Cleveland Firefighters Assn. IAFF Local 93 v. Cleveland Dept. of Law

[Cite as Cleveland Firefighters Assn. IAFF Local 93 v. Cleveland Dept. of Law, 2021-Ohio-3602.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ASSOCIATION OF CLEVELAND
FIRE FIGHTERS IAFF LOCAL 93, :
Requester-Appellee, :
No. 110329
v. :
CITY OF CLEVELAND, DEPARTMENT
OF LAW, :
Respondent-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 7, 2021
Civil Appeal from the Court of Claims of Ohio
Case No. 2020-00373PQ
Appearances:
Diemert & Associates Co., L.P.A., Joseph W. Diemert, Jr.,
Thomas M. Hanculak, and Mark V. Guidetti, for
appellee.
Barbara A. Langhenry, Cleveland Director of Law,
William M. Menzalora, Chief Assistant Director of Law,
and Timothy J. Puin, Assistant Director of Law, for
appellant City of Cleveland, Department of Law.
LARRY A. JONES, SR., J.:
{¶ 1} Respondent-appellant, the city of Cleveland Law Department (“the
city”), appeals from the Ohio Court of Claims’ judgment overruling the city’s
objections to a special master’s report and recommendation and adopting the
report and recommendation. The Court of Claims’ judgment was a mandate to the
city to release all records that were made under the requestor-appellee, the
Association of Cleveland Fire Fighters, IAFF Local 93’s (“Local 93”), public-records
request for emails that city of Cleveland Fire Chief Angelo Calvillo (“Chief Calvillo”
or “the Chief”) sent, received, and was copied on from January 26, 2020, through
February 5, 2020.1 For the reasons that follow, we affirm.
Procedural and Factual History
{¶ 2} On May 11, 2020, Local 93 made the above-mentioned public
records request to the city. On the same day the request was made, the city
acknowledged the request and responded to Local 93 that:
[t]his letter seeks to clarify your request. In order to search for the
responsive, documents you are requesting, we will have to have
keywords in order to use in our search. As this stands, this request is
vague and overly broad. * * * Upon receipt of your clarification, the
City will further respond to your public record request as required by
law. If you have any questions, please reply to this email. Thank you
for your attention.
{¶ 3} The following day, May 12, 2020, Local 93 responded to the city’s
request for clarification, stating that “we are seeking all email correspondence for
the time-period as outlined. * * * We believe this request is reasonable and not
1The judgment has been stayed pending the outcome of this appeal.
overly broad.” The city refused to search for the Chief’s emails without search
terms being provided, and thus, on June 11, 2020, Local 93 filed the within public-
records-access action against the city in the Court of Claims pursuant to R.C.
2743.75.
{¶ 4} After this action was filed, in September 2020, Local 93 narrowed its
request to the Chief’s email correspondence dealing solely with emergency
responses, such as medical emergencies, structure fires, and motor vehicle
accidents from the same timeframe as previously requested, January 26, 2020,
through February 5, 2020.
{¶ 5} On October 5, 2020, the city notified Local 93 that it had identified
documents responsive to its request and that Local 93 could view the records
through the city’s document management system, GovQA. The records consisted
of two audio files; 153 pages of emails with redactions for medical information and
motor-vehicle license information; and four emails that were completely redacted
based on the attorney-client privilege, with an attached redaction log. The four
redacted emails are the subject matter of this appeal.
{¶ 6} Local 93 objected to the redaction of emails, contending that they
were not subject to attorney-client privilege. The parties attempted,
unsuccessfully, to mediate the dispute. The special master identified the “sole
remaining issue” as the “redaction of the withheld records based on attorney-client
privilege.”
{¶ 7} The city’s claim of attorney-client privilege was rooted in emails
involving William Menzalora (“Menzalora”), who, at all relevant times, was the
city’s Chief Assistant Director of Law, Division of Public Safety. Three of the four
emails at issue were sent on January 26, 2020, and the fourth was sent the
following day, January 27. All four emails were relative to an early morning fire
that had occurred in the city on January 26, 2020.
{¶ 8} For background context, the precipitating email (not at issue here)
was sent on January 26, 2020, by Norman Michael (“Michael”), identified in the
email as “Public Information Officer, Cleveland Division of Fire,” to Chief Calvillo;
three city employees were copied on the email, but Menzalora was not one of them.
Michael detailed the fire and a positive outcome in the email. There were several
emails thereafter among city employees relative to media coverage of the fire;
Menzalora was not part of that email chain.
{¶ 9} The first email that is the subject of this appeal was sent later that
same day, January 26, by Chief Calvillo to Michael McGrath (“McGrath”), then
Director of Public Safety for the city; Menzalora was copied on the email and the
subject line contained the language “Attorney-Client privilege.” The email was two
sentences, and as related to Menzalora, involved a scheduling matter.
{¶ 10} The second subject email was sent a few minutes after the first
subject email. Chief Calvillo emailed Michael and copied Menzalora, among other
city employees. No advice was sought, or questions were posed. Again, the subject
line of the email contained the language “Attorney-Client privilege.”
{¶ 11} A few minutes later, the third subject email was sent from the Chief
to Menzalora, with McGrath copied on it, and contained the “Attorney-Client
privilege” language in the subject line. The entirety of the email related to a
scheduling matter.
{¶ 12} The final subject email was sent the following day, January 27,
2020. It was from Chief Calvillo to the Assistant Chief, Division of Fire, and
Menzalora was copied on it. The subject line contained the “Attorney-Client
privilege” language. The greeting of the email was solely to the Assistant Chief,
and the body of the email asked him to review a document.
{¶ 13} On December 30, 2020, the special master filed his report and
recommendation. The special master found that the city failed to meet its burden
of proving that the redacted emails contained privileged attorney-client
communication. In light of his conclusion, the special master recommended that
the city be ordered to provide Local 93 unredacted copies of the emails. The report
and recommendation were signed by the Clerk of the Court of Claims of Ohio, with
the word “for” written next to the name of the special master.
{¶ 14} The city filed objections to the special master’s report. On January
26, 2021, the Court of Claims overruled the city’s objections, adopted the special
master’s report, and ordered release of the emails. The city now appeals, and
assigns the following three assignments of error for our review:
First Assignment of Error: The Court of Claims erred in adopting the
special master’s report and recommendation of December 30, 2020,
(01/26/2021 Decision and Entry), because the report and
recommendation applied the incorrect burden of proof in requiring
the City to show by clear and convincing evidence that the emails
requested by Local 93 are exempt from the Public Records Act by
virtue of the attorney-client privilege (12/30/2020 Report and
Recommendation, p. 8, passim).
Second Assignment of Error: The Court of Claims erred in adopting
the special master’s report and recommendation of December 30,
2020, (01/26/2021 Decision and Entry), because the report and
recommendation published the headers and content of emails that the
City claimed were privileged, before final adjudication of the City’s
privilege defense, and in doing so gave misleading descriptions of the
email headers that omitted the express designation of the emails as
attorney-client privileged (12/30/2020 Report and Recommendation,
“The Cover Emails and Attachments,” pp. 4-5).
Third Assignment of Error: The Court of Claims erred in adopting the
special master’s report and recommendation of December 30, 2020,
(01/26/2021 Decision and Entry), because the report and
recommendation was not signed by the special master and therefore
was not properly submitted under R.C. 2743.75 (12/30/2020 Report
and Recommendation, p. 10).
Law and Analysis
{¶ 15} Ohio’s Public Records Act, codified in R.C. 149.43, provides that
upon request a public office “shall make copies of the requested public record
available to the requester at cost and within a reasonable period of time.” R.C.
149.43(B)(1). Ohio courts construe the Public Records Act liberally in favor of
broad access, with any doubt resolved in favor of disclosure of public records. State
ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56,
2018-Ohio-5133, 123 N.E.3d 928, ¶ 12.
{¶ 16} As mentioned, Local 93 filed its complaint pursuant to R.C. 2743.75,
which provides a statutory procedure as an alternative to a mandamus action to
resolve disputes over public records requests. R.C. 2743.75(A) states:
In order to provide for an expeditious and economical procedure that
attempts to resolve disputes alleging a denial of access to public
records in violation of division (B) of section 149.43 of the Revised
Code, except for a court that hears a mandamus action pursuant to
that section, the court of claims shall be the sole and exclusive
authority in this state that adjudicates or resolves complaints based
on alleged violations of that section. The clerk of the court of claims
shall designate one or more current employees or hire one or more
individuals to serve as special masters to hear complaints brought
under this section. All special masters shall have been engaged in the
practice of law in this state for at least four years and be in good
standing with the supreme court at the time of designation or hiring.
The clerk may assign administrative and clerical work associated with
complaints brought under this section to current employees or may
hire such additional employees as may be necessary to perform such
work.
{¶ 17} In its first assignment of error, the city contends that the special
master used the wrong burden in determining whether the attorney-client
privilege applied to Local 93’s requests at issue. Specifically, the city contends that
the special master erred based on the following in the report and recommendation:
that the city had only offered conclusory assumptions in support of its position that
did not “rise to the level of clear and convincing proof necessary to apply an
exception to the Public Records Act.” The special master cited State ex rel.
Summers v. Fox, 163 Ohio St.3d 217, 2020-Ohio-5585, 169 N.E.3d 625, in support
of his conclusion.
{¶ 18} The Ohio Supreme Court recently addressed the legal standard and
evidentiary burdens applicable to public record proceedings under R.C. 2743.75 in
Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-
Ohio-5371, 170 N.E.3d 768. In Welsh-Huggins, a judge of the Jefferson County
Court of Common Pleas was shot by a man as the judge was about to enter the
courthouse through a nonpublic secured entry. A camera was positioned outside
the entry and captured the shooting. Andrew Welsh-Huggins (“Welsh-Huggins”),
a reporter for the Associated Press, sent a public-records request to the Jefferson
County Prosecutor for the video of the shooting. The prosecutor denied the
request, citing multiple exemptions, including that it was a “security record” under
R.C. 149.433(A)(1) and 149.433(B)(1).
{¶ 19} Welsh-Huggins filed a public-records access complaint in the Ohio
Court of Claims pursuant to R.C. 2743.75. A special master found that the
prosecutor failed to meet her burden to prove that any portion of the video was
exempt as a security record under R.C. 149.433(A)(1). The special master
recommended that the prosecutor be ordered to provide Welsh-Huggins a
redacted copy of the video in any available format that Welsh-Huggins requested.
The Court of Claims adopted the special master’s report over the prosecutor’s
objections and ordered release of the video.
{¶ 20} The prosecutor filed an appeal to the Seventh District Court of
Appeals pursuant to R.C. 2743.75(G)(1). The court of appeals reversed the
judgment of the Court of Claims, holding that the video was exempt from
disclosure as a security record under R.C. 149.433(A)(1) and 149.433(B)(1).
Welsh-Huggins v. Office of the Pros. Atty., Jefferson Cty., 2019-Ohio-3967, 133
N.E.3d 550, ¶ 1 (7th Dist.). The court of appeals found no error in requiring the
prosecutor to prove that the video fell squarely within the claimed exemption. Id.
at ¶ 50. The Ohio Supreme Court accepted Welsh-Huggins’s appeal and agreed to
consider the following proposition of law: “A public office must produce
competent, admissible evidence to support an assertion of an exception to the
Public Records Act.” Welsh-Huggins, 2020-Ohio-5371, at ¶ 8.
{¶ 21} The Ohio Supreme Court recognized that aside from stating that the
“‘special master shall submit to the court of claims a report and recommendation
based on the ordinary application of statutory law and case law as they existed at
the time of the filing of the complaint,’” R.C. 2743.75 does not set forth specific
burdens of proof. Id. at ¶ 19, quoting R.C. 2743.75(F)(1). Thus, the court clarified
what the standards are.
{¶ 22} The court noted that in a mandamus public-records action, “the
burden of persuasion is on the requester to establish entitlement to the
extraordinary writ by clear and convincing evidence.” Id. at ¶ 26. Then, “[i]f a
public office or person responsible for public records withholds a record on the
basis of a statutory exception, the ‘burden of production’ is on the public office or
records custodian to plead and prove facts clearly establishing the applicability of
the exemption.” Id. at ¶ 27.2
{¶ 23} In regard to public record actions brought under R.C. 2743.75, as is
the case here, the court found that “public-records-access proceedings in the Court
of Claims [are] consistent with the standards that are applicable to mandamus-
2See id. at ¶ 20-22 for the court’s discussion of the two different aspects of “burden of
proof,” that are “burden of production” and “burden of persuasion.”
enforcement actions.” Id. at ¶ 32. Thus, the court found that the “‘burden of
persuasion’ was at all times on Welsh-Huggins to prove his right to relief under
R.C. 2743.75 by the requisite quantum of evidence.” Id. at ¶ 34. The court noted
that, the “special master found, as in mandamus actions, that the requester must
establish entitlement to relief by clear and convincing evidence.” Id. Welsh-
Huggins did not dispute that finding, and the court stated that “[w]e therefore
assume without deciding that his right to obtain relief under R.C. 2743.75 for the
denial of access to public records in violation of R.C. 149.43(B) required clear and
convincing evidence.” Id.
{¶ 24} The court then considered the respondent’s “burden of production”
if the respondent office or person refuses to release the requested records on the
ground of a statutory exemption and held that the burden is: “to plead and prove
facts establishing that the requested record falls squarely within the exemption.”
Id. at ¶ 35. Thus, the city is correct that its burden was not clear and convincing
evidence; rather, the city was required to prove that the subject emails fell squarely
within the attorney-client-privilege exemption.
{¶ 25} We find the above to be true despite the special master’s citation to
State ex rel. Summers, 163 Ohio St.3d 217, 2020-Ohio-5585, 169 N.E.3d 625, for
the proposition that the city had to prove the exception by clear and convincing
evidence. In State ex rel. Summers, the relator, Charles Summers (“Summers”)
sought records from a prosecutor’s office and sheriff’s office (collectively “the
county”); the records regarded his son who had been prosecuted and imprisoned
for sexually oriented offenses. The county denied the requests, contending that
Summers was acting on his son’s behalf and, as such, had to follow the same
requirements an inmate would have to follow when seeking records, and had not
done so. The county cited a Facebook page that the son’s parents set up to “seek
justice” for him and contended that the son directed his parents as to what to post.
{¶ 26} In considering whether Summers was a designee for his son, the
Supreme Court of Ohio stated the following:
Essentially, the county invites us to assume that if [the son] was
directing his father in the operation of the Facebook page, then he
must have also been the driving force behind the requests. But an
assumption does not rise to the level of clear and convincing proof
necessary to apply an exception to the Public Records Act.
Id. at ¶ 33.
{¶ 27} In his report and recommendation here, the special master quoted
the above State ex rel. Summers language ─ “an assumption does not rise to the
level of clear and convincing proof necessary to apply an exception to the Public
Records Act” — in finding that the city’s claimed exemption based on attorney-
client privilege was “conclusory.” Court of Claims Record at 26, p. 8.
{¶ 28} But in State ex rel. Summers, 163 Ohio St.3d 217, 2020-Ohio-5585,
169 N.E.3d 625, the Ohio Supreme Court used the clear and convincing language
in the context of determining whether Summers was a designee for his son.
Further reading of the court’s opinion demonstrates that it applied the same
standard as it did in Welsh-Huggins, 163 Ohio St.3d 337, 2020-Ohio-5371, 170
N.E.3d 768, in determining whether the custodian had an exemption to a public
records request. Specifically, the court held in State ex rel. Summers that,
Because the county has invoked a number of statutory exceptions to
the Public Records Act’s disclosure requirement, it bears the burden
of proof with respect to those exceptions. State ex rel. Besser v. Ohio
State Univ., 89 Ohio St.3d 396, 398, 732 N.E.2d 373 (2000). To meet
this burden, a custodian must prove that the requested records fall
squarely within the exception. State ex rel. Miller v. Ohio State Hwy.
Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 23.
(Emphasis added.) State ex rel. Summers at ¶ 28.
{¶ 29} Thus, both Welsh-Huggins and State ex rel. Summers cite the same
burden for a custodian claiming an exception: that the records fall squarely within
the exception.
{¶ 30} In a case similar to the within case, the Court of Claims modified a
special master’s report and recommendation on the issue of the burden of proof
applicable to a defense based on the attorney-client privilege. White v. Dept. of
Rehab. & Corr., Ct. of Cl. No. 2018-00762PQ, 2019-Ohio-472. The Court of
Claims found as follows:
The special master’s application of the standard of proof relative to
[ODRC’s] claim of attorney-client privilege is erroneous because the
special master applied a clear-and-convincing standard of proof,
instead of applying a preponderance of the evidence standard of proof
relative to ODRC’s claim of an exception to disclosure.
Id. at ¶ 15.
{¶ 31} The Court of Claims conducted a review of the subjected records for
attorney-client privilege under the standard set forth by the Ohio Supreme Court
in State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-
1508, 824 N.E.2d 990, and concluded that the records were protected by the
privilege. The requestor appealed to the Tenth Appellate District. White v. Dept.
of Rehab. & Corr., 10th Dist. Franklin No. 19AP-85, 2020-Ohio-386.
{¶ 32} Regarding the burden of proof for a claimed exemption for a public
records request on the ground of attorney-client privilege, the Tenth Appellate
District held the following:
It is the well-settled law of Ohio that “[e]xceptions 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.”
Id. at ¶ 21, quoting 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. The
court then went on to analyze the records for attorney-client privilege under the
factors set forth in Leslie.
{¶ 33} As mentioned, the special master in the within case did reference the
incorrect burden ─ clear and convincing evidence ─ relative to the city’s claimed
exemption of the records on the ground of attorney-client privilege. However,
when the report is read in toto, it is clear that the special master applied the correct
burden; that is, whether the records fell squarely within the attorney-client
privilege.
{¶ 34} Specifically, the special master stated the correct burden elsewhere
in his report and recommendation: “If the public office withholds an identified
record on the basis of a public-records exemption, the public office then carries the
burden to prove that the record falls squarely within the exemption.” Court of
Claims Record at 26, p.2. Not only did the special master reference the correct
burden the city had, he analyzed the subject emails under the factors set forth for
determining attorney-client privilege in Leslie, 105 Ohio St.3d 262, 2005-Ohio-
1508, 824 NE.2d 990. Thus, despite the special master’s reference elsewhere in his
report to the city’s burden being that of clear and convincing evidence, the special
master actually articulated and used the correct standard in reviewing the emails.
{¶ 35} We now conduct a de novo review of the emails. See Ward v.
Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13
(“Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion
standard. * * * However, if the discovery issue involves an alleged privilege, * * * it
is a question of law that must be reviewed de novo.”).
{¶ 36} In Leslie, the Supreme Court of Ohio set forth an eight-part test for
the attorney-client privilege, stating:
Under the attorney-client privilege, “(1) [w]here legal advice of any
kind is sought (2) from a professional legal adviser in his [or her]
capacity as such, (3) the communications relating to that purpose, (4)
made in confidence (5) by the client, (6) are at his [or her] instance
permanently protected (7) from disclosure by himself [,herself,] 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. & Sur., 153 Ohio App.3d 28, 2003-Ohio-3358, 790 N.E.2d 817,
¶ 12 [(8th Dist.)]. Except under circumstances not relevant here, only
the client can waive the privilege.
Id. at ¶ 21.
{¶ 37} Upon review, the first three subject emails did not fall squarely
within the attorney-client privilege. They did not seek any kind of legal advice. For
example, the one email naming Menzalora as the primary recipient related to a
scheduling matter.
{¶ 38} The fourth email that was from Chief Calvillo to the Assistant Chief,
Division of Fire, is the trickiest. Although Menzalora was copied on the email, the
greeting of the email was solely to the Assistant Chief, and the body asked only for
the Assistant Chief’s review of a document.
{¶ 39} The attorney-client privilege does not require that the
communication pertain purely to legal advice, but “‘if a communication between a
lawyer and client would facilitate the rendition of legal services or advice, the
communication is privileged.’” 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, ¶ 27, quoting
Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir.1991). However,
simply copying an attorney on an email does not make it an attorney-client-
privileged communication. But sometimes interests intertwine. For example, legal
and business interests can intertwine. In a legal and business context, when the
dominant purpose of a communication is a business decision and not legal advice,
then “the communication cannot be insulated from discovery just by sending a
copy of it to a lawyer.” Waters v. Drake, S.D.Ohio No. 2:14-cv-1704, 2015 U.S.
Dist. LEXIS 164179, 4 (Dec. 8, 2015). See also McCall v. Procter & Gamble Co.,
S.D.Ohio No. 1:17-cv-406, 2019 U.S. Dist. LEXIS 143161, 4 (Aug. 22, 2019) (“A
communication does not obtain privileged status simply because an attorney is
copied.”).
{¶ 40} The city cites a recent Ohio Supreme Court case, State ex rel. Hogan
Lovells U.S., L.L.P. v. Ohio Dept. of Rehab. & Corr., Slip Opinion No. 2021-Ohio-
1762, for the proposition that even though an email does not specifically seek legal
advice, it must be viewed in context if it is part of an ongoing discussion that
involves legal counseling. Hogan Lovells is distinguishable from this case.
{¶ 41} Hogan Lovells involved a requestor seeking documents from the
Ohio Department of Rehabilitation and Correction (“DRC”) relating to drugs
intended to be used or considered for use in lethal injections. Relevant to this
case, the court considered the request “regarding any considered, proposed, or
current execution protocols, regulations, guidelines, checklists, notes, or other
documents that instruct or direct the carrying out of an execution.” Id. at ¶ 7. DRC
withheld the following as being attorney-client and work-product privileged:
(1) a summary of execution-protocol options prepared by DRC’s chief
counsel, (2) a May 16, 2019 e-mail and attached document sent by
DRC’s chief counsel to two DRC employees, (3) a May 21, 2019 e-mail
and attached document sent by a DRC employee to DRC’s chief
counsel, and (4) a June 11, 2019 e-mail and attached document sent
by DRC’s chief counsel to the governor’s chief counsel.
Id.
{¶ 42} The requestor did not “squarely challenge DRC’s claim that the four
records, at least to some extent, are covered by the attorney-client or attorney-
work-product privilege.” Id. at ¶ 13. The requestor contended that whatever
portion of the records was not exempt should be discoverable, however. The DRC,
on the other hand, contended that the entirety of a record should be withheld when
it contains privileged information that is “inextricably intertwined” with
nonprivileged information. Id. at ¶ 14.
{¶ 43} The court agreed with DRC, stating that the “attorney-client
privilege applies to communication that facilitates an attorney’s provision of legal
services or advice to a client.” Id. at ¶ 17, citing Toledo Blade, 121 Ohio St.3d 537,
2009-Ohio-1767, 905 N.E.2d 1221, at ¶ 27. “The privilege is not restricted just to
the provision of pure legal advice, but also covers the attorney’s own factual
investigation when that investigation is ‘incident to or related to any legal advice’
the attorney gives.” Id., quoting Toledo Blade at ¶ 29.
{¶ 44} In this case, the special master found that the emails addressed
administrative, not legal, matters. In considering the fourth email, we agree. The
email was directed to the assistant fire chief and sought the assistant’s review.
Menzalora was copied on the email, but no legal advice, questions, or comments
were sought from him or posed to him. Unlike in Hogan Lovells, the subject
emails in this case were not “‘incident to or related to any legal advice’” sought
from or given by Menzalora. Id., quoting Toledo Blade at id.{¶ 45} Further, the header in the subject line of the emails that they were
“Attorney-Client privilege” do not make them so. The content of the emails has to
involve attorney-client-privileged information, and our de novo review shows that
they did not contain privileged information.
{¶ 46} In light of the above, the first assignment of error is overruled.
{¶ 47} For its second assignment of error, the city contends that the special
master and the Court of Claims erred by publishing the headers of the emails and
descriptions of the emails, because they contained privileged information.
According to the city, this information should not have been published before the
matter was fully adjudicated. Further, the information from the emails that was
published omitted the city’s label of “attorney-client privilege”; the city contends
that “[i]f any language from the emails could be published, it would be this
language alone.”
{¶ 48} The city suggests that, even if we agree with the lower court’s
conclusion regarding the attorney-client privilege, “the Court of Claims decision
should be reversed in order to protect the right of a litigant to assert the privilege
until final adjudication.” According to the city, “[s]triking the report and
recommendation in part or toto from the record would be an appropriate remedy,
albeit an incomplete one, because no judicial act at this point can ‘unring the bell.’”
{¶ 49} Upon review, we disagree with the city’s contentions. Neither the
special master nor the Court of Claims revealed the substantive content of the
emails; rather, they merely described the contents. Further, after its in camera
review of the emails, the court appropriately placed them under seal for our
review.
{¶ 50} In light of the above, the second assignment of error is overruled.
{¶ 51} In its third assignment of error, the city contends that the Court of
Claims improperly adopted the special master’s report and recommendation
because it was signed by the clerk of court and not the special master. The city
cites R.C. 2743.75(F)(1) in support of its contention. That provision reads in
relevant part that, “the special master shall submit to the court of claims a report
and recommendation based on the ordinary application of statutory law and case
law as they existed at the time of the filing of the complaint.” According to the city
“shall submit” means that the special master “shall sign” the report and
recommendation. We disagree.
{¶ 52} The record demonstrates that the Clerk of Court for the Court of
Claims (“the Clerk”) is a magistrate. As noted by the Court of Claims in overruling
the city’s objections, a magistrate and a special master are both judicial officers.
Under R.C. 2743.75(A), the Clerk of Court for the Court of Claims has authority to
designate employees or hire one or more individuals to serve as special masters in
public-record disputes. In this case, the Clerk appointed the special master who
prepared the report and recommendation. On this record, we do not find that
because the Clerk signed for the special master, the report and recommendation is
void.
{¶ 53} The third assignment of error is overruled.
{¶ 54} Finally, Local 93 requests that we grant it attorney fees under R.C.
2743.75(G)(2), which provides as follows:
If a court of appeals in any appeal taken under division (G)(1) of this
section by the public office or person responsible for the public
records determines that the public office or person denied the
aggrieved person access to the public records in violation of division
(B) of section 149.43 of the Revised Code and obviously filed the
appeal with the intent to either delay compliance with the court of
claims’ order from which the appeal is taken for no reasonable cause
or unduly harass the aggrieved person, the court of appeals may
award reasonable attorney’s fees to the aggrieved person in
accordance with division (C) of section 149.43 of the Revised Code.
No discovery may be conducted on the issue of the public office or
person responsible for the public records filing the appeal with the
alleged intent to either delay compliance with the court of claims’
order for no reasonable cause or unduly harass the aggrieved person.
This division shall not be construed as creating a presumption that
the public office or the person responsible for the public records filed
the appeal with the intent to either delay compliance with the court of
claims’ order for no reasonable cause or unduly harass the aggrieved
person.
{¶ 55} Upon review, we decline to award attorney fees to Local 93. The
record does not demonstrate that the city “obviously filed the appeal with the
intent to either delay compliance with the Court of Claims’ order from which the
appeal is taken for no reasonable cause or [to] unduly harass” Local 93.
{¶ 56} In sum, although the special master made a reference to the
incorrect burden of proof at one point in his report, when his report is read in full,
he also stated the correct burden of proof and applied it. Upon our de novo review
of the subject emails, they are not exempt from production under the attorney-
client privilege. Further, neither the special master nor the Court of Claims
improperly published the substantive nature of the subject emails. And the special
master’s report was not void because the Clerk of Courts for the Court of Claims
signed the report on behalf of the special master. There is no evidence that the
city filed this appeal for purposes of delay or harassment and, therefore, Local 93’s
request for attorney fees is denied.
{¶ 57} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
ANITA LASTER MAYS, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR