State Ex Rel. McCaffrey v. Mahoning County Prosecutor's Office

[Cite as State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St. 3d 139,
2012-Ohio-4246.]
THE STATE EX REL. MCCAFFREY v. MAHONING COUNTY
PROSECUTOR’S OFFICE ET AL.
[Cite as State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office,
133 Ohio St. 3d 139, 2012-Ohio-4246.]
Public records—Requirement of prior request—Specificity required in request for
metadata associated with electronic records—Calendars of public
employees—Records of hours worked and duties performed—Attorney-
client privilege—Trial-preparation records.
(No. 2010-1642—Submitted July 10, 2012—Decided September 20, 2012.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} This is a public-records mandamus action in which relator, John
McCaffrey, an attorney representing defendants in criminal cases, seeks certain
records from respondents, the Mahoning County Prosecutor’s Office and
Mahoning County Prosecuting Attorney Paul Gains. Because relator has
established his entitlement to a few of the requested records, we grant the writ for
those few records. For the remaining requested records, however, we deny the
writ.
Facts
{¶ 2} In 2006, Mahoning County purchased real property located at 345
Oakhill Avenue in Youngstown. The county decided to purchase this Oakhill
Renaissance Place property to relocate the county’s Department of Job and
Family Services from property owned by Ohio Valley Mall Company and built by
the family of Anthony Cafaro Sr. Ohio Valley Mall Company filed a taxpayer
lawsuit in the Mahoning County Court of Common Pleas challenging the county’s
SUPREME COURT OF OHIO
decision to purchase the Oakhill property, naming Gains and certain elected
officials represented by Gains as defendants. The case was settled in 2007, but
the Ohio Ethics Commission and the Mahoning County Grand Jury investigated
the company and certain officials concerning the litigation.
{¶ 3} In October 2008, Gains applied to the common pleas court to
appoint Lorain County Prosecuting Attorney Dennis P. Will, Lorain County
Assistant Prosecuting Attorneys Anthony D. Cillo and Billie Jo Belcher, and Ohio
Ethics Commission Chief Investigative Counsel Paul M. Nick as special
prosecutors to handle the ongoing investigation resulting from Mahoning
County’s acquisition of Oakhill Renaissance Place, for which the prosecutor’s
office had previously issued grand jury subpoenas to various public officials and
others at the request of the Ohio Ethics Commission and the Mahoning County
sheriff. Gains specified the importance of the appointment of a special prosecutor
who could act independently of him to avoid the appearance of impropriety and
accusations of a vengeful prosecution or of favorable treatment because the
investigation involved numerous public officials, including two current judges
and one retired judge, who might be witnesses or potential targets. On November
17, 2008, the common pleas court granted the application and appointed Lorain
County Prosecuting Attorney Will, Assistant Prosecutors Cillo and Belcher, and
Ohio Ethics Commission Chief Investigative Counsel Nick “to serve jointly as
special prosecutors to assist the investigators and the grand jury and to perform all
other prosecutorial functions deemed warranted in their independent professional
judgment as it relates to the investigation of Mahoning County’s acquisition of the
Oak Hill Renaissance Place.”
{¶ 4} In July 2010, the Mahoning County Grand Jury returned a 73-
count indictment charging Anthony M. Cafaro Sr., the Cafaro Company, Ohio
Valley Mall Company, the Marion Plaza, Inc., John McNally IV, John Reardon,
Michael V. Sciortino, John Zachariah, Martin Yavorcik, and Flora Cafaro with
2
January Term, 2012
engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money
laundering, conflict of interest, filing false financial-disclosure statements, and
soliciting or accepting improper communications. The defendants, including
several current and former county officials and companies and persons who had
an interest in having the county Department of Job and Family Services remain
where it was, had opposed the relocation. Relator, John McCaffrey, is an attorney
who represented defendants Ohio Valley Mall Company and Marion Plaza, Inc.,
in the criminal cases.
{¶ 5} Before the indictment was returned, a newspaper article reported
that Mahoning County Assistant Prosecuting Attorney Linette Stratford had been
seen outside the grand jury room with the special prosecutors. On May 21, 2010,
McCaffrey requested that respondent Mahoning County Prosecutor’s Office
“make available at cost copies of the following categories of documents”:
1. All records referring or relating to any support or assistance
that has been provided by any employee or representative of the
Prosecutor to Special Prosecutors Dennis Will and/or Paul Nick, or
anyone acting in concert with either or both of them, including
b[ut] not limited to any support or assistance provided by Linette
Stratford.
{¶ 6} In June 2010, Gains responded to McCaffrey’s request by
providing 16 pages of documents, including his application for the appointment of
special prosecutors, the common pleas court order appointing special prosecutors,
an e-mail in which he forwarded a copy of the newspaper article to Special
Prosecutor Will, and an e-mail indicating that there were no records, receipts, or
requests for reimbursement or any other type of record associated with travel to
3
SUPREME COURT OF OHIO
Lorain County for any prosecutor’s office employee for the period from
December 2009 through May 2010.
{¶ 7} On July 28, 2010, McCaffrey requested that the prosecutor’s office
“make available at cost copies of the following categories of documents”:
1. All calendars of Mahoning County Prosecutor Paul
Gains (“Gains”), Assistant Mahoning County Prosecuting Attorney
Linette Stratford (“Stratford”), and Assistant Mahoning County
Prosecuting Attorney Gina Bricker (“Bricker”) for the period of
November 1, 2008 to the present.
2. All records of hours worked and duties performed by
Gains, Stratford, and Bricker for the period of November 1, 2008
to the present.
3. All e-mail messages sent or received by Gains,
Stratford, and Bricker for the period of 2008 to the present
referring or relating to Oakhill Renaissance Place (“Oakhill”),
referring or relating to Special Prosecutors of the Mahoning
County Prosecutors Office, representatives of the Ohio Ethics
Commission, and/or the Mahoning County Grand Jury (term
beginning on or about January 2010 and expiring on July 30,
2010).
4. All expense reports submitted by or on behalf of Gains,
Stratford, and Bricker for the period of November 1, 2008 to the
present.
5. Records of any complaint, claim, or grievance generated
by or against the Mahoning County Prosecutor[’]s Office (or any
of its employees) concerning matters involving the Mahoning
4
January Term, 2012
County Grand Jury (term beginning on or about January 2010 and
expiring on July 30, 2010).
6. Records of communications between the Mahoning
County Prosecutor[’]s Office (including any one of its employees)
and Mahoning County Common Pleas Judge [James C.] Evans
concerning matters involving the Mahoning County Grand Jury
(term beginning on or about January 2010 and expiring on July 30,
2010).
7. Records of communications between the Mahoning
County Prosecutor[’]s Office (including any one of its employees)
and persons comprising the Mahoning County Grand Jury (term
beginning on or about January 2010 and expiring on July 30,
2010).
{¶ 8} By letter dated August 19, 2010, Gains responded to the second
request by (1) denying the request for calendars, (2) providing copies of the civil-
division case logs for Prosecutor Gains and Assistant Prosecutors Stratford and
Bricker from 2008 to that time, with portions of the records redacted based on
attorney-client privilege, (3) stating that records relating to the third category of
records requested had been provided in the response to McCaffrey’s previous
records request, (4) providing expense reports for Gains and Bricker and stating
that no expense reports existed for Stratford, (5) stating, without confirming or
denying the existence of records in the fifth category of requested records, that the
requested records were exempt from disclosure under Gov.Bar R. V(11)(E), and
(6) stating that the records requested in the sixth and seventh categories of
McCaffrey’s records request did not exist. Gains’s response did not contain
metadata concerning the requested documents.
5
SUPREME COURT OF OHIO
{¶ 9} A month later, on September 20, 2010, McCaffrey filed this action
for a writ of mandamus to compel Gains and the Mahoning County Prosecutor’s
Office to provide access to all of the requested records in the first, fifth, sixth, and
seventh categories of his July 28, 2010 records request in their possession,
including metadata, that had not been produced, and to submit for in camera
inspection unredacted records in the second category. Respondents filed an
answer and a motion for judgment on the pleadings. In December 2010,
respondents submitted additional records responsive to McCaffrey’s May 21,
2010 request, and in March 2011, respondents submitted additional records
responsive to the third category of McCaffrey’s July 28, 2010 request.
{¶ 10} We denied respondents’ motion for judgment on the pleadings,
granted an alternative writ, and issued a schedule for the presentation of evidence
and briefs. 128 Ohio St. 3d 1442, 2011-Ohio-1618, 944 N.E.2d 692. During
discovery in this case, we granted respondents’ motion to quash McCaffrey’s
deposition of Diane Stokes, a clerical assistant in the Mahoning County
Prosecutor’s Office. 128 Ohio St. 3d 1451, 2011-Ohio-1702, 944 N.E.2d 1176.
We later suppressed the Stokes deposition and denied McCaffrey’s motion to
compel the court reporter and videographer to produce to him the transcript and
DVD of the Stokes deposition. 128 Ohio St. 3d 1491, 2011-Ohio-2229, 946
N.E.2d 761. Further, we denied McCaffrey’s motion for leave to file and serve an
amended complaint, which would have added claims concerning all of the
categories specified in his May 21, 2010 and July 28, 2010 records requests
based, in part, on allegations concerning Stokes’s testimony at the ultimately
suppressed deposition. 129 Ohio St. 3d 1407, 2011-Ohio-3244, 949 N.E.2d 1003.
The parties submitted evidence and briefs in accordance with the alternative writ.
{¶ 11} On July 11, 2011, the judge presiding over the underlying criminal
cases dismissed the indictment without prejudice pursuant to Crim.R. 48(A). We
ordered the parties to file supplemental briefs on the issue of the effect of the
6
January Term, 2012
dismissal of the underlying criminal cases on McCaffrey’s mandamus claim. 129
Ohio St. 3d 1445, 2011-Ohio-4217, 951 N.E.2d 1043. The parties submitted
supplemental briefs.
{¶ 12} This cause is now before this court for resolution of respondents’
motions to strike McCaffrey’s evidence and for leave to supplement its
presentation of evidence and on the merits of McCaffrey’s public-records
mandamus claim.
Analysis
Respondents’ Motions
{¶ 13} Respondents filed motions to strike relator’s evidence and to
supplement their own evidence, and McCaffrey filed memoranda in opposition.
{¶ 14} For the motion to strike, we exercise our broad discretion and grant
the motion. See State ex rel. Mun. Constr. Equip. Operators’ Labor Council v.
Cleveland, 114 Ohio St. 3d 183, 2007-Ohio-3831, 870 N.E.2d 1174, ¶ 37, quoting
State ex rel. Morgan v. New Lexington, 112 Ohio St. 3d 33, 2006-Ohio-6365, 857
N.E.2d 1208, ¶ 26 (“ ‘The determination of a motion to strike is vested within the
broad discretion of the court’ ”). McCaffrey’s evidence comprises affidavits of
two of his attorneys in which they both allege what Stokes testified to at her
deposition. But that evidence is inadmissible because we quashed McCaffrey’s
subpoena of Stokes and suppressed her deposition. We also denied his motion to
compel discovery of answers to interrogatories and deposition questions
concerning the underlying criminal investigation and prosecution.
{¶ 15} Respondents’ motion to supplement the evidence with the state’s
memorandum in opposition to the defendants’ joint motion to compel the issuance
of subpoenas duces tecum, which was filed after respondents’ evidence was due
here, need not be addressed here because it is rendered moot by our disposition.
7
SUPREME COURT OF OHIO
Mandamus
{¶ 16} “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(C)(1). Although “[w]e
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, 932 N.E.2d 327, ¶ 6,
the relator must still establish entitlement to the requested extraordinary relief by
clear and convincing evidence, State ex rel. Doner v. Zody, 130 Ohio St. 3d 446,
2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus (“Relators in
mandamus cases must prove their entitlement to the writ by clear and convincing
evidence”); State ex rel. Husted v. Brunner, 123 Ohio St. 3d 288, 2009-Ohio-5327,
915 N.E.2d 1215, ¶ 18, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus (“Clear and convincing evidence is
‘that measure or degree of proof which is more than a mere “preponderance of the
evidence,” but not to the extent of such certainty as is required “beyond a
reasonable doubt” in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established’ ”).
Scope of Mandamus Claims:
Effect of Denial of Relator’s Motion for Leave to Amend Complaint
{¶ 17} In his merit briefs, McCaffrey claims entitlement to the requested
extraordinary relief based upon all of the categories of documents he specified in
his May 21, 2010 and July 28, 2010 requests. But in his complaint, McCaffrey
limited his request for extraordinary relief in mandamus to the first (calendars),
second (hours worked and duties performed), fifth (complaints, claims, or
grievances by or against the Mahoning County Prosecutor’s Office concerning
matters involving the grand jury), sixth (communications between the Mahoning
8
January Term, 2012
County Prosecutor’s Office and Mahoning County Common Pleas Court Judge
Evans concerning matters involving the grand jury), and seventh
(communications between the Mahoning County Prosecutor’s Office and the
grand jurors) categories of copies of documents specified in his July 28, 2010
request. And we denied his motion for leave to amend his complaint to include
claims based on the remaining categories of documents stated in his requests
when his proffered amended complaint included allegations concerning the
suppressed deposition of a Mahoning County Prosecutor’s Office clerical
assistant. 129 Ohio St. 3d 1407, 2011-Ohio-3244, 949 N.E.2d 1003.
{¶ 18} Therefore, McCaffrey waived any claim concerning the categories
of records not specified in his complaint, including those relating to support
provided by any employee of the Mahoning County Prosecutor’s Office to the
special prosecutors and the e-mails received by Gains, Stratford, and Bricker from
2008 to July 2010 relating to Oakhill Renaissance Place, the special prosecutors,
or the grand jury. See, e.g., State ex rel. Mack v. Collier, 129 Ohio St. 3d 497,
2011-Ohio-4188, 954 N.E.2d 115 (relator waived claim for writ of mandamus that
he did not seek in his mandamus complaint).
Scope of Mandamus Claims:
Requirement of Prior Request
{¶ 19} In his complaint, McCaffrey requests a writ of mandamus to
compel respondents to provide him with copies of the corresponding metadata to
the categories of documents specified therein. Metadata is “[s]econdary data that
organize, manage, and facilitate the use and understanding of primary data.”
Black’s Law Dictionary 1080 (9th Ed.2009). Respondents claim that McCaffrey
is not entitled to the requested metadata, because he did not properly request it.
We agree.
{¶ 20} “R.C. 149.43(C) requires a prior request as a prerequisite to a
mandamus action.” State ex rel. Taxpayers Coalition v. Lakewood, 86 Ohio St. 3d
9
 SUPREME COURT OF OHIO
385, 390, 715 N.E.2d 179 (1999); Strothers v. Norton, 131 Ohio St. 3d 359, 2012-
Ohio-1007, 965 N.E.2d 282, ¶ 14.
{¶ 21} McCaffrey did not specify his request for metadata in either his
May 21, 2010 or in his July 28, 2010 records request. Instead, he requested that
the prosecutor’s office “make available at cost copies of the following categories
of documents.” (Emphasis added.) And even though McCaffrey also specified in
his request that “ ‘records’ shall mean and include any document, device,
recording (audio, visual, or electronically stored), transcript, or item, regardless of
physical form or characteristic, including an electronic record as defined in
Section 1306.01 of the Revised Code,” he did not specify that the “documents”
were to include metadata.
Nonexistent Records
{¶ 22} McCaffrey did request “[r]ecords of communications between the
Mahoning County Prosecutor[’]s Office (including any one of its employees) and
Mahoning County Common Pleas Judge Evans concerning matters involving the
Mahoning County Grand Jury (term beginning on or about January 2010 and
expiring on July 30, 2010)” and “[r]ecords of communications between the
Mahoning County Prosecutor[’]s Office (including any one of its employees) and
persons comprising the Mahoning County Grand Jury (term beginning on or
about January 2010 and expiring on July 30, 2010),” and he also sought relief
based on these requests in his complaint.
{¶ 23} The evidence establishes, however, that these records do not exist.
For example, in his verified discovery answers, Gains denied that he had any
documents that were responsive to these requests, and his denials were consistent
with his August 19, 2010 response to McCaffrey’s requests.
{¶ 24} McCaffrey claims that some of these requested records exist for
the first category because of respondents’ statement in their merit brief that they
had “subsequently located attorney-client communications between the
10
January Term, 2012
Prosecuting Attorney’s Office and Judge Evans, but these documents did not
involve the grand jury, but involved another matter unrelated to the indictment
and grand jury.” But there is no evidence to support the existence of records of
communications between the Mahoning County Prosecutor’s Office and the judge
concerning matters involving the grand jury, and respondents’ statement in their
brief expressly specifies that any communications did not concern matters
involving the grand jury.
{¶ 25} McCaffrey further claims that there is evidence that a record exists
that is responsive to the second records category because Gains testified that
Mahoning County Assistant Prosecuting Attorney Don Duda heard from a county
employee about potential misconduct by a grand juror, and Gains instructed Duda
to write a letter concerning what he had been told, which would be sealed and
given to Stratford to forward to the special prosecutors. But the letter did not
constitute a record of a communication between the prosecutor’s office and a
member of the grand jury—at best, it was a communication between the
prosecutor and the special prosecutors that summarized a conversation between an
assistant prosecuting attorney and a county employee about a grand juror.
{¶ 26} Therefore, McCaffrey has not established that these records exist
by the requisite clear and convincing evidence. Respondents do not have any
duty under the Public Records Act to create records that do not exist. State ex rel.
Chatfield v. Gammill, 132 Ohio St. 3d 36, 2012-Ohio-1862, 968 N.E.2d 477, ¶ 3.
Insofar as McCaffrey claims that he has “a reasonable and good faith belief that
[these] [d]ocuments do, in fact, exist, and is entitled to know what steps, if any,
Gains took to search for the * * * [d]ocuments,” his belief does not constitute
sufficient evidence to establish that the documents do exist, and there is no duty
under R.C. 149.43 for respondents to detail the steps taken to search for records
responsive to the requests. State ex rel. Patton v. Rhodes, 129 Ohio St. 3d 182,
2011-Ohio-3093, 950 N.E.2d 965, ¶ 17, quoting State ex rel. Pipoly v. State
11
SUPREME COURT OF OHIO
Teachers Retirement Sys., 95 Ohio St. 3d 327, 2002-Ohio-2219, 767 N.E.2d 719,
¶ 18 (“ ‘It is axiomatic that in mandamus proceedings, the creation of the legal
duty that a relator seeks to enforce is the distinct function of the legislative branch
of government, and courts are not authorized to create the legal duty enforceable
in mandamus’ ”).
Complaints, Claims, or Grievances
{¶ 27} McCaffrey also requests “[r]ecords of any complaint, claim or
grievance generated by or against the Mahoning County Prosecutor[’]s Office (or
any one of its employees) concerning matters involving the Mahoning County
Grand Jury (term beginning on or about January 2010 and expiring on July 30,
2010)” and sought these records in his complaint.
{¶ 28} He first cites the same letter Gains instructed Assistant Prosecuting
Attorney Duda to draft concerning what a county employee told him about
possible misconduct by a grand juror. The “complaint” referred to in the letter,
however, was generated neither by nor against the county prosecutor’s office—it
was generated by an unnamed county employee against a grand juror.
{¶ 29} McCaffrey next cites a complaint regarding a grand juror that led
to his removal by the presiding judge. Judge Evans noted in his January 7, 2010
letter informing the grand juror that he was being discharged that the court “was
informed by Assistant Prosecutor Dawn Cantalamessa that [his] actions upon
convening of the first case to be heard by the Grand Jury on January 7, 2010 were
other than appropriate.” But there is no evidence that a record was made of any
communication between the assistant prosecutor and Judge Evans. As Assistant
Prosecuting Attorney Bricker testified, the judge could have been informed of the
grand juror’s misconduct by an oral communication instead of by a written one.
{¶ 30} Finally, McCaffrey cites testimony by Gains to claim that “it is
clear that a complaint was filed with the Office of Disciplinary Counsel against
[Assistant Prosecuting Attorney] Stratford relating to her ongoing role in the
12
January Term, 2012
Oakhill investigation, and that Mr. Gains defended her in that matter, writing one
or more responsive letters on her behalf.” But Gains’s testimony is conflicting on
the existence of these documents. And even assuming that these records
concerning the alleged grievance actually exist, they would relate to a grievance
filed against Stratford, which would be exempt from disclosure under Gov.Bar R.
V(11)(E)(1) (“All proceedings and documents relating to review and investigation
of grievances made under these rules shall be private,” with exceptions not
relevant here). Notwithstanding McCaffrey’s argument to the contrary, the mere
fact that attorneys are “not required to take the oath set forth in Gov.Bar R.
V(11)(E)(4) does not exempt them from the obligation to maintain the privacy of
a disciplinary grievance prior to the certification of a complaint by a probable-
cause panel.” Disciplinary Counsel v. Pullins, 127 Ohio St. 3d 436, 2010-Ohio-
6241, 940 N.E.2d 952, ¶ 14.
Calendars
{¶ 31} McCaffrey requests “[a]ll calendars” of Gains, Stratford, and
Bricker for the period of November 1, 2008, through the July 28, 2010 date of his
request. Respondents withheld the requested calendars based on Internatl. Union,
United Auto., Aerospace & Agricultural Implement Workers of Am. v. Voinovich,
100 Ohio App. 3d 372, 654 N.E.2d 139 (10th Dist.1995).
{¶ 32} In Internatl. Union, the Tenth District Court of Appeals held that
the governor’s personal calendars and appointment books were not public records
subject to disclosure under R.C. 149.43 because there was no evidence that the
calendars and books documented any official purpose:
[R]espondent asserts in his brief that his personal calendars and
appointment books are not circulated within his office for any
official purpose, do not serve to document any official activities or
functions within the office, are maintained solely by him, and may
13
SUPREME COURT OF OHIO
be discarded at any time. In contrast, respondent contends that the
public calendar, which was made available to relator, documents
his official activities and functions and, thus, constitutes a “record”
and “public record” subject to disclosure.
Relator’s “Individual Evidentiary Statement” fails to
present any factual basis for its assertion that the requested items
serve to document either the organization, functions, policies,
decisions, procedures, operations, or other activities of
respondent’s office. Indeed, relator has not asserted that other
members of respondent’s office had access to or used his personal
calendars or appointment books for any official purpose. In the
absence of any evidence to the contrary, we must accept
respondent’s assertions that the personal calendars and
appointment books are maintained solely by him for his own
personal convenience, and do not serve to document the official
functions, activities, etc. of the Governor’s Office. Thus, we
conclude that because respondent’s personal calendars and
appointment books do not serve to “document the organization,
functions, policies, decisions, procedures, operations or other
activities of the office,” these documents do not meet the definition
of a “record” as used in R.C. 149.011(G) and, thus, are not “public
records” subject to disclosure pursuant to R.C. 149.43
Id. at 377-378.
{¶ 33} Unlike the personal calendars at issue in Internatl. Union, the
calendars here, as established by the uncontroverted evidence, were used at least
occasionally by Gains, Stratford, and Bricker to make work-related entries, like
hearing dates and deadlines for briefs. Work-related calendar entries are
14
January Term, 2012
manifestly items created by Mahoning County Prosecutor’s Office employees that
serve to document the organization, functions, policies, decisions, procedures,
operations, or other activities of the office. These portions of the requested
calendars consequently are records for purposes of R.C. 149.011(G) and 149.43.
See R.C. 149.011(G); State ex rel. Data Trace Information Servs., L.L.C. v.
Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 2012-Ohio-753, 963 N.E.2d
1288, ¶ 31; Kish v. Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811,
¶ 20 (“any record that a government actor uses to document the organization,
policies, functions, decisions, procedures, operations, or other activities of a
public office can be classified reasonably as a record”).
{¶ 34} Therefore, McCaffrey is entitled to the requested copies of those
portions of the calendars of Gains, Stratford, and Bricker for the pertinent period
that are work-related entries.
Records of Hours Worked and Duties Performed
{¶ 35} For the final category of records requested by McCaffrey that was
the subject of his complaint, he seeks copies of “[a]ll records of hours worked and
duties performed by Gains, Stratford, and Bricker for the period of November 1,
2008,” until the date of his July 28, 2010 request.
{¶ 36} In responding to this request, respondents provided redacted copies
of civil-case logs for Gains, Stratford, and Bricker. Insofar as McCaffrey
requested the duties performed by these attorneys, the narrative portions of
respondents’ opinion and miscellaneous logs were properly redacted based on
attorney-client privilege. “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 those records.” State
ex rel. Besser v. Ohio State Univ., 87 Ohio St. 3d 535, 542, 721 N.E.2d 1044
(2000); R.C. 149.43(A)(1)(v). We have similarly held that the narrative portions
of itemized attorney-billing statements containing descriptions of legal services
15
SUPREME COURT OF OHIO
performed by counsel for a client are protected by the attorney-client privilege.
State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St. 3d 10,
2011-Ohio-6009, 959 N.E.2d 524, ¶ 28-29.
{¶ 37} Therefore, respondents complied with McCaffrey’s request by
providing the redacted records.
Sealed Records
{¶ 38} Respondents claim that records concerning the underlying criminal
cases that were provided for the court’s in camera review are exempt from
disclosure under the Public Records Act as trial-preparation records, confidential
law-enforcement investigatory records, or records that are otherwise exempt
under state law. McCaffrey counters that these exemptions are inapplicable
because respondents were not prosecuting the criminal cases after the November
2008 appointment of the special prosecutors so that respondents should comply
with his requests for records relating to respondents’ support and assistance to the
special prosecutors after their appointment and e-mails sent or received by Gains,
Stratford, and Bricker after the appointment of the special prosecutors.
{¶ 39} These requests, however, are not part of the relief requested in
McCaffrey’s complaint, and we denied his motion for leave to amend his
complaint when he relied on evidence from the suppressed deposition. Therefore,
McCaffrey’s claim that any exemptions are inapplicable because he was seeking
records of respondents’ misconduct rather than evidence concerning the then-
pending criminal cases is not properly before this court.
{¶ 40} In fact, even assuming that the claim was properly before us, it
appears that the records were exempt from disclosure under R.C. 149.43 as trial-
preparation records of the underlying criminal cases. See State ex rel. Steckman v.
Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994), paragraphs two and three of
the syllabus (“In the criminal proceeding itself, a defendant may use only Crim.R.
16 to obtain discovery,” and “Information, not subject to discovery pursuant to
16
January Term, 2012
Crim.R. 16(B), contained in the file of a prosecutor who is prosecuting a criminal
matter, is not subject to release as a public record pursuant to R.C. 149.43 and is
specifically exempt from release as a trial preparation in accordance with R.C.
149.43(A)(4)”).
{¶ 41} McCaffrey’s reliance on Gilbert v. Summit Cty., 104 Ohio St. 3d
660, 2004-Ohio-7108, 821 N.E.2d 564, State ex rel. Morgan v. New Lexington,
112 Ohio St. 3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, and State ex rel. Keller v.
Cox, 85 Ohio St. 3d 279, 707 N.E.2d 931 (1999), to claim otherwise is misplaced.
Gilbert and Morgan merely stand for the proposition that we have not recognized
an analogue to Steckman for civil litigants to circumvent limits on civil discovery
to obtain certain records. See Morgan at ¶ 43-45. And Keller simply reiterates
the unremarkable proposition that personnel and internal investigative records of
police officers—aside from certain personal information protected by the
constitutional right of privacy—are public records under R.C. 149.43 “because
they have nothing to do with the crime or the criminal case itself.” Keller at 282.
By contrast, a review of the sealed records here establishes that the records have
everything to do with the criminal cases and nothing to do with McCaffrey’s
assertions of prosecutorial misconduct. And the mere fact that the cases have now
been dismissed without prejudice by the state does not prevent the records from
remaining exempt because “[o]nce a record becomes exempt from release as a
‘trial preparation record,’ that record does not lose its exempt status unless and
until all ‘trials,’ ‘actions’ and/or proceedings’ have been fully completed.”
Steckman at paragraph four of the syllabus.
Conclusion
{¶ 42} Therefore, relator has, for the most part, not established his
entitlement to the requested extraordinary relief in mandamus for most of the
requests that are the subject of his complaint, and we deny the writ for most of his
claims. Relator, however, has established his entitlement to a writ of mandamus
17
SUPREME COURT OF OHIO
to compel respondents to provide copies of those portions of the requested
calendars of Gains, Stratford, and Bricker that are work-related entries for the
period of November 1, 2008, to July 2010, and we grant the writ to that limited
extent.
Writ granted in part
and denied in part.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Baker & Hostetler, L.L.P., Stephen J. Schlegelmilch, Lisa M. Ghannoum,
and Sara L. Witt, for relator.
Paul J. Gains, Mahoning County Prosecuting Attorney, and Tim Tusek,
for respondent.
______________________
18