exists. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office,
133 Ohio St. 3d 139, 2012-Ohio-4246, ¶ 24-26; State ex rel. Gooden v. Kagel, 138 Ohio
St.3d 343, 2014-Ohio-869, ¶ 8.
{¶7} However, provision of all requested records does not render a claim for
production moot if the issues raised are capable of repetition, yet evading review. State
ex rel. Calvary v. Upper Arlington, 89 Ohio St. 3d 229, 231, 729 N.E.2d 1182 (2000).
Case No. 2017-00132-PQ -5- REPORT AND RECOMMENDATION
c. “This exception [to mootness] applies only in exceptional circumstances in
which the following two factors are both present: (1) the challenged action
is too short in its duration to be fully litigated before its cessation or
expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.”
Id. Foulk contends that the issues he raises are capable of repetition yet evading
review, and points to Resolution No. 2-2017 (Motion to Dismiss, Exhibit A) in which the
City asserts that it may apply the attorney-client privilege under the same circumstances
at future City Council meetings. This evidence of likely repetition is unrebutted, but it is
only one factor to be considered. Foulk does not establish that the threatened redaction
of alleged attorney-client communications from recordings of future City Council
meetings is an action “too short” to be fully litigated before its cessation or expiration. If
the City continues to maintain audiotapes of City Council meetings, future instances of
redaction of allegedly privileged communication would be subject to review in this court,
or through mandamus, during the period that they are retained. Even if the City makes
no audio recording of all or part of an open session of a public meeting, a remedy exists
under R.C. 121.22 to compel the creation of adequate minutes and otherwise enforce
the openness of the meeting. R.C. 121.22(C); Mahajan v. State Med. Bd. of Ohio,
10th Dist. Franklin Nos. 11AP-421, 11AP-422, 2011-Ohio-6728, ¶ 26-27; White v.
Clinton Cty. Bd. of Comm’rs, 76 Ohio St. 3d 416, 420, 667 N.E.2d 1223 (1996); State
ex rel. Patrick Bros. v. Bd. of Putnam Cty. Commr’s, 3rd Dist. Putnam No. 12-13-05,
2014-Ohio-2717, ¶ 33-37.
{¶8} I conclude that Foulk has not established that the “capable of repetition yet
evading review” exception applies to this claim. I recommend that the court DISMISS
AS MOOT Foulk’s claim for production of the complete Council meeting recording.
Production of Required Records Within a Reasonable Period of Time
{¶9} Even where a claim for production of records has been satisfied, a separate
claim based on the untimeliness of the response persists unless copies of all required
Case No. 2017-00132-PQ -6- REPORT AND RECOMMENDATION
records were made available “within a reasonable period of time.” By analogy to
mandamus actions under R.C. 149.43(C), even when post-complaint production has
rendered the claim moot, “[s]tatutory damages may be awarded if the public record has
not been provided promptly. R.C. 149.43(C)(1).” State ex rel. Cincinnati Enquirer v.
Deters, Slip Opinion No. 2016-Ohio-8195, ¶ 22; State ex rel. DiFranco v. City of
S. Euclid, 138 Ohio St. 3d 367, 2014-Ohio-538, ¶ 24. Likewise, if attorney fees are
available for a violation based on timeliness the Ohio Supreme Court has held:
d. “In view of the absence of an express statutory prohibition and the
proclivity of some custodians of public records to force the filing of a
mandamus action by a citizen to gain access to records that are obviously
public, we hold that a court may award attorney fees pursuant to R.C.
149.43 where (1) a person makes a proper request for public records
pursuant to R.C. 149.43, (2) the custodian of the public records fails to
comply with the person's request, (3) the requesting person files a
mandamus action pursuant to R.C. 149.43 to obtain copies of the records,
and (4) the person receives the requested public records only after the
mandamus action is filed, thereby rendering the claim for a writ of
mandamus moot.”
State ex rel. Pennington v. Gundler, 75 Ohio St. 3d 171, 174, 661 N.E.2d 1049 (1996);
see also State ex rel. Calvary v. City of Upper Arlington, 89 Ohio St. 3d 229, 232,
729 N.E.2d 1182 (2000).
{¶10} As with mandamus actions, relief is available under R.C. 2743.75 to a
person aggrieved by the failure of a public office to timely provide public records as
required by R.C. 149.43(B)(1). R.C. 2743.75(F)(3) provides:
e. (3) If the court of claims determines that the public office or person
responsible for the public records denied the aggrieved person access to
the public records in violation of division (B) of section 149.43 of the
Revised Code and if no appeal from the court's final order is taken under
division (G) of this section, both of the following apply:
***
f. (b) The aggrieved person shall be entitled to recover from the public office
or person responsible for the public records the amount of the filing fee of
Case No. 2017-00132-PQ -7- REPORT AND RECOMMENDATION
twenty-five dollars and any other costs associated with the action that are
incurred by the aggrieved person, * * *.
Failure to provide copies within a reasonable period of time denies the aggrieved
person access to the public records from the time the reasonable period expires, until
the records are provided, in violation of R.C. 149.43(B)(1). See State ex rel. DiFranco,
supra at ¶ 19-21. The court must therefore determine whether the City denied timely
access to the withheld portions of the Council meeting recording, and whether Foulk is
therefore entitled to recovery of the filing fee and other costs incurred.
{¶11} Timeliness of production of records is analyzed under the facts and
circumstances of each case. State ex rel. Shaughnessy v. City of Cleveland,
Slip Opinion at 2016-Ohio-8447, ¶ 8. The requested record in this case was a single
audio file. In addition to the time required to create a copy, the City was entitled to
the time required to perform any necessary legal review of the request. State ex rel.
Morgan v. Strickland, 121 Ohio St. 3d 600, 2009-Ohio-1901, ¶ 17. Shortly after the
January 10, 2017 request, the City notified Foulk that it was conducting a legal review.
The City concluded the review, performed audio editing, and made the resulting
redacted audio file available to Foulk on January 19, 2017.1 While this initial review and
response was timely, I find that the additional 88-day delay between the initial
production, and the final production to Foulk of the withheld portions of the recording on
April 17, 2017, violated the “reasonable period of time” for production of the withheld
fourteen minutes. See State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St. 3d
619, 623, 640 N.E.2d 174 (1994).
Claimed Exception: Attorney-Client Privilege
{¶12} “Any exception to disclosure under the Public Records Act is strictly
construed against the public-records custodian, and the custodian has the burden to
establish the applicability of an exception.” State ex rel. Pietrangelo v. Avon Lake, 146
Ohio St. 3d 292, 2016-Ohio-2974, ¶ 9 (attorney-client privilege). The policy underlying
1 http://www.uaoh.net/egov/documents/1491930417_88678.MP3 - accessed May 19, 2017.
Case No. 2017-00132-PQ -8- REPORT AND RECOMMENDATION
the Public Records Act is that “open government serves the public interest and our
democratic system.” State ex rel. Dann v. Taft, 109 Ohio St. 3d 364, 2006-Ohio-1825,
848 N.E.2d 472, ¶ 20. “We construe the Public Records Act liberally in favor of broad
access and resolve any doubt in favor of disclosure of public records.” State ex rel.
Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St. 3d 224, 2010-Ohio-3288, ¶ 6.
{¶13} The City argues that the withheld communications were protected from
disclosure by the common-law attorney-client privilege, which is defined in Ohio as
follows:
g. “Under 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.’”
(Citations omitted.)
State ex rel. Leslie v. Ohio Housing Fin. Agency, 105 Ohio St. 3d 261, 2005-Ohio-1508,
¶ 21. The party asserting the attorney-client privilege bears the burden of showing the
applicability of the privilege. MA Equip. Leasing I, LLC v. Tilton, 10th Dist. Franklin Nos.
12AP-564 and 12AP-586, 2012-Ohio-4668, ¶ 20-22; Pietrangelo, supra. The parties
do not dispute that the withheld communications met criteria (1)-(3) and (5)-(7) of
the definition. However, conducting a discussion during an open session of a public
meeting under R.C. 121.22 precludes the communication having been made “in
confidence.” Foulk separately argues that the attorney-client privilege was waived by
the presence of a non-essential third party during the communication.
Communications During an Open Meeting are not Made “In Confidence”
{¶14} Meetings of Ohio’s public bodies are profoundly open to public observation.
“All meetings of any public body are declared to be public meetings open to the public at
Case No. 2017-00132-PQ -9- REPORT AND RECOMMENDATION
all times.”2 R.C. 121.22(C); see Bd. of Trs. of the Tobacco Use Prevention & Control
Found. V. Boyce, 185 Ohio App. 3d 707, 2009-Ohio-6993, ¶ 64 (10th Dist.). During a
meeting, members of the public body may not communicate in confidence by
whispering, or by passing notes. Manogg v. Stickle, 5th Dist. Licking No. 97CA104,
1998 Ohio App. LEXIS 1961, *4-7. A public body may not shut out latecomers
by locking its doors. State ex rel. Randles v. Hill, 66 Ohio St. 3d 32, 35, 607 N.E.2d 458
(1993). A public body may not vote confidentially by using a secret ballot.
2011 Ohio Op. Att’y Gen. No. 038. Meetings must be held in a public meeting place,
Paridon v. Trumbull Cty. Children Servs. Bd., 11th Dist. Trumbull No. 2012-T-0035,
2013-Ohio-881, ¶ 24; Manogg, supra., and preferably located within the geographical
jurisdiction of the public body in order to comply with the spirit of the statutory scheme.
1992 Ohio Op. Att’y Gen. No. 032. In case of ambiguity, the Open Meetings Act “shall
be liberally construed to require public officials to take official action and to conduct all
deliberations upon official business only in open meetings unless the subject matter is
specifically excepted by law.”3 R.C. 121.22(A). Public body members thus have no
expectation to engage in confidential communication during a public meeting conducted
under the Open Meetings Act.
{¶15} A public body may not prohibit the public from recording a public meeting.
McVey v. Carthage Twp. Trustees, 4th Dist. Athens No. 04CA44, 2005-Ohio-2869,
¶ 14-15; Kline v. Davis, 4th Dist. Lawrence Nos. 00CA32, 01CA13, 2001 Ohio App.
LEXIS 5598; 1988 Ohio Att’y Gen No. 087. The right to record any public meeting
stands in contrast to the criminal offense of interception of oral communications.
R.C. 2933.51(B) and 2933.52(A) (third party interception of oral communication is illicit if
2 The Upper Arlington City Charter, Section XI – Council Meetings echoes this requirement: “All
meetings of Council or its committees shall be open to the public, * * * Any citizen shall have access to
public records during usual business hours pursuant to State law.”
3 I.e., specific subject matter discussed in a properly convened executive session,
R.C. 121.22(G). The City does not claim that the withheld communications took place in executive
session.
Case No. 2017-00132-PQ -10- REPORT AND RECOMMENDATION
the speaker is justified in expectation that the oral communication is not subject to
interception.) There is no requirement that a person be present while recording a
meeting, and no reasonable expectation of privacy for communications recorded in
open session during a public meeting.
{¶16} To its credit, the City routinely publishes its meeting recordings on its
website.4 “[T]ape recordings are audio transcripts of the proceedings,” Id. at 6, and
audio recordings can constitute all or part of a public body’s means of satisfying the
requirements of R.C. 121.22(C) to prepare, file, and maintain minutes. White v. Clinton
County Bd. of Comm'rs, 76 Ohio St. 3d 416, 423-424, 667 N.E.2d 1223 (1996). The
Upper Arlington City Council has adopted rules anticipating that its meeting recordings
may be so used:
h. “Audio recordings may be substituted for written minutes provided they are
a complete and accurate record of the meeting, the rationale for any
decisions, and are in compliance with applicable state law.”
Rules of Council, City of Upper Arlington, Ohio, Article II, 6(C).5 Once created by a
public office, an audio recording of a meeting must be made available for public
inspection and copying, and retained in accordance with the terms of the public office’s
records retention schedule. 2008 Ohio Op. Att’y Gen. No. 019 at 6. When a public
body creates recordings of its public meetings, the recording is a “record” of the public
office that “does not fall within any of the public records exceptions listed in
R.C. 149.43(A)(1).” Id. at 4.
{¶17} Although no executive session was sought for the communications in this
case, the parties agree that the attorney-client privilege alone cannot authorize a
confidential executive session. See State ex rel. Hardin v. Clermont Cty. Bd. of
Elections, 12th Dist. Clermont Nos. CA2011-05-045, CA2011-06-047, 2012-Ohio-2569,
¶ 77-78; Dispatch Printing Co. v. Columbus City Sch. Dist. Bd. of Educ., Franklin C.P.
4
http://www.uaoh.net/egov/apps/document/center.egov?view=item;id=4372 – accessed May 17, 2017.
5 http://www.uaoh.net/egov/documents/1463151086_91858.pdf – accessed May 17, 2017.
Case No. 2017-00132-PQ -11- REPORT AND RECOMMENDATION
No. 12-CV-012707, 2014 Ohio Misc. LEXIS 9085 (Feb. 20, 2014). Even less, then, is
the privilege available during open session. The General Assembly has limited the
circumstance in which a public body can engage in attorney-client communication within
executive session to discussion “of pending or imminent court action,” R.C.
121.22(G)(3), and in effect required a partial waiver of the attorney-client privilege by
the client-public body for any other attorney communication during a meeting. State ex
rel. Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., 1st Dist. Hamilton No. C-
010605, 2002 WL 727023, *5; see also State ex rel. Hardin, supra. Thus, where a
privileged letter had been referred to during a public meeting, the Ohio Supreme Court
upheld the privilege against a public records request only by noting that “although the
board of education referred to the insurance letter at a meeting, it never disclosed the
contents of the letter at a public meeting.” (Emphasis added) State ex rel. Dawson v.
Bloom-Carroll Local Sch. Dist., 131 Ohio St. 3d 10, 2011-Ohio-6009, ¶ 31-32. A public
body is not prohibited from soliciting legal advice from its counsel in open session, but
doing so implicitly accepts disclosure of the communication.
{¶18} An open meeting is not just conditionally public for those in attendance, but
“open to the public at all times.” R.C. 121.22(C). For persons who don’t have time to
attend, the public body’s full and accurate minutes, and utilizing tape recording, enable
citizens to stay informed about the actions and thoughts of their elected officials. White
v. Clinton Cty. Bd. of Comm’rs. at 420. The City in effect argues that a public body can
create ad hoc “privilege gaps” during any open meeting when no members of the public
are in physical attendance. This practice is contrary to the primary Open Meeting Act
objective of openness. R.C. 121.22(A), (C); R.C. 1.49(E). The City’s proposed privilege
gaps would not require a formal motion or any other indication that they took place, and
indeed the City did not reflect its legal discussions with the City Attorney in the minutes
of the January 10, 2017 meeting. Pausing or editing audio recordings would deny the
absent public any opportunity to be aware of, let alone challenge, an allegedly privileged
Case No. 2017-00132-PQ -12- REPORT AND RECOMMENDATION
communication.6 R.C. 121.22(H) imposes substantial penalties for improper meeting
practices, but sanctions could not be enforced against violations committed in a
privilege gap if the public body withheld the very existence of those deliberations.
However, these consequences are obviated because public meetings are held to be
open to the public at all times, and not conditioned on who is in attendance.
{¶19} I conclude that the City has failed to meet its burden of showing that
communication with its counsel during a public meeting was made “in confidence.”
Therefore, the attorney-client privilege was either waived or never attached to the
fourteen minutes of communication withheld in this case, and could not be asserted as
an exception to release of those portions of the recording.
Presence of Unnecessary Third Party Negates Confidentiality
{¶20} Separately, “the attorney-client privilege is destroyed by voluntary
disclosure to others of the content of the statement.” State v. Post, 32 Ohio St. 3d 380,
385, 513 N.E.2d 754 (1987); Weissenberger, Ohio Evidence, § 501.5. “If the
communication between attorney and client takes place in the presence of a
third party, and that third party hears the communication contemporaneously
with its being made, then the attorney-client privilege for that information
never existed . . .” (quoting Fed. Elec. Comm'n v. Christian Coalition, 178 F.R.D.
61, 71 (E.D.Va.1998)) Flo Pac, LLC v. NuTech, LLC, 2010 U.S. Dist. LEXIS
131120, *20, (D. Md. Dec. 9, 2010). An unnecessary third-party’s presence “negates
the confidentiality element and prevents the communication from ever being deemed
confidential, * * *.” Id. at *21. The fact that the third party was an “agent” of the client
does not preserve the privilege unless the third party’s presence is “nearly
indispensable or serve[s] some specialized purpose in facilitating the attorney-client
6 At minutes 194:15 through 195:50 (2:47:15 through 2:48:50 online) of the Council meeting
recording, a voice reflects on forty-five minutes of seeking legal advice, and “the issue now where some
of it is on audio tape.” A voice responds, “We probably should stop the tape for … for practice stop the
tape.”
Case No. 2017-00132-PQ -13- REPORT AND RECOMMENDATION
communications. Mere convenience is not sufficient.” (quoting Edna Selan Epstein, The
Attorney-Client Privilege and the Work-Product Doctrine at 264 (5th ed. 2007)) Id. at
*23-24. Examples of third parties who have been considered “necessary” for effective
attorney-client communications include: interpreters, menial or ministerial employees,
and subject matter experts acting as professional agents, United States v. Kovel, 296
F.2d 918, 921-923 (2d Cir.1961); stenographers, In re Dismissal of Osborn, 5th Dist.
Ashland No. CA-1009, 1992 Ohio App. LEXIS 4364, *6; polygrapher acting as agent of
criminal defense counsel, State v. Post, supra at 385; and city council members-elect,
Humphries v. Chicarelli, S.D. Ohio No. 1:10-cv-749, 2012 U.S. Dist. LEXIS 168038, *12-
13 (Nov. 27, 2012).
{¶21} Council meeting attendees were categorized in the minutes roll as either
“Members,” “Staff,” or “Others.” Facilitator Martin Jenkins7 was listed under “Others.”
(Requester’s Exhibit B at 1.) City Manager Theodore Staton attested that, “Mr. Jenkins,
like other City employees present, was an agent of the city for purposes of facilitating
and participating in all aspects of the Retreat.” Staton Aff. ¶ 3. However, the City
presents no evidence that Jenkins acted as the agent of the Council for the purpose of
obtaining legal advice. Jenkins contracted with the City to provide “professional design
and facilitation of the 2017 City Council Retreat.” (Motion to dismiss, Staton Aff.,
Exhibit 2-A, ¶ 1-3.) The contract was “for short term independent personal services and
not a contract for employment.” (Id. at ¶ 4.) The contract contained no provision
regarding confidentiality. Jenkins was contracted and identified only as a “facilitator,”
and not as an agent for the purposes of attorney-client communication. There is no
evidence that Jenkins’ presence was necessary during the communication of legal
advice, as opposed to merely convenient. Westinghouse Elec. Corp. v. Republic of
Phil., 951 F.2d 1414, 1424 (3d Cir.1991); Flo Pac, LLC, supra, *24. The bare assertion
7
The City does not dispute that Jenkins was present during the purported attorney-client
communications, and Foulk does not dispute that no other members of the public were present.
Case No. 2017-00132-PQ -14- REPORT AND RECOMMENDATION
by Hummer that “I noted the presence of no non-essential parties” while giving legal
advice is insufficient proof that Jenkins was essential. (Hummer Aff. ¶ 2.)
{¶22} I conclude that the City has not met its burden to show that the claimed
common-law attorney-client privilege was not waived (or never attached) by the
voluntary disclosure of the communication to an unnecessary third party. This
conclusion is in addition to the preceding conclusion that the communication was not
made “in confidence” when spoken during the open session of a public meeting. Each
of these conclusions is independently sufficient to defeat the assertion of attorney-client
privilege.
Complaint of “Incomplete Minutes”
{¶23} Foulk separately claims “incomplete minutes” as a public records access
violation in this case. (Compl., Other.) The Ohio Open Meetings Act requires that “[t]he
minutes of a regular or special meeting of any public body shall be promptly prepared,
filed, and maintained and shall be open to public inspection.” R.C. 121.22(C). Minutes
of public meetings must provide a full and accurate record. Mahajan, supra. “[K]eeping
full minutes allows members of the public who are unable to attend the meetings in
person to obtain complete and accurate information about the decision-making process
of their government.” White v. Clinton Cty. Bd. of Comm’rs, supra. Incomplete minutes
do not comply with the statutory requirements of R.C. 121.22(C). State ex rel. Patrick
Bros., supra.
{¶24} Once minutes are prepared, Ohio's Public Records Act requires a public
body to permit public access upon request. State ex rel. Citizens for Open, Responsive
& Accountable Govt. v. Register, 116 Ohio St. 3d 88, 2007-Ohio-5542, ¶ 27. A request
for any existing minutes is subject to enforcement under R.C. 2743.75, which grants the
Court of Claims special statutory jurisdiction to “resolve disputes alleging a denial of
access to public records in violation of division (B) of section 149.43 of the Revised
Code.” R.C. 2743(A). However, a public body’s failure to create adequate minutes is
Case No. 2017-00132-PQ -15- REPORT AND RECOMMENDATION
not a violation of R.C. 149.43(B). State ex rel. Lanham, supra; State ex rel. Cioffi,
supra. Although overlapping provisions of the statutes are read in pari materia to
enforce the duty of public bodies to maintain a full and accurate record of proceedings,
State ex rel. Long v. Cardington, 92 Ohio St. 3d 54, 56, 748 N.E.2d 58 (2001), the duty
to prepare minutes is found only in R.C. 121.22(C). Any person may bring an action for
injunctive relief from an alleged violation of R.C. 121.22(C) in the court of common
pleas. R.C. 121.22(I). R.C. 2743.75 does not confer jurisdiction on the Court of Claims
to hear claims arising out of R.C. 121.22.
{¶25} This court thus lacks jurisdiction over, and must dismiss, Foulk’s claim for
relief regarding “incomplete minutes.” Civ.R. 12(B)(1).
Conclusion
{¶26} Upon consideration of the pleadings and attachments, I find that Foulk has
established by clear and convincing evidence that the redacted portions of the audio
recording of the January 10, 2017 meeting of the Upper Arlington City Council were
public records to which no exception applied. Prior to the decision of the special
master, the City disclosed the redacted portions of the requested record, which
rendered Foulk’s claim for production MOOT. Accordingly, I recommend that the court
issue an order DISMISSING the claim for production of records, but GRANTING Foulk’s
claim that he was denied access to all requested public records within a reasonable
period of time, and which provides that Foulk is entitled to recover from the City the
costs associated with this action, including the twenty-five dollar filing fee.
R.C. 2743.75(F)(3)(b).
{¶27} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state
with particularity all grounds for the objection. A party shall not assign as error on
Case No. 2017-00132-PQ -16- REPORT AND RECOMMENDATION
appeal the court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
JEFFERY W. CLARK
Special Master
cc:
James C. Becker Mark R. Weaver
4380 Braunton Road Molly R. Gwin
Columbus, Ohio 43220-4304 Two Miranova Place, Suite 700
Columbus, Ohio 43215-5098
Filed May 25, 2017
Sent to S.C. Reporter 6/13/17