Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs.

[Cite as Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., 2020-Ohio-4856.]
THE CINCINNATI ENQUIRER, A Case No. 2019-00789PQ
DIVISION OF GANNETT GP MEDIA,
INC. Special Master Jeff Clark
Requester REPORT AND RECOMMENDATION
v.
HAMILTON COUNTY BOARD OF
COMMISSIONERS
Respondent
The Ohio Public Records Act (PRA)
{¶1} “Public records are one portal through which the people observe their
government, ensuring its accountability, integrity, and equity while minimizing sovereign
mischief and malfeasance.” Kish v. Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846
N.E.2d 811, ¶ 16. “[T]he inherent, fundamental policy of R.C. 149.43 is to promote open
government, not restrict it.” State ex. rel. Besser v. Ohio State Univ., 89 Ohio St. 3d 396,
398, 732 N.E.2d 373 (2000) (“Besser II”). Public records inform the significant public
interest in the use of their tax money and other public funds. State ex rel. Toledo Blade
Co. v. Univ. of Toledo Foundation, 65 Ohio St. 3d 258, 261-263, 602 N.E.2d 1159
(1992). Therefore, R.C. 149.43 must be construed 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; Besser II at 405.
Request for Communications of Public Officials Regarding Specific
Agreements, Including Real Estate Purchases and Leases
{¶2} On November 20, 2018, Sharon Coolidge, a reporter for requester
Cincinnati Enquirer, made a public records request to the administrator for respondent
Hamilton County Board of Commissioners (the Board), as follows:
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Pursuant to the Ohio Open Records Act (Ohio Rev. Code Ann. Sec.
149.43 to 149.44), I am writing to request emails related to the new
Bengals agreement that involves the concert venue and purchasing Hilltop
Concrete.
Specifically, I am writing to request copies of the following emails:
Date Range: October 1, 2018 — November 20, 2018
Subject: The CSO Concert Venue at the Banks; and/or Paul Brown
Stadium; and/or Hilltop Concrete or any subsidiary thereof
Sender: Jeff Alutto and/or Todd Portune, Chris Monzel, Denise Driehaus,
John Bruggen, Judi Boyko, Tom Gabelman
Recipient: Jeff Alutto and/or Todd Portune, Chris Monzel, Denise
Driehaus, John Bruggen, Judi Boyko, Tom Gabelman
(Complaint at 3.) Over three months passed. On March 6, 2019, the Board denied the
request in its entirety: “After reviewing our files, the only records we located specific to
your request are covered by attorney-client privilege and are therefore not subject to
release under the Ohio Public Records Act.” (Id. at 9.) After additional correspondence,
the Board provided the Enquirer with 275 pages of heavily redacted records, with only
email headers visible. The substantive content of each email, letter, press release and
other communication was obscured. (Id., Exhibit D.)
{¶3} On July 11, 2019, the Enquirer filed a complaint pursuant to R.C. 2743.75
alleging denial of access to public records in violation of R.C. 149.43(B). Following
unsuccessful mediation, the Board filed a combined response and motion to dismiss
(Response) on September 25, 2019. On October 9, 2019, the Board filed an unredacted
copy of the withheld records, under seal. On November 20, 2019, the Enquirer filed a
response to the motion to dismiss (Reply). On January 27, 2020, the Board filed a
privilege log regarding exemptions claimed for the withheld records. On April 8, 2020,
the Board filed a descriptive list of correspondents to the withheld emails. On April 28,
2020, the Enquirer filed a further response.
Motion to Dismiss
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{¶4} In order to dismiss a complaint for failure to state a claim upon which relief
can be granted, it must appear beyond doubt that the claimant can prove no set of facts
warranting relief after all factual allegations of the complaint are presumed true and all
reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co.
v. Schroeder, 76 Ohio St. 3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set
of facts consistent with the complaint that would allow the claimant to recover, dismissal
for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St. 3d 84,
2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10. The unsupported conclusions of a complaint are,
however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v.
Lawson Milk Co., 40 Ohio St. 3d 190, 193, 532 N.E.2d 753 (1988).
A. Failure to Provide Records Promptly
{¶5} “The primary duty of a public office when it has received a public-records
request is to promptly provide any responsive records within a reasonable amount of
time and when a records request is denied, to inform the requester of that denial and
provide the reasons for that denial. R.C. 149.43(B)(1) and (3).” State ex rel. Cordell v.
Paden, 156 Ohio St. 3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11. Timeliness is
important because “[w]hen records are available for public inspection and copying is
often as important as what records are available.” (Emphasis sic.) (Citations omitted.)
State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St. 3d 58,
2002-Ohio-5311, 776 N.E.2d 82, ¶ 34. This is often significant for media reporters. Id. at
¶ 45. Whether a public office has complied with its duty to respond within a “reasonable
period of time” is evaluated based on the pertinent facts and circumstances of each
case. State ex rel. Kesterson v. Kent State Univ., 156 Ohio St. 3d 22, 2018-Ohio-5110,
123 N.E.3d 895, ¶ 19-20, 26-27. The requester bears the burden of demonstrating that
the public office’s response was unreasonably delayed. Cordell at 12.
{¶6} The Board asks the court to dismiss the claim that it violated the
requirement of R.C. 149.43(B)(1) to provide copies of public records “within a
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reasonable period of time.” However, the Board admits that it did not respond to the
request from November 20, 2018 until March 5, 2019. (Response at 3; Complaint,
Greiner Aff. – Exh. B.) The only explanation offered is: “The Respondent misplaced the
request and completely forgot that it was made.” (Response at 12.) This statement
amounts to an admission of negligence rather than support for a legal defense. I find
that the absence of any response for three and a half months, without justification,
constituted a violation of the timely response requirement in R.C. 149.43(B)(1). Cordell
at ¶ 13-14; State ex rel. DiFranco v. S. Euclid, 138 Ohio St. 3d 367, 2014-Ohio-538, 7
N.E.3d 1136, ¶ 20-21 (two months without any response constituted unreasonable
delay). Moreover, the Board’s initial delay had the follow-on effect of delaying the later
partial production of redacted records (on May 17, 2019) far beyond a reasonable
period of time. (Response at 3-4.) This constituted a further violation of both R.C.
149.43(B)(1) and (B)(7).
{¶7} Public offices are required to organize their offices and employ their staff in
such a way as to be able to make records available when requested. R.C.
149.43(B)(2);1 State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio
St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 36; State ex rel. Beacon Journal Pub.
Co. v. Andrews, 48 Ohio St. 2d 283, 289, 2 Ohio Op. 3d 434, 358 N.E.2d 565 (1976).
The statutory requirement of organization implies capable administrative management
of receipt, logging, processing, and response for public records requests. The Board
cites no case precedent accepting inadvertence or neglect is a valid defense to an
untimely response. The Supreme Court routinely rejects similar excuses for delay such
as scarce resources, expense, time involved, or interference with other duties. State ex
rel. Wadd v. Cleveland, 81 Ohio St. 3d 50, 53-54, 689 N.E.2d 25 (1998); Toledo Blade v.
Seneca Cty. Bd. of Commrs. at ¶ 36; Beacon Journal v. Andrews at 289. In State ex rel.
1 “To facilitate broader access to public records, a public office or the person responsible for
public records shall organize and maintain public records in a manner that they can be made available for
inspection or copying in accordance with division (B) of this section.” R.C. 149.43(B)(2).
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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, the respondent alleged “that its failure to respond in a timely
manner to the request was inadvertent and unintentional.” Id. at ¶ 31. The Supreme
Court declined to allow “inadvertence” to excuse respondent’s violation of its obligation
to timely respond. Id. at ¶ 31-33, 43-45. I find that the Board’s delay of more than three
months in making any response to the written request was not excused by its own
misplacement and forgetfulness.
{¶8} The Board further argues as mitigation that when the Enquirer challenged its
lengthy initial delay on February 28, 2020, it quickly reviewed the records and advised
that the entire request was denied. However, this demonstrated ability to evaluate and
deliver a response in six days only undermines the Board’s assertion that three months
was a reasonable period of time to respond. See Wadd at 53 (City’s concession of its
capabilities undermined the assertion that records were provided timely). Finally, the
record evidences that the Board chose, at that time, to redact essentially all content
other than header information from the communications – a minimally time-consuming
task. Based on these facts and circumstances, I find that the Board failed to provide the
requested records, or to inform Coolidge of denial, within a reasonable period of time
after the request was made.
B. Drafts are Records
The Board states that the requested emails “contained draft documents exempt from
disclosure.” (Response at 7-9.) However, all documents that a public office uses to
document its activities are “records” of the office, even if in preliminary or draft form.
See, e.g., Kish v. Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20;
State ex rel. Calvary v. Upper Arlington, 89 Ohio St. 3d 229, 232, 729 N.E.2d 1182
(2000); State ex rel. Post v. Schweikert, 38 Ohio St. 3d 170, 172-173, 527 N.E.2d 1230
(1988). Specifically, there is no exemption or defense as “non-record” for draft
proposals exchanged in the process of negotiating a contract. State ex rel. Cincinnati
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Enquirer v. Dupuis, 98 Ohio St. 3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 12-14, 18-
21 (settlement proposal). The Board provides no authority to the contrary, arguing only
that it would prefer not to disclose records of its negotiations. The Supreme Court has
rejected withholding of public records based solely on a public office’s policy preference.
State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Edn., 97 Ohio St. 3d
58, 2002 Ohio 5311, P54, 776 N.E.2d 82 at ¶ 21. Accord State ex rel. WBNS TV, Inc. v.
Dues, 101 Ohio St. 3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 37. The Board’s
responsive draft documents are thus records that must be produced, except to the
extent that any portion of a draft is subject to a public record exemption.
{¶9} The Board alleges that some drafts have been “discarded or replaced.” By
statute, public offices are only required to retain records that are necessary to document
the activities of the office. R.C. 149.40. Thus, any drafts that the Board properly
disposed of prior to Coolidge’s request need not be produced. State ex rel. Glasgow v.
Jones, 119 Ohio St. 3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 24, fn. 1. However, this
defense is not available for any drafts that were disposed of improperly, e.g., after
Coolidge’s request was received. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of
Commrs., 120 Ohio St. 3d 372, 2008-Ohio-6253, 899 N.E.2d 961. I find the Board has
not provided any evidence, or even asserted, that it properly disposed of any responsive
drafts that existed at the time of the Enquirer’s request.
{¶10} I recommend that the court deny the Board’s motion to dismiss the claim
for production of draft documents kept by the Board at the time of the request.
C. Scope of Requests
{¶11} The Board pleads that it was confused prior to litigation as to whether the
Enquirer had agreed to accept documents with all content other than headers redacted,
rather than agreeing only to redaction of specific content for which a valid public records
exemption was claimed. (Response at 4-5.) The Enquirer attests that it had accepted no
such limitation on its request. (Reply, Greiner Aff. at ¶ 6, 8-9.)
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{¶12} The Board stops short of claiming that the documentary response based on
this alleged misunderstanding renders the claim for production moot, and to the extent
that the Board appears to offer the misunderstanding as grounds for dismissal I
recommend that the court deny the motion.
D. Assertion of Improperly Ambiguous Request
{¶13} The Board states that Coolidge’s request for topical email involving
senders Jeff Alutto, “and/or” six other names; and recipients Jeff Alutto, “and/or” the
same six names,
is vague and ambiguous as to what is meant by sender and recipient. It is
unclear whether the request is for emails only between those individuals,
or for any emails sent by any one of those individuals, or for any emails
received by any one of those individuals. * * * To the extent that the emails
are not between the exact list of senders and recipients, the emails are out
of scope of the request and are not required to be produced.
(Response at 11-12.) However, a requester need only make a request such that the
public office can reasonably identify what public records are being requested. R.C.
149.43(B)(2). Perfection is not required in a public records request, “particularly where,
as here, it is evident that the public office was aware of the specific records requested.”
State ex rel. Morgan v. New Lexington, 112 Ohio St. 3d 33, 2006-Ohio-6365, 857 N.E.2d
1208, ¶ 37. Applying common grammar to the request, Coolidge gave the Board a list of
correspondents from among whom she sought email, on a specific subject, over a short
period of time. See State ex rel. Kesterson v. Kent State Univ., 156 Ohio St. 3d 22,
2018-Ohio-5110, 123 N.E.3d 895, ¶ 26. The Board’s alternate readings – that she might
be seeking only email with no “extraneous” correspondents, or only those where one of
the list was a solo sender or recipient – are not justified by the request’s wording,
context, or any other indication that Coolidge was not seeking all topical emails
involving those on the list.
{¶14} Further, if the Board had found this aspect of the request vague and
ambiguous, it was under a mandatory duty to offer Coolidge an opportunity to revise the
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request, after explaining to her how the Board organized and accessed its email
records. R.C. 149.43(B)(2). The Board did not advise Coolidge prior to litigation that it
found the request vague or ambiguous, or invite revision of the request, and later filed
records with the court that included additional correspondents, recognizing that these
were potentially responsive to the request. (Respondent’s Sept. 19, 2019 Motion for
Extension of Time to Provide Court Ordered Documents at 3.)
{¶15} I recommend the court deny the motion to dismiss on the grounds that any
of the records submitted under seal were not within the scope of the request.
E. Assertion of Attorney-Client Communication Privilege, Attorney
Work Product, and Trade Secret Exceptions
{¶16} The remainder of the Board’s response asserts public records exceptions
based on the attorney-client privilege, attorney work product, and trade secret
information. On review, the complaint neither concedes nor demonstrates that the
requested documents are subject to these exceptions. Therefore, to the extent the
Board intends to assert these as a motion to dismiss, I recommend that the court deny
the motion as to these defenses, and determine the claim on the merits.
Burdens of Proof
{¶17} In an action to enforce Ohio’s Public Records Act (PRA), the burden is on
the requester to prove an alleged violation. In mandamus enforcement actions,
[a]lthough the PRA is accorded liberal construction in favor of access to
public records, “the relator must still establish entitlement to the requested
extraordinary relief by clear and convincing evidence.”
State ex rel. Caster v. Columbus, 151 Ohio St. 3d 425, 428, 2016-Ohio-8394, 89 N.E.3d
598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by
clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153
¶ 27-30 (5th Dist.).
{¶18} However, when a public office asserts any exception to the release of
records under the Act, the burden of proving the exception rests on the public office.
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State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office, 153 Ohio St. 3d 63, 2017-
Ohio-8988, 101 N.E.3d 396, ¶ 15. Exceptions to disclosure must be strictly construed
against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab. & Corr.,
155 Ohio St. 3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. A custodian does not meet
this burden if it has not proven that the requested records fall squarely within the
exception. Id.; 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. Any doubt should be
resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St. 3d
168, 169, 637 N.E.2d 911 (1994).
Exceptions Abandoned Where Not Asserted
{¶19} The Board makes general assertions that the contents of the withheld
records were exempt entirely or in part as attorney-client privileged communication,
attorney work product, and/or trade secret information. The special master ordered the
Board to file a privilege log detailing the portions of each withheld record to which it
asserts each exception applies. To the extent the Board’s privilege log limits application
of an exception to specific pages, paragraphs, or information in the withheld records,
that exception is no longer asserted against disclosure of the remainder of the withheld
content. State ex rel. Toledo Blade Co. v. Toledo-Lucas County Port Auth., 121 Ohio
St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 19; State ex rel. Plain Dealer v. Ohio
Dept. of Ins., 80 Ohio St. 3d 513, 525, 687 N.E.2d 661 (1997).
Attorney-Client Privilege
{¶20} “The attorney-client privilege, which covers records of communications
between attorneys and their government clients pertaining to the attorneys’ legal advice,
is a state law prohibiting release of these records.” State ex rel. Toledo Blade Co. v.
Toledo-Lucas County Port Auth., 121 Ohio St. 3d 537, 2009-Ohio-1767, 905 N.E.2d
1221, ¶ 22. The party asserting the attorney-client privilege bears the burden of showing
the applicability of the privilege. State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St.3d
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292, 2016-Ohio-2974, ¶ 9; MA Equip. Leasing I, LLC v. Tilton, 10th Dist. Franklin Nos.
12AP-564 and 12AP-586, 2012-Ohio-4668, ¶ 20-22. To satisfy this burden, the
proponent must show that the communication meets all the following conditions:
“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,
824 N.E.2d 990, ¶ 21. A bare, general assertion that the privilege applies to
communications does not meet the proponent’s burden. Rather,
The claim of privilege must be made question-by-question and document-
by-document.
Factual showing needed to demonstrate that a communications [sic]
is privileged. Conclusory descriptions of documents in a privilege log are
insufficient to meet the producing party’s burden of establishing that the
document was an attorney-client communication. In re Search Warrant
Executed at Law Offices of Stephen Garea, 1999 U.S. App. LEXIS 3861,
1999 WL 137499, *1-*2 (6th Cir. March 5, 1999). The party asserting
privilege “must make a minimal showing that the communication involved
legal matters. This showing is not onerous and may be satisfied by as little
as a statement in the privilege log explaining the nature of the legal issue
for which advice was sought.” Id. That showing “must provide the
reviewing court with enough information for it to make a determination that
the document in question was, in fact, a confidential communication
involving legal advice.” 1999 U.S. App. LEXIS 3861, [WL] *2.
Williams v. Duke Energy Corp., S.D.Ohio No. 1:08-CV-00046, 2014 U.S. Dist. LEXIS
109835, *14-15 (Aug. 8, 2014). See Williamson v. Recovery Ltd. P’ship., S.D.Ohio
No. 2:06-CV-292, 2016 U.S. Dist. LEXIS 125640, *8-10 (Sept. 15, 2016) (proponent
made only conclusory statements, rather than an actual showing, that the attorney-client
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privilege applied to subpoenaed documents).2 A record is not exempt merely because it
is received from or sent to a public office’s legal counsel. Better Gov’t Bureau v.
McGraw (In re Allen), 106 F.3d 582, 604, (1997). Nor does respondent cite any support
for the proposition that non-legal documents, such as press releases, become privileged
communications merely because they are reviewed by, or copied to, an attorney.
{¶21} The Board summarizes its assertion of attorney-client privilege in this case
as follows:
The issue underlying this request deals with a very complicated lease
negotiation and real property acquisition by the Respondent.
Communication between attorneys and the parties related to this
negotiation are necessary to move the negotiation forward. While any
action taken by the public body must be performed in public, the
negotiation, including discussions with attorneys, at times, must be
conducted under the privilege. The fact that communications related to
legal services occurred between attorney and client, and on behalf of the
client to parties who share a common interest is enough to exempt the
documents from disclosure.
(Response at 7.) As discussed below, the Board fails to support this assertion with
adequate evidence.
Evidence That Communication Related to Legal Advice
{¶22} In order to elicit evidence regarding the Board’s claim of privilege, the
special master issued an order requiring the Board to provide the following detailed
information regarding each withheld communication:
b. For each separate record submitted under seal, respondent shall:
i. Identify the correspondence by sender, date, and time sent;
2 There is no material difference between Ohio’s attorney-client privilege and the federal attorney-
client privilege. Guy v. United Healthcare Corp., 154 F.R.D. 172, 177 (S.D.Ohio 1993), fn.3; Inhalation
Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., S.D.Ohio No. 2:07-CV-116, 2012 U.S. Dist. LEXIS
121830 (August 28, 2012).
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ii. Identify by paragraph, line, and word, as appropriate, only those
portions of the email or attachment that are alleged to meet the definition
of attorney-client privileged material;
iii. For each portion so identified, describe the nature of the legal issue for
which advice was being sought or provided, or how the communication
was otherwise incident to or related to any legal advice;
iv. Support application of the elements of the attorney-client privilege to
each identified portion, including by affidavit as appropriate.
(September 13, 2019 Order.) The Board’s resulting privilege log, submitted in final form
on January 27, 2020, contains general, conclusory descriptions of withheld emails and
attachments, and bare assertions that the content of each email was protected by
attorney-client privilege in its entirety. (Privilege Log – see columns titled Privileged
Material Location, and Privileged Explanation.) The Board filed supporting affidavits of
its counsel on the same date, that contained no greater detail. Neither the affidavits nor
the privilege log identifies with specificity what particular content in any withheld
document is a confidential attorney-client communication, or why. In most instances, the
Board states only that the entire content of the correspondence is a “communication”
involving counsel, or a “discussion” of the general topic of “negotiations,” a “press
release,” or “talking points,” “announcement of new lease amendment,” “joint
statement,” a “draft document describing the negotiations,” “negotiation matrix,” and
other publicity, strategic, and tactical, but not legal, matters. These documents do not
contain any detailed, specific explanation as to how each communication’s content is
related to legal advice. See Pietrangelo at ¶ 11-17. The special master additionally
reviewed the withheld documents in camera for any material that might self-evidently
meet the definition of attorney-client privileged material.
{¶23} In a separate order, the special master invited the Board to explain the
identity and role of each correspondent to the withheld communications, including:
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2. The nature of legal representation being provided at the time of the
subject correspondence by each person who respondent asserts was
giving or obtaining information subject to the attorney-client privilege
through the correspondence.
3. The formal basis of the attorney-client relationship for every
correspondent who respondent asserts was providing advice or gathering
information in the role of a legal counsel to respondent.
(March 25, 2020 Order at 1.) In a list filed on April 8, 2020, the Board provided the
following information regarding its outside legal counsel:
Nature of Legal Representation
Mr. Gabelman, and the law firm of Frost Brown Todd (“FBT”), were
engaged to act as outside legal counsel for the Board of County
Commissioners for Hamilton County. The particular emphasis of this
representation was for the negotiation of agreements pertaining to the
redevelopment of the riverfront, including the development of The Banks
project along the Ohio River. All correspondence and documentation
generated by Mr. Gabelman and/or the FBT attorneys represent attorney-
client privileged communications and/or attorney work product which are
the subject of specific request in this pending matter. Such request
pertains to communications and work product documentation regarding
the negotiation of numerous agreements regarding the development of
The Banks Project, including the negotiation of numerous agreements
relating to the development of a music venue, the acquisition of riverfront
property by Hamilton County, as well as lease negotiations between
Hamilton County and the Cincinnati Bengals. Such negotiations also
pertained to Hamilton County and Cincinnati Bengals development of a
funding and financing structure with respect to the acquisition of real
property on the Cincinnati riverfront.
Formal Basis for Attorney Client Privilege
Mr. Gabelman and the law firm of Frost Brown Todd, were retained as
outside legal counsel to assist the Hamilton County Board of County
Commissioners and Hamilton County Prosecuting Attorney's Office to
develop property on the riverfront known as The Banks, as well as
negotiate various agreements with the City of Cincinnati, the Cincinnati
Reds, the Cincinnati Bengals, US Bank Arena, the National Underground
Railroad Freedom Center, and various developers on The Banks.
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Hamilton County Board of County Commissioners entered into an
agreement for such legal counsel services in 1997.
(April 8, 2020 List at 1.) The first paragraph describes Mr. Gabelman’s role as a
negotiator of agreements for the Board, and makes a bare assertion that any and all
requested communications by Mr. Gabelman or his firm regarding those negotiations
are attorney-client privileged communications. The second paragraph states that Mr.
Gabelman and his firm were retained as legal counsel to assist the Board in property
development and to “negotiate various agreements.” The Board did not provide the
terms of Mr. Gabelman’s 1997 agreement for his legal counsel services. Neither
paragraph specifies any legal issue for which Mr. Gabelman provided or facilitated legal
advice through the withheld communications.
{¶24} The description of Assistant Prosecuting Attorney Roger Friedmann’s role
is functionally identical to Mr. Gabelman’s:
Nature of Legal Representation
Mr. Friedmann is an Assistant Prosecuting Attorney for the Hamilton
County Prosecutor's Office. Among his various roles, Mr. Friedmann is the
lead attorney for the Prosecutor's Office on negotiations relating to
property acquisition by Hamilton County, The Banks development and
lease negotiations with the Cincinnati Bengals regarding the lease for the
development and operation of Paul Brown Stadium, and property
acquisition related issues.
Formal Basis for Attorney Client Privilege
The Hamilton County Prosecuting Attorney is the statutory Legal Adviser
to the Hamilton County Board of County Commissioners.
(Id. at 2.) The description of Mr. Friedmann’s representation is as a negotiator, not a
provider of legal advice on any reasonably specified issue. The list of correspondents in
fact draws no meaningful distinction between the roles of these attorneys, and of their
clients - all described as involved in negotiating agreements on behalf of the Board.
{¶25} The affidavits of Messrs. Gabelman and Friedmann filed on January 27,
2020 do not identify any legal issues on which advice was sought or given in the
Case No. 2019-00789PQ -15- REPORT AND RECOMMENDATION
withheld communications, referring only to the affiants’ roles as negotiators. (e.g.,
Friedmann Aff. at ¶ 7, 11-19; Gabelman Aff. at ¶ 7, 9-16.) The bare statements of
counsel that they “believed” all their communications were privileged, confidential,3 and
not waived (Freidmann Aff. at ¶ 7-8, 11; Gabelman Aff. at ¶ 7-9) is not sufficient, and
only highlights the absence of evidence that any legal advice was sought or given in the
text of these communications on particular legal issues.
{¶26} The evidence shows only that the Board used its attorneys as negotiators,
and included or copied them on discussions of contractual terms and meeting
scheduling. That evidence, by itself, falls far short of proving that the substantive
content of the communications falls squarely under the attorney-client privilege. In
contrast, in State ex rel. Toledo Blade Co. v. Toledo-Lucas County Port Auth., 121 Ohio
St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221 the respondent contracted with an
attorney to identify and investigate the factual and legal issues concerning allegations
that its president had committed improper, possibly criminal acts. Id. at ¶ 4, 29.
Respondent submitted affidavits of the Port Authority Board Chairman and its attorney.
The Supreme Court was provided with the legal issues on which advice was provided,
and how that advice was evidenced in resulting documents:
Both the port authority and its outside counsel knew that the investigation
was replete with various legal issues and consequences that would be
better resolved by the port authority's employing its long-time attorney to
conduct the investigation and prepare the report. Legal issues included
interpretation of Hartung's employment contract, an analysis of ethics law
and criminal law, potential tort claims by Hartung and Teigland, and the
construction of a confidentiality provision in the settlement agreement
3 Counsel’s assertions that they “made and received these communications in confidence”
include no description of control exercised over recipient copies. One counsel admits using his personal
email account for some of the communications. Compare Toledo-Lucas County Port Auth. at ¶ 5
(numbered copies of report given to board members in sealed envelopes during executive sessions and
were later returned to the law firm. Members were informed that the report was confidential and could not
be shown to any third party). The Enquirer disputes the confidentiality of email shared with third parties,
including a public relations consultant, but not those limited to Board employees and counsel.
Case No. 2019-00789PQ -16- REPORT AND RECOMMENDATION
concerning a previous port authority investigation. Legal analysis related
to the facts in the investigation is integrated throughout the report.
(Id. at ¶ 29.)
{¶27} The pleadings and affidavits filed in this case by the Hamilton County
Board of Commissioners do not present comparable testimony or documentation
supporting attorney-client privilege. The special master recognizes that, hypothetically,
the text of a communication might not relate on its face to legal advice without additional
explanation and context. To that end, as noted above, the Board was invited to submit
specific support for its assertion of attorney-client privilege. In response, the Board
failed to provide any additional evidence that its attorneys actually rendered legal
advice, or that any specific communication reflected the attorneys’ “professional skills
and judgment.” Id. at ¶ 27, 31. “[I]f a communication between a lawyer and client would
facilitate the rendition of legal services or advice, the communication is privileged.” Id. at
¶ 27. However, almost all the correspondence in this case reflects only the participation
of legal counsel in policy, negotiation of terms, scheduling, or other business decisions
that do not directly involve their professional services. See Williams v. Duke Energy
Corp., S.D.Ohio No. 1:08-CV-00046, 2014 U.S. Dist. LEXIS 109835, *15-16
(Aug. 8, 2014).
Communications to a lawyer for business purposes are not privileged.
Documents prepared and emailed for review by both legal and nonlegal
employees are often held to be not privileged because the
communications were not made for the primary purpose of seeking legal
advice. North Carolina Elec. Membership Corp. v. Carolina Power & Light
Co., 110 F.R.D. 511, 514 (M.D. N.C. 1986). Documents whose “primary
purpose” was “business negotiations” rather than “legal advice” are not
privileged. United States v. Davis, 131 F.R.D. 391, 401 (S.D. N.Y. 1990).
Id. at *8 (see *41-88 for application to case documents including email). See Hinners v.
Huron, Ct. of Cl. 2018-00549PQ, 2018-Ohio-3652, ¶ 10 (“[T]he general statement that
an attorney was ‘utilized’ ‘to advise’ ‘on matters of real estate acquisition, negotiation
Case No. 2019-00789PQ -17- REPORT AND RECOMMENDATION
and development’ falls short of clear proof that the attorney was providing legal advice
in any particular correspondence related to those matters.”). Likewise, outlining
business matters such as whether a meeting is planned or has occurred does not
constitute attorney-client communication. McFarland v. West Congregation of Jehovah’s
Witnesses, Lorain, OH, Inc., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 70 (9th Dist.).
{¶28} I find that the Board’s assertions of attorney-client privilege are based
solely on conclusory descriptions and statements. Neither the affidavits nor the privilege
log meets the Board’s minimal burden to identify and explain the nature of any legal
issue upon which advice was sought or provided through a given communication.
Williams v. Duke Energy Corp. at *14-15.
Disclosure of Communication to Non-Essential Third Party
{¶29} Separately, the assertion of privilege has been waived for many of the
withheld communications. “[T]he 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).
Because a client’s voluntary disclosure of confidential communications is
inconsistent with an assertion of the privilege, voluntary disclosure of
privileged communications to a third party waives a claim of privilege with
regard to communications on the same subject matter. Hollingsworth v.
Time Warner Cable, 157 Ohio App. 3d 539, 2004-Ohio-3130, ¶ 65, 812
N.E.2d 976 (1st Dist.), citing Mid-Am. Nat’l Bank & Trust Co. v. Cincinnati
Ins. Co., 74 Ohio App. 3d 481, 599 N.E.2d 699 (6th Dist.1991), and United
States v. Skeddle, 989 F. Supp. 905, 908 (N.D.Ohio 1997). See also In re
Teleglobe Communications Corp. v. BCE Inc., 493 F.3d 345, 361 (3d
Cir.2007) (“Disclosing a communication to a third party unquestionably
waives the privilege.”).
MA Equip. Leasing I, LLC v. Tilton, 980 N.E.2d 1072, 2012-Ohio-4668, ¶ 20 (10th Dist.).
In addition to communications directly shared, disclosure to a third party waives the
claim of privilege with regard to all other communications on the same subject matter.
Case No. 2019-00789PQ -18- REPORT AND RECOMMENDATION
Hollingsworth v. Time Warner Cable, 157 Ohio App. 3d 539, 2004-Ohio-3130, 812
N.E.2d 976, ¶ 65. The ‘same subject matter’ standard is, however, applied narrowly. Id.
{¶30} In determining whether a person to whom a communication was disclosed
is a third party or not, the party asserting the privilege bears the burden of proof. MA
Equip. Leasing at ¶ 21-22. On review of the evidence submitted I find, first, that certain
correspondence included a communications and public relations consultant retained by
the Board, Anne C. Sesler (Correspondent List at 5), as a correspondent. The Board
provides no explanation as to how Ms. Sesler’s participation was essential to the
provision of legal advice. There is no evidence as to how her inclusion in any
communication of legal advice was necessary, as opposed to merely convenient. See
Foulk v. Upper Arlington, Ct. of Cl. No. 2017-00132PQ, 2017-Ohio-4249, ¶ 20-21, and
cases cited therein. I find that the attorney-client privilege either did not attach, or was
waived, for those communications in which Ms. Sesler was included as a party
correspondent.
{¶31} Next, certain withheld records (Bates Nos. 277-381) include as
correspondents one or more employees of an entirely separate, private entity, the
Cincinnati Bengals organization. The Board asserts that the attorney-client privilege
applies to these communications because they involved negotiation of real estate
matters on which the Board’s counsel were providing legal advice to the Board.
However, under the cases cited above, disclosure of information to a third party waives
the privilege, even assuming, arguendo, that the Board had shown its counsel provided
it with legal advice on the matter. Indeed, the concept of waiver assumes that there was
something to waive. The Board cites no authority to the contrary.
{¶32} Finally, internal communications from a client to an attorney, conveying
authority to act on the client’s behalf in entering into an agreement, are by their nature
not intended to be confidential and are not privileged.
The purpose of the privilege is to permit complete freedom of disclosure
by a client to his attorney without fear that any facts so disclosed will be
Case No. 2019-00789PQ -19- REPORT AND RECOMMENDATION
used against him. Where the communication is not intended to be
confidential, it is not within the privilege. Taylor v. Sheldon (1961), 172
Ohio St. 118 [15 Ohio Op. 2d 206]; Emley v. Selepchak (1945), 76 Ohio App.
257 [31 Ohio Op. 558]. By its very nature, a communication from a client to his
attorney conveying authority to the attorney to act on his behalf as his
agent in entering into an agreement with the opposing party, is a
communication which is intended to be communicated to the opposing
party. Because such a conversation is not intended to be confidential, it is
not privileged. See In re Martin (1943), 141 Ohio St. 87, at 104 [25 Ohio Op.
225].
Walsh v. Barcelona Associates, Inc., 16 Ohio App. 3d 470, 472, 476 N.E.2d 1090 (10th
Dist.1984). Accord Lutz v. Carter, 2nd Dist. Clark No. No. 2660, 1990 Ohio App. LEXIS
4342, *12 (Oct. 3, 1990); Cannell v. Rhodes, 31 Ohio App. 3d 183, 186, 509 N.E.2d 963
(8th Dist.1986). The privilege has been waived for such documents.
Common Interest
{¶33} The Board asserts that the privilege was not waived for correspondence
that included counsel and employees of the Cincinnati Bengals organization, because of
the “common interest” doctrine.
[T]he common interest doctrine operates as an exception to the general
rule that disclosure of privileged materials to a third party waives the
privilege. This exception typically arises when parties “‘are either
represented by the same attorney or are individually represented, but
have the same goal in litigation.’” William F. Shea, LLC v. Bonutti
Research, Inc., S.D.Ohio No. 2:10-CV-615, 2013 U.S. Dist. LEXIS 48819,
*5-6 (Apr. 4, 2013), quoting Cooey v. Strickland, 269 F.R.D. 643, 652
(S.D.Ohio 2010).
Condos. at Stonebridge Owners’ Assn. v. K&D Group, Inc., 8th Dist. Cuyahoga No.
100261, 2014-Ohio-503, ¶ 10-16.
Apparently, the so-called “common interest privilege” of the attorney-client
privilege is succinctly set forth in McCormick on Evidence (6 Ed.2006)
413-414, Section 91.1:
Another step beyond the joint client situation is the instance
where two or more clients, each represented by their own
Case No. 2019-00789PQ -20- REPORT AND RECOMMENDATION
lawyers, meet to discuss matters of common interest-
commonly called a joint defense agreement or pooled
information situation. Such communications among the
clients and their lawyers are within the privilege. Although it
originated in the context of criminal cases, the doctrine has
been applied in civil cases and to plaintiffs in litigation as well
as defendants. * * *
State ex rel. Bardwell v. Cordray, 181 Ohio App. 3d 661, 2009-Ohio-1265, 910 N.E.2d
504, ¶ 87 (10th Dist.).
To fall within the common interest exception, it must be shown that “(1) the
communications were made in the course of a joint defense effort; [and]
(2) the statements were designed to further the effort * * *.” Travelers Cas.
and Sur. Co. v. Excess Ins. Co. Ltd., 197 F.R.D. 601, 606 (S.D.Oh. 2000),
quoting In re Bevill, Bresler & Schulman Asset Management Corp., 805
F.2d 120, 126 (3d Cir.1986). The common interest exception should be
construed narrowly. Cigna Ins. Co. v. Cooper Tires and Rubber, Inc.,
N.D.Ohio No. 3:99CV7397, 2001 WL 640703, *2 (May 24,
2001). Therefore, the exception will only apply where the “disclosures are
made in the course of formulating a common legal strategy.” (Internal
quotations and citations omitted.) Id.
Buckeye Corrugated, Inc. v. Cincinnati Ins. Co., 9th Dist. Summit No. 26634, 2013-
Ohio-3508, ¶ 15.
{¶34} On the evidence submitted, I find that the Board’s and the Cincinnati
Bengals’ interests were not aligned in these negotiations. The two entities were not
jointly pursuing or defending litigation, were not represented by the same attorney, were
not formulating a common “legal strategy,” and in the event of dispute over the
agreements they entered might instead be opposing parties. The Board was involved in
an arm’s-length negotiation with an independent, private entity represented by its own
counsel to negotiate their respective costs and other consideration in entering
agreements and acquiring property. I find that the Board has provided no support for the
proposition that negotiating any relevant agreement constituted a “common interest” so
as to preclude waiver of the attorney-client privilege.
Case No. 2019-00789PQ -21- REPORT AND RECOMMENDATION
{¶35} I therefore find that the Board waived the attorney-client privilege with
respect to all communications and attachments sent to and received from Bengals’
counsel and/or employees in the course of their negotiations.
{¶36} On the basis of the evidence before the court, or lack thereof, regarding
identification of legal issues, confidentiality, and disclosure to third parties, I conclude
that the Board has not shown that the withheld communications fall squarely within the
common law attorney-client communication privilege,4
Attorney Work Product
{¶37} The Board separately asserts that the withheld material is excepted from
disclosure as common law attorney work product. The party seeking protection under
the work-product doctrine bears the burden of establishing that the doctrine applies. In
re Special Grand Jury Investigation, 2019-Ohio-4014, 145 N.E.3d 1206, ¶ 12 (10th
Dist.). The Supreme Court of Ohio has explained work product protection as follows:
The work-product doctrine emanates from Hickman v. Taylor
(1947), 329 U.S. 495, 511, 67 S. Ct. 385, 91 L. Ed. 451, in which the
Supreme Court of the United States recognized that “[p]roper preparation
of a client’s case demands that [the attorney] assemble information, sift
what he considers to be the relevant from the irrelevant facts, prepare his
legal theories and plan his strategy without undue and needless
interference. * * * This work is reflected, of course, in interviews,
statements, memoranda, correspondence, briefs, mental impressions,
personal beliefs, and countless other tangible and intangible ways - aptly
though roughly termed by the Circuit Court of Appeals in this case as the
‘Work product of the lawyer.’ Were such materials open to opposing
counsel on mere demand, much of what is now put down in writing would
remain unwritten. An attorney’s thoughts, heretofore inviolate, would not
be his own. Inefficiency, unfairness and sharp practices would inevitably
develop in the giving of legal advice and in the preparation of cases for
trial. The effect on the legal profession would be demoralizing. And the
interests of the clients and the cause of justice would be poorly served.”
Addressing these concerns, the work-product doctrine provides a
qualified privilege protecting the attorney’s mental processes in
4 With the few exceptions noted in the table of permitted exemptions, below.
Case No. 2019-00789PQ -22- REPORT AND RECOMMENDATION
preparation of litigation, establishing “a zone of privacy in which lawyers
can analyze and prepare their client’s case free from scrutiny or
interference by an adversary.” However, as the Supreme Court of the
United States has explained, “the doctrine is an intensely practical one,
grounded in the realities of litigation in our adversary system,” and the
privilege afforded by the work-product doctrine is not absolute.
Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp, 127 Ohio St. 3d 161,
2010-Ohio-4469, 937 N.E.2d 53, ¶ 54-55 (internal citations omitted). Thus, the two
elements of common law attorney work-product are: 1) the document must be a product
of the respondent’s attorney’s mental processes, and 2) have been made in anticipation
of litigation.
{¶38} On review of the pleadings, affidavits, privilege log, correspondent list, and
materials submitted under seal, I find that a number of the communications involving
Board attorneys do not appear to have been drafted by or in consultation with Board
counsel so as to reflect the attorney’s mental processes. But more importantly, and
dispositive as to all the withheld records, nowhere in its pleadings, affidavits, privilege
log, or correspondent list does the Board assert that any of the records were created in
anticipation of litigation. To determine whether a document was prepared “in anticipation
of litigation,” the court must evaluate “whether the document was created because of a
party’s subjective anticipation of litigation, as contrasted with an ordinary business
purpose.” (Citation omitted.) In re Special Grand Jury Investigation at ¶ 13. In the few
instances where one Board attorney communicated legal advice it was transactional in
nature, not in anticipation of litigation.
{¶39} Accordingly, I find that the Board has not met its burden to show that any of
the withheld records were subject to the common law attorney work product privilege.
Ohio Uniform Trade Secrets Act
{¶40} A public office’s own trade secret, in its possession, is a record the release
of which is prohibited by state or federal law. State ex rel. Luken v. Corp. for Findlay
Mkt. of Cincinnati, 135 Ohio St. 3d 416, 420, 2015-Ohio-1532, 988 N.E.2d 546, ¶ 17.
Case No. 2019-00789PQ -23- REPORT AND RECOMMENDATION
See State ex rel. Perrea v. Cincinnati Pub. Sch., 123 Ohio St.3d. 410, 2009-Ohio-4762,
916 N.E.2d 1049, ¶ 19. An in camera inspection is usually necessary to determine the
merits of a trade secret claim. State ex rel. Besser v. Ohio State Univ., 87 Ohio St. 3d
535, 541-542, 721 N.E.2d 1044 (2000) (“Besser I”). The Ohio Uniform Trade Secrets
Act defines “trade secret” as:
information, including the whole or any portion or phase of any scientific or
technical information, design, process, procedure, formula, pattern,
compilation, program, device, method, technique, or improvement, or any
business information or plans, financial information, or listing of names,
addresses, or telephone numbers, that satisfies both of the following:
(1) It derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its
disclosure or use.
(2) It is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
R.C. 1333.61(D).
{¶41} “An entity claiming trade secret status bears the burden to identify and
demonstrate that the material is included in categories of protected information under
the statute and additionally must take some active steps to maintain its secrecy.” Besser
II, 89 Ohio St. 3d 396, 400, 732 N.E.2d 373 (2000). To meet this burden, the entity must
provide more than conclusory statements in affidavits to show which, if any, information
is a “trade secret.” Id. at 400-404. Accord Harris v. Belvoir Energy, Inc., 8th Dist.
Cuyahoga No. 103460, 2017-Ohio-2851, ¶ 16; Arnos v. MedCorp, Inc., 6th Dist. Lucas
No. L-09-1248, 2010-Ohio-1883, ¶ 28. The following factors are used in trade secret
analysis:
(1) The extent to which the information is known outside the business;
(2) the extent to which it is known to those inside the business, i.e., by the
employees; (3) the precautions taken by the holder of the trade secret to
guard the secrecy of the information; (4) the savings effected and the
value to the holder in having the information as against competitors;
Case No. 2019-00789PQ -24- REPORT AND RECOMMENDATION
(5) the amount of effort or money expended in obtaining and developing
the information; and (6) the amount of time and expense it would take for
others to acquire and duplicate the information.
Besser II at 399-400. In support of its burden in this case, the Board asserts that,
[t]he trade secret information relates to a complicated lease negotiation
and potential real property acquisition. The information is not known
outside of the Board, except by those whom the Board is directly dealing
with in this negotiation. Only those at the Board who are involved in the
negotiation know about this information. And this dissemination to third
parties does not invalidate the trade secret nature of the information, as
the owner of the trade secret can determine with whom they want to share
the trade secret information. State, ex rel. Allright Parking of Cleveland,
Inc., v. Cleveland, 63 Ohio St. 3d 772, 775 (1992). The Board has taken
great steps to guard the secrecy of this information, including withholding
it from the Requester and the public at this time. The information, if made
public, would cause price increases and competitive disadvantages and
would result in a detrimental economic impact to the Board and Hamilton
County ratepayers as a whole. The information was obtained through
many months of negotiation and work and if disseminated widely would
threaten that work. Finally, it is not clear that others could duplicate the
work needed to obtain this information.
(Response at 10.) However, standing alone these are merely general, unquantified
assertions of the Besser factors.
{¶42} To elicit further evidence, the special master ordered the Board to file the
unredacted communications under seal, and state with specificity what parts the Board
can show are trade secret. In its privilege log, the Board claims that the following pages
of the withheld records contain its own trade secrets: 132-133, 135-136, 138-139, 304-
311, 335-342, 347-360, 364-371, and 375-381. The affidavits of Board counsel (April 8,
2020 Friedmann Aff. at ¶ 18-23; Gabelman Aff. at ¶ 18-23) assert generally that the
records contain information that meets the trade secret factors, but provide no specifics
as to how. Neither do the affidavits of Board counsel establish expertise in the areas of
finance and financial models, which are the only categories of information referenced in
the privilege log as “trade secret.” I find that the Board provides no more than
Case No. 2019-00789PQ -25- REPORT AND RECOMMENDATION
conclusory statements in affidavits to show which, if any, information is a “trade secret.”
Besser II at 400-404.
Application of Besser Factors
(1) The extent to which the information is known outside the business.
{¶43} The Board asserts only that “[t]he information is not known outside of the
Board, except by those whom the Board is directly dealing with in this negotiation.”
(Response at 10.) The Cincinnati Bengals organization and their counsel clearly have
direct knowledge of the information contained in Withheld Records p. 304-311, 335-342,
347-360, 364-371, and 375-381. Further, so much of the information as was disclosed
to the public as part of the final agreement or was voted on by the Board in an open
meeting (Friedmann Aff. at ¶ 14, 26; Gabelman Aff. at ¶ 12, 24) is known outside the
office and unequivocally became public record at that time.
(2) The extent to which it is known to those inside the business, i.e., by the
employees.
{¶44} The Board attests that “[o]nly those at the Board who are involved in the
negotiation know about this information.” (Response at 10.) The Board provides no
more specific evidence addressing access of other Board employees to the information.
However, the Enquirer does not challenge this representation. The court may therefore
accept the representation of the Board on this factor.
(3) The precautions taken by the holder of the trade secret to guard the
secrecy of the information.
{¶45} While trade secret is not waived by inclusion in an application or proposal,
State ex rel. Seballos v. School Emp. Retirement Sys., 70 Ohio St. 3d 667, 671, 640
N.E.2d 829 (1994), neither does a negotiating process enable blanket assertion of trade
secret. “A business or possessor of a potential trade secret must take some active steps
to maintain its secrecy in order to enjoy presumptive trade secret status.” State ex rel.
Plain Dealer v. Ohio Dept. of Insurance, 80 Ohio St. 3d 513, 525, 687 N.E.2d 661
(1997). “[T]he holder of a trade secret is protected against disclosure or unauthorized
Case No. 2019-00789PQ -26- REPORT AND RECOMMENDATION
use of the trade secrets by those to whom it has been confided on the condition that the
secret not be disclosed.” (Emphasis added.) R & R Plastics v. F.E. Myers Co., 92 Ohio
App.3d 789, 802, 637 N.E.2d 332 (6th Dist.1993). The Board took no discernable steps
to guard against disclosure of the withheld information by the Cincinnati Bengals
organization, and the Board does not point to any legal restriction on the Bengals
organization from disclosing any or all of the information they exchanged.5
{¶46} Likewise, the Board alleges no specific efforts to ensure that its own
members, employees, or consultants maintain the secrecy of the information. “There is
no presumption that any particular idea imparted to or acquired by an employee is a
trade secret unless the possessor takes active steps to maintain its secrecy.” Hoffman-
La Roche Inc. v. Yoder, 950 F. Supp. 1348, 1360 (S.D.Ohio 1997), citing Water
Management, Inc. v. Stayanchi, 15 Ohio St. 3d 83, 85-86, 472 N.E.2d 715 (1984). An
entity claiming trade secret protections must demonstrate that it undertook reasonable
security measures to protect information known to employees. Hoffman-La Roche at
1361. Such efforts may include written or oral confidentiality agreements, facial marking
indicating confidentiality, internal or external controls on physical access to information,
and policies for retrieval or collection of disseminated documents. Id. at 1361-1364.
There is no evidence that the Board undertook such efforts in this matter.
{¶47} Further, a party claiming trade secret protection must take reasonable
steps to prevent disclosure by other parties with access to the information. See Jedson
Eng., Inc. v. Spirit Constr. Servs., 720 F. Supp. 2d 904, 922 (S.D.Ohio 2010)
(subcontractor was not entitled to trade secret protection for drawings given to a general
contractor where there was no evidence the subcontractor took active steps to maintain
the secrecy of its drawings vis-à-vis third parties); R.C. Olmstead, Inc. v. CU Interface,
LLC, 606 F.3d 262, 273-74 (6th Cir.2010) (software developer did nothing to prevent
5
In any case, “an agreement of confidentiality, standing alone, cannot support a trade secret
claim.” State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St. 3d 513, 527, 687 N.E.2d 661 (1997).
Case No. 2019-00789PQ -27- REPORT AND RECOMMENDATION
customers from allowing third parties to view its software interface); In re Alternative
Energy Rider Contained in the Tariffs of Ohio Edison Co., 153 Ohio St. 3d 289, 2018-
Ohio-229, 106 N.E.3d 1, ¶ 40-43 (utility company took reasonable steps to maintain
secrecy of supplier and bid information where it entered into protective agreements with
suppliers and other parties with access to the information). “[A]n owner’s disclosure to
potential or actual customers, absent a confidential agreement or understanding, will
destroy any protection of that information as a trade secret.” R & R Plastics v. F.E.
Myers Co., 92 Ohio App. 3d 789, 802, 637 N.E.2d 332 (6th Dist.1993). In this case, the
Board provides no evidence that the entity with which it was negotiating agreements, or
its public relations consultant Ms. Sesler, agreed or understood that the information now
claimed as trade secret was to remain confidential.
{¶48} The Board’s bare assertion that it took unspecified “great steps to guard
the secrecy of this information, including withholding it from the Requester and the
public at this time” (Response at 10), is a conclusory statement with insufficient
evidentiary value. Under the circumstances, I find the Board has not shown that it has
taken any identified precautions to maintain secrecy of the information.
(4) The savings effected and the value to the holder in having the
information as against competitors.
{¶49} In In re Emily Opilo and the Morning Call v. Penn. Dept. of Comm. and
Econ. Dev., No. AP 2018-0145, 2018 PA O.O.R.D. LEXIS 432, *20-26, a state office
released part of its Amazon HQ2 proposal but asserted trade secret for the “incentive
proposal” portion. Id. at *20-23. The office claimed that disclosure would harm agency
“economic development initiatives to draw business to the Commonwealth by forcing
them to negotiate in public.” Id at *23. In rejecting the claim, the Pennsylvania Office of
Open Records found the assertions of harm speculative and conclusory, and that
“[m]ost importantly, the Department does not adequately address how other persons
can obtain economic value from the Incentive Proposal’s disclosure.” (Emphasis sic.) Id.
Case No. 2019-00789PQ -28- REPORT AND RECOMMENDATION
The Board here likewise fails to address how other persons would gain an economic
benefit from disclosure of the information it claims to be trade secret.
{¶50} In general, records that detail strategy, planning, bids and negotiations do
not automatically qualify as trade secrets. State ex rel. Plain Dealer v. Ohio Dept. of
Insurance, 80 Ohio St. 3d 513, 526, 687 N.E.2d 661 (1997). The Board makes no effort
to quantify any savings effected, or the value to the Board in having the information as
against future competitors. It attests only that
[t]he information, if made public, would cause price increases and
competitive disadvantages and would result in a detrimental economic
impact to the Board and Hamilton County ratepayers as a whole. The
information was obtained through many months of negotiation and work
and if disseminated widely would threaten that work.
(Id.) With respect to financial models, the Supreme Court found in Besser II, 89 Ohio
St.3d 396, 732 N.E.2d 373 (2000) that OSU’s business plan, staffing contract, profit/loss
analysis, acquisition goal summaries, working assumptions for operations, notes and
research on comparable hospitals, draft asset purchase agreement, and pro forma for
acquisition of a hospital were not proven to be trade secret. Id. at 399-406. The Court
rejected OSU’s argument that if it entered into future negotiations similar to the failed
transaction, opposing parties could use these bid details “to determine OSU’s valuation
process, negotiating style, and internal processes for making and receiving offers, and
that competitors can use this information even now to attack, undermine, and
circumvent OSU’s business strategies,” finding that OSU had provided no factual
evidence to support its conclusory statements and arguments. Id. at 401-402.
{¶51} Likewise, the Board provides no evidence to show that the financial
information it used in this negotiation will have any value in future negotiations. The
Board cannot affirm that a future administration will offer identical terms to a different
partner, even in the unlikely event that market conditions remain static. See In re
Alternative Energy Rider Contained in the Tariffs of Ohio Edison Co., 153 Ohio St.3d
Case No. 2019-00789PQ -29- REPORT AND RECOMMENDATION
289, 2018-Ohio-229, 106 N.E.3d 1, ¶ 34, 36 (considering changes in market conditions
when evaluating the continuing economic value of information). The Board has provided
no factual evidence that its financial information relevant to this negotiation was so
unique, compelling, or otherwise valuable that competitors would gain a cognizable
economic benefit from their disclosure in the immediate future. At the same time, these
negotiations were crafted for an ephemeral situation that the Board does not show will
recur. See Plain Dealer, supra. The circumstances of future property negotiations will be
different, and the Board has not shown that keeping this particular financial information
a secret will benefit the Board at a later date. Besser II at 401-403. See Buduson v.
Cleveland, Ct. of Cl. No. 2018-00300PQ, 2019-Ohio-963, ¶ 31-32. Instead of providing
clear explanation and evidence, the Board does no more than aver vaguely that if it isn’t
allowed to keep this correspondence secret, “bad things” will happen.
{¶52} Further, the deal the Board was negotiating has apparently concluded.
(Reply at 5, Exh. 2.) Information specific to a completed process generally does not
retain independent economic value under the Ohio Uniform Trade Secrets Act, unless
the entity claiming trade secret offers specific evidence that the information would still
be beneficial to competitors. See Besser II at 403; Plain Dealer, supra; In re Alternative
Energy Rider at ¶ 36. The Board has made no such showing.
{¶53} Therefore, the Board fails to demonstrate that the financial information in
these communications has any significant or persisting value as against the Board’s
competitors in future transactions.
(5) The amount of effort or money expended in obtaining and developing
the information.
{¶54} The Board makes no effort to quantify the “amount of effort or money
expended in obtaining and developing the information” involved here. The Board states
only that “[t]he information was obtained through many months of negotiation and work
and if disseminated widely would threaten that work.” (Response at 10.) This statement
Case No. 2019-00789PQ -30- REPORT AND RECOMMENDATION
is unquantified, vague, and conclusory. I find the Board has not shown that it expended
a significant amount of money or effort in developing the information at issue.
(6) The amount of time and expense it would take for others to acquire and
duplicate the information.
{¶55} The mere fact that obtaining information may take some effort does not
make the information a trade secret. Brakefire, Inc. v. Oberveck, 144 Ohio Misc. 2d 35,
2007-Ohio-6464, 878 N.E.2d 84, ¶ 33 (C.P.) The Board makes only the ambiguous
statement that “it is not clear that others could duplicate the work needed to obtain this
information.” (Emphasis added.) (Response at 10.) It makes no attempt to quantify this
assertion. Again, both the Board and future negotiating partners will rely on different,
updated information for future purchases. I find that the Board fails to adequately
demonstrate “the amount of time and expense it would take for others to acquire and
duplicate the information” that it lists as trade secret.
The Besser Factors Do Not Support a Finding of Trade Secret
{¶56} The Board relies on general and conclusory statements regarding the
economic value of keeping the bid information secret from the public rather than factual
evidence or expert testimony in support. The Board submitted no evidence of how often
it has been or reasonably expects to be presented with circumstances analogous to the
negotiation here, and there is no reason to believe that the conditions of future property
lease or acquisition would be identical. Review in camera fails to demonstrate that
future “competitors” would accomplish any significant savings of time or expense by
knowing the particular financial models and other information communicated under the
particular circumstances of this negotiation. Respondent has provided no persuasive
evidence of how any of the information “derives independent economic value, actual or
potential, from not being generally known.” There is no credible evidence that the
information withheld would benefit the Board in future transactions.
Case No. 2019-00789PQ -31- REPORT AND RECOMMENDATION
{¶57} The Board satisfies neither of the two mandatory requirements for trade
secret protection under the Ohio Uniform Trade Secrets Act: 1) by failing to identify
efforts to prevent disclosure by other parties, the Board fails to show that it took efforts
reasonable under the circumstances to maintain the secrecy of the information; (R.C.
1333.61(D)(2)) and, 2) by producing no evidence of the continuing value of the financial
and other information, the Board fails to show that the information derives independent
economic value (R.C. 1333.61(D)(1)). Thus, the information is not trade secret, and is
not exempt from disclosure under R.C. 149.43. Considering the evidence in light of the
Besser factors, I find that the Board has not met its burden to prove that any of the
claimed information fits squarely within the trade secret exception.
Records Containing Exemptions Must Be Redacted in a Manner That
Discloses Non-Exempt Contents
{¶58} In its January 27, 2020 privilege log, the Board claims that every line of
substantive text in the withheld records is privileged (compare January 27, 2020
Privilege Log, column titled Privileged Material Location, with the sealed records), rather
than conceding that documents can be redacted to obscure only privileged portions.
The Board asserts that any communication between an attorney and their client can be
withheld in its entirety, and need not be redacted at all. (Response at 6.) This assertion
is contrary to statutory and case law.
{¶59} The Public Records Act provides that only the information within a record
that is exempt may be withheld:
If a public record contains information that is exempt from the duty to
permit public inspection or to copy the public record, the public office or
the person responsible for the public record shall make available all of the
information within the public record that is not exempt.
R.C. 149.43(B)(1). Where specific information in a questionnaire, form or other record is
exempt, only the protected information may be redacted. See Cuyahoga Cty. Bd. of
Health v. Lipson O’Shea Legal Group, 2013-Ohio-5736, 6 N.E.3d 631, ¶ 5, 29-31 (8th
Case No. 2019-00789PQ -32- REPORT AND RECOMMENDATION
Dist.), affirmed by Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group, 145
Ohio St. 3d 446, 2016-Ohio-556, 50 N.E.3d 499, ¶ 4, 12; State ex rel. Beacon Journal
Publ. Co. v. Bond, 98 Ohio St. 3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 13. When
asserting attorney-client privilege, a public office must redact only the exempt portions
of the record, and make available all of the information within the public record that is
not exempt.6 State ex rel. Anderson v. Vermilion, 134 Ohio St. 3d 120, 2012-Ohio-5320,
980 N.E.2d 975, ¶ 19 (affirming the “explicit duty” to do so in R.C. 149.43(B)(1)).
Portions of an attorney communication that are nonexempt, such as the general title of
the matter being handled, underlying facts of the case, dates of service, financial
arrangements, and the like must be disclosed. Id. at ¶ 15; Plogger v. Myers, 2017-Ohio-
8229, 100 N.E.3d 104, ¶ 9 (8th Dist.). The Supreme Court has consistently required an
in camera inspection of records before determining whether they are excepted from
disclosure, and “[i]f the court finds that these records contain excepted information, this
information must be redacted and any remaining information must be released.”
(Emphasis added.) State ex rel. Lanham v. DeWine, 135 Ohio St. 3d 191, 2013-Ohio-
199, 985 N.E.2d 467, ¶ 22 (attorney-client privilege), citing State ex rel. Natl.
Broadcasting Co. v. Cleveland, 38 Ohio St. 3d 79, 526 N.E.2d 786 (1988), paragraph
four of the syllabus. Thus, the Board should be ordered consistent with the directions in
the table below to disclose all non-privileged portions of the withheld records.
Non-Records
“Records” are defined in R.C. 149.011(G) as including:
any document, device, or item, regardless of physical form or
characteristic, * * * created or received by or coming under the
jurisdiction of any public office of the state or its political subdivisions,
which serves to document the organization, functions, policies,
decisions, procedures, operations, or other activities of the office.
6 Unless the exempt portion is “inextricably intertwined” with the remaining exempt material.
Although this exception to the rule is not alleged by the Board, see Narciso v. Powell Police Dept., Ct. of
Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 8-13 for discussion of redaction vs. “inextricably intertwined.”
Case No. 2019-00789PQ -33- REPORT AND RECOMMENDATION
The definition of “record” does not include every piece of paper on which a public
officer writes something, or every document received by a public office. State ex rel.
Cincinnati Enquirer v. Ronan, 127 Ohio St. 3d 236, 2010-Ohio-5680, 938 N.E.2d 347,
¶ 13. With regard to personal information contained in a public record,
disclosure of information about private citizens is not required when
such information “‘reveals little or nothing about an agency’s own
conduct’” and “would do nothing to further the purposes of the Act.” 88
Ohio St. 3d at 368 and 369, 725 N.E.2d 1144, quoting United States
Dept. of Justice v. Reporters Commt. for Freedom of the Press (1989),
489 U.S. 749, 780, 109 S. Ct. 1468, 103 L. Ed. 2d 774.
State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St. 3d 146, 2002-Ohio-
7117, 781 N.E.2d 180, ¶ 9-13. For example, employee home addresses that do not
serve to document the functions, policies, decisions, procedures, operations, or other
activities of the office are not a “record” of the office. State ex rel. Dispatch Printing Co.
v. Johnson, 106 Ohio St. 3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 20-41.
{¶60} The Board argues that the personal email address of counsel is a non-
record. (Friedmann Aff. at ¶ 9-10.) The Enquirer does not dispute this assertion, and
there is no evidence that counsel’s personal email address was used for other than
administrative convenience. See Dispatch at ¶ 25-26. I find that counsel’s personal
email address may be redacted from the withheld records.
Permitted Exemptions in The Withheld Records
{¶61} The Board did not meet its burden to establish that any withheld record
contained attorney work product, and the table therefore makes no reference to that
exemption.
Bates Description of Parties on Email Attorney-Client Privilege Trade Secret Non-Record
No. Document correspondence
1-2 Email re wording Thomas Gabelman, No: 1) No showing that No
of talking points re Anne Sesler, Jeff wordsmithing of publicity
lease amendment Aluotto, Theresa Giglio, talking points regarding lease
Roger Friedmann amendments is related to legal
Case No. 2019-00789PQ -34- REPORT AND RECOMMENDATION
advice. 2) Ms. Sesler negates
confidentiality as an
unnecessary third-party public-
relations consultant.
3-4 Poster with key Jeff Aluotto, Thomas No: 1) No showing that draft No
talking points re Gabelman, Roger publicity talking points
lease amendment Friedman, Anne Sesler, regarding lease amendments
Theresa Giglio are related to legal advice. 2)
Ms. Sesler negates
confidentiality as an
unnecessary third-party public-
relations consultant.
5-7 Email circulating Thomas Gabelman, No: 1) cover emails circulating No
proposed joint Todd Portune, Denise and inviting comment on a
press statement Driehaus, Chris Monzel, draft joint press statement with
reflecting Jeff Aluotto, Rodger Bengals organization are not
additional input Friedmann, Anne Sesler, privileged communications. 2)
from Bengals Patrick Woodside no evidence provided that
content is related to Board
legal advice. 3) Ms. Sesler
negates confidentiality as an
unnecessary third party public
relations consultant.
8-9 Attachment- No: 1) a draft joint press No
Proposed Joint statement with Bengals
press statement organization is not a privileged
reflecting input communication. 2) no evidence
from Bengals provided that content is related
to Board legal advice. 3) Ms.
Sesler negates confidentiality
as an unnecessary third party
to emails to which the draft is
attached.
10-11 Email circulating Thomas Gabelman, No: 1) cover emails circulating No
proposed joint Todd Portune, Denise and inviting comment on a
press statement Driehaus, Chris Monzel, draft joint press statement with
reflecting Jeff Aluotto, Rodger Bengals organization are not
additional input Friedmann, Anne Sesler, privileged communications. 2)
from Bengals Patrick Woodside no evidence provided that
content is related to Board
legal advice. 3) Ms. Sesler
negates confidentiality as an
unnecessary third party public
relations consultant.
12-13 Proposed Joint No: 1) a draft joint press No
press statement statement with Bengals
reflecting input organization is not a privileged
from Bengals communication. 2) no evidence
provided that content is related
to Board legal advice. 3) Ms.
Sesler negates confidentiality
as an unnecessary third party
to emails to which the draft is
attached.
14-15 Email circulating Thomas Gabelman, No: 1) cover emails circulating No
proposed joint Todd Portune, Denise and inviting comment on a
press statement Driehaus, Chris Monzel, draft joint press statement with
Case No. 2019-00789PQ -35- REPORT AND RECOMMENDATION
reflecting Jeff Aluotto, Rodger Bengals organization are not
additional input Friedmann, Anne Sesler, privileged communications. 2)
from Bengals Patrick Woodside no evidence provided that
content is related to Board
legal advice. 3) Ms. Sesler
negates confidentiality as an
unnecessary third party public
relations consultant.
16-19 Proposed Joint No: 1) drafts of joint press No
press statement statement with Bengals
reflecting input organization are not privileged
from Bengals communications. 2) no
evidence provided that content
is related to Board legal
advice. 3) Ms. Sesler negates
confidentiality as an
unnecessary third party to
emails to which the drafts are
attached.
20-22 Forwarded No: 1) first cover email No Yes:
message from (circulating attached email) is Personal
Rodger not privileged. 2) remaining email address
Friedmann, emails between Board counsel of atty.
communications and Bengals counsel and staff Friedmann is
between counsel regarding draft joint press non-record
for the Bengals statement are not privileged that may be
and counsel for and cannot be made so by redacted
Hamilton County communicating them between
Board and its counsel. 3) no
evidence provided that content
is related to Board legal
advice.
23-24 Attachment from No: 1) a draft joint press No
forwarded statement with Bengals
message organization is not a privileged
communication. 2) no evidence
provided that content is related
to Board legal advice. 3)
Content that is not privileged
cannot be made so by
communicating it between
attorney and client.
25-26 Email circulating Thomas Gabelman, No: 1) Cover emails No
proposed outline Todd Portune, Denise circulating and inviting
and memorandum Driehaus, Chris Monzel, comment on attachments are
of understanding Jeff Aluotto, Rodger not privileged communications.
for the terms of an Friedmann, Margaret
agreement Grossman
between the
Bengals and
Hamilton county
27-30 Draft outline of No: 1) draft structural terms of No: 1) No
proposed public- partnership is not privileged evidence
private partnership communication. 2) no evidence provided that
structure attached provided that content is related any content
to p. 25-26 email to Board legal advice. 3) draft derives
simply reflects negotiation independent
position. economic
value from
not being
generally
Case No. 2019-00789PQ -36- REPORT AND RECOMMENDATION
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
31-32 Draft MOU No: 1) draft structural terms of No: 1) No
attached to p. 25- partnership is not privileged evidence
26 email communication. 2) no evidence provided that
provided that content is related any content
to Board legal advice. 3) draft derives
simply reflects negotiation independent
position. economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
33-34 Attorney seeking Thomas Gabelman, No: 1) cover email circulating No
input from county Anne Sesler, Jeff and inviting comment on a
consultant about Aluotto, Rodger draft joint press statement with
an announcement Friedman Bengals organization is not
privileged communication. 2)
no evidence provided that
content is related to Board
legal advice. 3) Ms. Sesler
negates confidentiality as an
unnecessary third party public
relations consultant.
35-36 Attachment to p. No: 1) a draft joint press No: 1) No
33-34 email statement with Bengals evidence
organization is not a privileged provided that
communication. 2) no evidence any content
provided that content is related derives
to Board legal advice. 3) Ms. independent
Sesler negates confidentiality economic
as an unnecessary third party value from
to emails to which the draft is not being
attached. generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
37-38 Email in re: an Thomas Gabelman, Jeff No: 1) cover email circulating No
announcement Aluotto, Rodger and inviting comment on a
Friedmann draft joint press statement with
Bengals organization is not
privileged communication. 2)
no evidence provided that
Case No. 2019-00789PQ -37- REPORT AND RECOMMENDATION
content is related to Board
legal advice.
39-40 Attachment to p. No: 1) a draft joint press No: 1) No
37-38 email statement with Bengals evidence
organization is not a privileged provided that
communication. 2) no evidence any content
provided that content is related derives
to Board legal advice. independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
41-42 Email circulating a Thomas Gabelman, Jeff No: 1) Cover emails No
draft negotiation Aluotto, Rodger circulating and inviting
matrix Friedmann, Patrick comment on attachments are
Woodside not privileged communications.
43-50 Attachment to p. No: 1) draft structural terms of No: 1) No
41-42 email. "Draft partnership is not privileged evidence
document communication. 2) no evidence provided that
describing the provided that content is related any content
negotiation to Board legal advice. derives
between Hamilton independent
County and economic
Bengals" value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
51 Email circulating a Thomas Gabelman, No: 1) Cover email circulating No
draft Rodger Friedmann, and inviting comment on
Memorandum of Patrick Woodside, Jeff attachment is not privileged
Understanding Aluotto communication.
52-53 Attachment to p. Draft MOU No: 1) draft structural terms of No: 1) No
51 email partnership is not privileged evidence
communication. 2) no evidence provided that
provided that content is related any content
to Board legal advice. 3) draft derives
simply reflects negotiation independent
position. economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
Case No. 2019-00789PQ -38- REPORT AND RECOMMENDATION
concluded in
final
agreement.
54-58 Attachment to p. Draft outline of proposed No: 1) draft structural terms of No: 1) No
51 email public-private partnership is not privileged evidence
partnership structure communication. 2) no evidence provided that
provided that content is related any content
to Board legal advice. 3) draft derives
simply reflects negotiation independent
position. economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
59-60 Circulating talking Thomas Gabelman, Jeff No: 1) cover email circulating No
point in re County Aluotto, Rodger and inviting comment on a
Bengals Friedmann draft joint press statement with
Announcement Bengals organization is not
privileged communication. 2)
no evidence provided that
content is related to Board
legal advice.
61-62 Attachment to p. No: 1) a draft joint press No
59-60 email statement with Bengals
organization is not a privileged
communication. 2) no evidence
provided that content is related
to Board legal advice.
63-64 Circulating draft Thomas Gabelman, Jeff No: 1) Cover email circulating No
negotiation matrix Aluotto, Rodger attachment is not privileged
Friedmann, Patrick communication.
Woodside
65-72 Attachment to p. No: 1) draft structural terms of No: 1) No
63-64 email partnership is not privileged evidence
communication. 2) no evidence provided that
provided that content is related any content
to Board legal advice. derives
independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
73-74 Circulating draft Thomas Gabelman, Jeff No: 1) Cover email circulating No
outline Aluotto, Rodger attachment is not privileged
Friedmann, Patrick communication.
Woodside
Case No. 2019-00789PQ -39- REPORT AND RECOMMENDATION
75-82 Attachment to p. No: 1) draft structural terms of No: 1) No
73-74 email partnership is not privileged evidence
communication. 2) no evidence provided that
provided that content is related any content
to Board legal advice. derives
independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
83 Negotiation points Jeff Aluotto, Roger No: 1) Discussion of purely No: 1) No
discussion with Friedmann, and Thomas business terms is not evidence
counsel in Gabelman privileged communication. 2) provided that
11/12/18 email no evidence provided that any content
content is related to Board derives
legal advice. independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
83-86 Forwarded No: 1) email and attached No: 1) No
message from draft between Board counsel evidence
Bengals counsel and third-party Bengals provided that
counsel and staff regarding any content
budget is not privileged and derives
cannot be made so by independent
communicating it between economic
Board and its counsel. value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
87 Forwarding draft Jeff Aluotto, Roger No: 1) Discussion of purely No
document to other Friedmann, and Joe business terms is not
county employees Feldkamp privileged communication. 2)
no evidence provided that
content is related to Board
legal advice.
87-88 Forwarded No: 1) email and attached No
Case No. 2019-00789PQ -40- REPORT AND RECOMMENDATION
message from draft between Board counsel
Bengals counsel and third-party Bengals
counsel and staff regarding
lease is not privileged and
cannot be made so by
communicating it between
Board and its counsel.
89-96 Document No: 1) draft structural terms of No: 1) No
attached to partnership is not privileged evidence
forwarded communication. 2) no evidence provided that
message provided that content is related any content
to Board legal advice. derives
independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
97-98 Forwarding draft Thomas Gabelman, Jeff No: 1) Cover email circulating No
outline for review Aluotto, Rodger attachment is not privileged
by clients Friedmann, Patrick communication.
Woodside
99-106 Attachment to p. No: 1) draft structural terms of No: 1) No
97-98 email partnership is not privileged evidence
communication. 2) no evidence provided that
provided that content is related any content
to Board legal advice. derives
independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
107 Forwarding draft Thomas Gabelman, Jeff No: 1) Cover email circulating No
outline for review Aluotto, Rodger attachment is not privileged
by clients Friedmann, Patrick communication.
Woodside
108- Attachment to p. No: 1) draft structural terms of No: 1) No
115 107 email partnership is not privileged evidence
communication. 2) no evidence provided that
provided that content is related any content
to Board legal advice. derives
independent
economic
value from
not being
generally
Case No. 2019-00789PQ -41- REPORT AND RECOMMENDATION
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
116 Discussing Thomas Gabelman, Jeff No: 1) Discussion of purely No
negotiation points Aluotto, Rodger business terms is not
Friedmann, Patrick privileged communication. 2)
Woodside no evidence provided that
content is related to Board
legal advice.
116- Forwarded No: 1) email and attached No
118 messages from draft between Board counsel
Bengals counsel and third-party Bengals
and between counsel and staff regarding
counsel for lease is not privileged and
Hamilton County cannot be made so by
and counsel for communicating it between
the Bengals Board and its counsel.
119- Attachment to p. No: 1) draft structural terms of No: 1) No
125 116-118 emails partnership is not privileged evidence
communication. 2) no evidence provided that
provided that content is related any content
to Board legal advice. 3) derives
attachment to email involving independent
Bengals counsel and staff is economic
not privileged and cannot be value from
made so by communicating it not being
between Board and its generally
counsel. known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
126 Message Denise Driehaus, Jeff No: 1) This is not a No
forwarding a Aluotto communication between
message from attorney and client, there is no
another Hamilton attorney in this communication.
county employee 2) no evidence provided that
content is related to Board
legal advice.
126 Forwarded No: 1) This is not a No
message between communication between
two Hamilton attorney and client, there is no
County Employees attorney in this communication.
2) no evidence provided that
content is related to Board
legal advice.
126- Forwarded No: 1) Discussion between No: 1) No
129 message between Board member and county evidence
Hamilton County employee of purely business provided that
employees and terms is not privileged any content
counsel in re: communication. 2) no evidence derives
drafting provided that content is related independent
documents to Board legal advice. 3) economic
Case No. 2019-00789PQ -42- REPORT AND RECOMMENDATION
counsel is only cc:d. value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
129- Forwarded No: 1) Cover email circulating No
130 message between attachment is not privileged
Hamilton County communication. 2) Notice
employees and regarding meeting is not
counsel in re: privileged communication.
drafting
documents
131 Email asking Jeff Aluotto, Thomas No: 1) Request to forward
attorney to forward Gabelman email is not privileged
another email to a communication. 2) no evidence
Hamilton county provided that content is related
employee to Board legal advice.
131- Email about Thomas Gabelman, Jeff No: 1) Discussion of purely No: 1) No
132 financial aspects Aluotto business terms is not evidence
of the deal privileged communication. 2) provided that
no evidence provided that any content
content is related to Board derives
legal advice. independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
132- Email between No: 1) Discussion of purely No: 1) No
133 Hamilton County business terms is not evidence
Attorneys privileged communication. 2) provided that
no evidence provided that any content
content is related to Board derives
legal advice. independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
134- Email about Jeff Aluotto, Thomas No: 1) Discussion of purely No: 1) No
136 financial aspects Gabelman, Roger business terms is not evidence
Case No. 2019-00789PQ -43- REPORT AND RECOMMENDATION
of the deal Friedmann, Patrick privileged communication. 2) provided that
Woodside no evidence provided that any content
content is related to Board derives
legal advice. independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
137- Discussion of Jeff Aluotto, Thomas No: 1) Discussion of purely No: 1) No
139 financial aspects Gabelman, Roger business terms is not evidence
of the deal Friedmann, Patrick privileged communication. 2) provided that
Woodside no evidence provided that any content
content is related to Board derives
legal advice. independent
economic
value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
140 Discussion about Jeff Aluotto, Joe No: 1) Discussion between No: 1) No
negotiation Feldkamp, Roger Board member and county evidence
between two Friedmann, Lisa Doerger employee of purely business provided that
Hamilton County terms is not privileged any content
Employees communication. 2) no evidence derives
provided that content is related independent
to Board legal advice. 3) economic
counsel is only cc:d. value from
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
140- Forwarded email No: 1) Discussion between No: 1) No
142 from Joe Board member and county evidence
Feldcamp to Jeff employee of purely business provided that
Aluotto terms is not privileged any content
communication. 2) no evidence derives
provided that content is related independent
to Board legal advice. 3) economic
counsel is only cc:d. value from
not being
Case No. 2019-00789PQ -44- REPORT AND RECOMMENDATION
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
142 Forwarded email No: 1) Cover email circulating No: 1) No Yes:
between Hamilton attachment is not privileged evidence Personal
County Employees communication. provided that email address
and counsel any content of atty.
derives Friedmann is
independent non-record
economic that may be
value from redacted
not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
143- Continuation of No: 1) First sentence No: 1) No
146 that email regarding meeting is not evidence
privileged communication. 2) provided that
remainder discussing purely any content
business terms is not derives
privileged communication. 2) independent
no evidence provided that economic
content is related to Board value from
legal advice. not being
generally
known. 2)
Any benefit of
confidentiality
expired when
negotiations
concluded in
final
agreement.
147 Confirmation of a Jeff Aluotto, Roger No: 1) All three emails No Yes:
meeting place Friedmann concern scheduling of meeting, Personal
which is not privileged email address
communication. of atty.
Friedmann is
non-record
that may be
redacted
148- Continuation of No: 1) Discussion of purely No
151 that email business terms is not
privileged communication. 2)
no evidence provided that
content is related to Board
legal advice.
152- Negotiation points Joe Feldcamp, Jeff No: 1) Discussion between No
155 Aluotto, Roger Board member and county
Case No. 2019-00789PQ -45- REPORT AND RECOMMENDATION
Friedmann, Lisa Doerger employee of purely business
terms is not privileged
communication. 2) no evidence
provided that content is related
to Board legal advice. 3)
counsel is only cc:d on
Feldkamp email.
156- Attachments to No: 1) draft structural terms of No
165 email, draft partnership is not privileged
negotiation matrix communication. 2) no evidence
provided that content is related
to Board legal advice.
166 Email thread about Jeff Aluotto, Roger Yes: Discussion with Board No Yes:
lease negotiations Friedmann, Thomas attorney of legal effect of Personal
Gabelman proposed terms. Only the email address
message text is privileged of atty.
communication, and not the Friedmann is
associated header, salutation, non-record
signature block, and other that may be
metadata. redacted
167- Forward of Jeff Aluotto, Roger No: 1) Discussion of purely No
169 business proposal Friedmann, Thomas business terms is not
summary Gabelman privileged communication. 2)
no evidence provided that
content is related to Board
legal advice.
170- Email thread about Jeff Aluotto, Thomas No: 1) Discussion of purely No
173 lease negotiations Gabelman, Roger business terms is not
Friedmann, Joe privileged communication. 2)
Feldcamp, Lisa Doerger, no evidence provided that
John Burggen content is related to Board
legal advice.
174- Attachments to No: 1) draft structural terms of No
184 email, draft partnership is not privileged
negotiation matrix communication. 2) no evidence
provided that content is related
to Board legal advice.
185- Email thread about Jeff Aluotto, Thomas Yes: Discussion with Board No
186 effect of lease Gabelman, Roger attorney of legal effect of
terms Friedmann, Patrick proposed terms. Only the
Woodside message text is privileged
communication, and not the
associated header, salutation,
signature block, and other
metadata.
186- Email forwarding Jeff Aluotto, Thomas No: 1) Discussion of purely No
189 proposed revisions Gabelman, Roger business terms is not
Friedmann, Patrick privileged communication. 2)
Woodside no evidence provided that
content is related to Board
legal advice.
190- Email thread about Jeff Aluotto, Roger No: 1) Discussion of purely No
191 hiring a consultant Friedmann, Thomas business terms is not
Gabelman privileged communication. 2)
no evidence provided that
content is related to Board
legal advice.
192- Email thread about Jeff Aluotto, Thomas Yes, in part: First email is No
195 lease negotiations Gabelman, Roger commissioner inquiry to Board
Friedmann, Patrick attorney of legal effect of
Case No. 2019-00789PQ -46- REPORT AND RECOMMENDATION
Woodside proposed term. Only the
message text is privileged
communication, and not the
associated header, salutation,
signature block, and other
metadata. No: 2) Following
the first email, discussion of
purely business terms is not
privileged communication. 3)
no evidence provided that
content is related to Board
legal advice.
196- Email about lease Thomas Gabelman, Jeff No: 1) Discussion of purely No
198 negotiations Aluotto, Roger business terms is not
Friedmann, Patrick privileged communication. 2)
Woodside no evidence provided that
content is related to Board
legal advice.
199- Attachments to No: 1) draft structural terms of No
202 email, draft partnership is not privileged
negotiation matrix communication. 2) no evidence
provided that content is related
to Board legal advice.
203- Email about lease Thomas Gabelman, Jeff No: 1) Discussion of purely No
205 negotiations Aluotto, Roger business terms is not
Friedmann, Patrick privileged communication. 2)
Woodside, Theresa no evidence provided that
Giglio content is related to Board
legal advice.
206- Attachments to No: 1) draft structural terms of No
216 email, draft partnership is not privileged
negotiation matrix communication. 2) no evidence
provided that content is related
to Board legal advice.
217- Email about lease Thomas Gabelman, Jeff No: 1) Cover email forwarding No
218 negotiations Aluotto, Roger business proposal is not
Friedmann, Patrick privileged communication.
Woodside
219- Attachments to No: 1) draft structural terms of No
229 email, draft partnership is not privileged
negotiation matrix communication. 2) no evidence
provided that content is related
to Board legal advice.
230 Request for a Thomas Gabelman, Jeff No: 1) request for meeting is No
phone call Aluotto, Roger not privileged communication.
Friedmann, Patrick
Woodside
230- Email about Thomas Gabelman, Jeff No: 1) Cover email forwarding No
231 negotiation Aluotto, Roger business proposal is not
Friedmann, Patrick privileged communication.
Woodside, Robert
Mecklenborg
232- Attachment to No: 1) introductory No
245 email, draft lease communication from Bengals
is not a privileged
communication. 2) Bengals
response to draft structural
terms of partnership is not
privileged communication. 3)
no evidence provided that
Case No. 2019-00789PQ -47- REPORT AND RECOMMENDATION
content is related to Board
legal advice.
246- Email about Thomas Gabelman, Jeff No: 1) Cover email forwarding No
247 negotiation Aluotto, Roger business proposal is not
Friedmann, Patrick privileged communication.
Woodside, Robert
Mecklenborg
248- Attachment to No: 1) introductory No
260 email, draft lease communication from Bengals
is not a privileged
communication. 2) Bengals
response to draft structural
terms of partnership is not
privileged communication. 3)
no evidence provided that
content is related to Board
legal advice.
261 Email forwarding Jeff Aluotto, Todd No: 1) Cover email forwarding No
message from Portune, Chris Monzel, other email is not privileged
Bengals counsel Denise Driehaus, communication. 2) forwarded
Victoria Parks, Lanita email from Bengals staff not
Hanekamp, Alex Linser, privileged communication.
John Bruggen, Judy
Boyko, Roger
Friedmann
262- Email chain about Theresa Giglio, Thomas No: 1) Cover email forwarding No
263 letter to Bengals Gabelman, Jeff Aluotto, letter to Bengals is not
Roger Friedmann privileged communication. 2)
no evidence provided that
content is related to Board
legal advice.
264- Attached letter to No: 1) signed, apparently No
266 Bengals since-delivered letter to
Bengals.
267- Email about letter Thomas Gabelman, Jeff No: 1) Cover email forwarding No
268 to Bengals Aluotto, Theresa Giglio, draft letter to Bengals and
Roger Friedmann giving instructions for delivery
is not privileged
communication. 2) no evidence
provided that content is related
to Board legal advice.
269- Attached letter to No: 1) no evidence provided No
271 Bengals that content is related to Board
legal advice.
272- Email about letter Thomas Gabelman, Jeff No: 1) Cover email forwarding No
273 to Bengals Aluotto, Roger draft letter to Bengals and
Friedmann, Jennifer discussing execution and
Goins copies is not privileged
communication. 2) no evidence
provided that content is related
to Board legal advice.
274- Attached draft No: 1) no evidence provided No
276 letter to Bengals that content is related to Board
legal advice.
277 Email to Bengals From: Thomas No: 1) Bengals staff and No
counsel with Gabelman To: Bob counsel negate confidentiality
attached Giglio Bedinghaus, Stuart as third parties to cover email
email and Dornette, Aaron Herzig with attachments. 2) no
forwarded Cc: Roger Friedmann, evidence provided that content
announcement Jeff Aluotto is related to Board legal
Case No. 2019-00789PQ -48- REPORT AND RECOMMENDATION
advice. 3) not a communication
between attorney and client.
277- Email attaching From: Theresa Giglio to No: 1) attached to email to No
278 Bengals Thomas Gabelman third party. 2) Mere
announcement administrative cover email. 2)
no evidence provided that
content is related to Board
legal advice.
279- Attached No: 1) final joint press No
280 announcement statement with Bengals
organization, implicitly
approved by vote in public
meeting, is not a privileged
communication. 2) no evidence
provided that content is related
to Board legal advice. 3)
attached to email to third party.
281 Email about From: Thomas No: 1) Bengals staff and No
Bengals Gabelman To: Bob counsel negate confidentiality
announcement Bedinghaus, Stuart as third parties to cover email
Dornette, Aaron Herzig with attachments. 2) no
Cc: Roger Friedmann, evidence provided that content
Jeff Aluotto, Patrick is related to Board legal
Woodside advice.3) not a communication
between attorney and client.
281- Email attaching From: Margaret No: 1) attached to email to
282 Bengals Grossman To: Thomas third party. 2) Mere
announcement Gabelman administrative cover email. 2)
no evidence provided that
content is related to Board
legal advice.
283- Attached No: 1) draft joint press No
284 announcement statement with Bengals
organization is not a privileged
communication. 2) no evidence
provided that content is related
to Board legal advice. 3)
attached to email to third party.
285 Email about From: Thomas No: 1) Bengals staff and No
Bengals Gabelman To: Bob counsel negate confidentiality
announcement Bedinghaus, Stuart as third parties to cover email
Dornette, Aaron Herzig with attachments. 2) no
Cc: Roger Friedmann, evidence provided that content
Jeff Aluotto is related to Board legal
advice.3) not a communication
between attorney and client.
285- Email attaching From: Margaret No: 1) attached to email to No
286 Bengals Grossman To: Thomas third party. 2) Mere
announcement Gabelman administrative cover email. 2)
no evidence provided that
content is related to Board
legal advice.
287- Attached No: 1) draft joint press No
288 announcement statement with Bengals
organization is not a privileged
communication. 2) no evidence
provided that content is related
to Board legal advice. 3)
attached to email to third party.
289 Email about From: Thomas No: 1) Bengals staff and No
Case No. 2019-00789PQ -49- REPORT AND RECOMMENDATION
Bengals Gabelman To: Bob counsel negate confidentiality
announcement Bedinghaus, Stuart as third parties to cover email
Dornette, Aaron Herzig with attachments. 2) no
Cc: Roger Friedmann, evidence provided that content
Jeff Aluotto, Patrick is related to Board legal
Woodside advice.3) not a communication
between attorney and client.
290- Attached No: 1) draft joint press No
291 announcement statement with Bengals
organization is not a privileged
communication. 2) no evidence
provided that content is related
to Board legal advice. 3)
attached to email to third party.
292- Email attaching From: Thomas No: 1) Bengals staff and No
293 revised MOU Gabelman To: Stuart counsel negate confidentiality
Dornette, Daniel Fausz, as third parties to cover email
Aaron Herzig, Bob with attachments. 2) no
Bedinghaus Cc: Roger evidence provided that content
Friedmann, Jeff Aluotto, is related to Board legal
Patrick Woodside advice.3) not a communication
between attorney and client.
294- Revised No: 1) draft MOU with Bengals No
295 Memorandum of organization is not a privileged
Understanding communication. 2) no evidence
provided that content is related
to Board legal advice. 3)
attached to email to third party.
296- Revised Lease No: 1) draft outline of No
299 Amendment agreement with Bengals
organization is not a privileged
communication. 2) no evidence
provided that content is related
to Board legal advice. 3)
attached to email to third party.
300- Emails discussing Between: Stuart No: 1) Bengals staff and No
303 terms of lease Dornette, Thomas counsel negate confidentiality
Gabelman Cc: Jeff as third parties to emails with
Aluotto, Roger attachments. 2) no evidence
Friedmann, Patrick provided that content is related
Woodside, Bob to Board legal advice. 3) not
Bedinghaus, Aaron communications between
Herzig attorney and client.
304- Attachment, No: 1) draft structural terms of No
311 negotiation matrix partnership is not privileged
communication. 2) no
evidence provided that content
is related to Board legal
advice. 3) attached to email to
third party.
312- Emails regarding Thomas Gabelman, Bob No: 1) Bengals staff and No
323 meeting with Bedinghaus Cc: Stuart counsel negate confidentiality
CSMO Dornette, Aaron Herzig, as third parties to emails. 2)
Roger Friedmann, Jeff scheduling of meeting is not
Aluotto, Patrick privileged communication. 3)
Woodside no evidence provided that
content is related to Board
legal advice. 4) not
communications between
attorney and client.
324- Emails discussing Thomas Gabelman, Bob No: 1) Bengals staff and No
Case No. 2019-00789PQ -50- REPORT AND RECOMMENDATION
328 terms of lease Bedinghaus, Stuart counsel negate confidentiality
Dornette, Cc: Aaron as third parties to emails. 2)
Herzig, Roger proposed scheduling of
Friedmann, Jeff Aluotto, meeting in second email is not
Patrick Woodside privileged communication. 3)
no evidence provided that
content is related to Board
legal advice. 4) not
communications between
attorney and client.
329- Emails discussing Thomas Gabelman, No: 1) Bengals staff and No
334 terms of lease Stuart Dornette Cc: Jeff counsel negate confidentiality
Aluotto, Roger as third parties to emails and
Friedmann, Patrick attachments. 2) no evidence
Woodside, Bob provided that content is related
Bedinghaus, Aaron to Board legal advice.3) not
Herzig communications between
attorney and client.
335- Attachment, No: 1) draft structural terms of No
342 negotiation matrix partnership is not privileged
communication. 2) no
evidence provided that content
is related to Board legal
advice. 3) attached to email to
third party.
343- Email chain about Between: Stuart No: 1) Bengals staff and No
346 lease terms Dornette, Thomas counsel negate confidentiality
Gabelman Cc: Jeff as third parties to emails and
Aluotto, Roger attachments. 2) no evidence
Friedmann, Patrick provided that content is related
Woodside, Bob to Board legal advice.3) not
Bedinghaus, Aaron communications between
Herzig attorney and client.
347- Attachment, No: 1) draft structural terms of No
360 negotiation matrix partnership is not privileged
communication. 2) no
evidence provided that content
is related to Board legal
advice. 3) attached to email to
third party.
361- Email chain about Between: Thomas No: 1) Bengals staff and No
363 lease terms Gabelman, Stuart counsel negate confidentiality
Dornette Cc: Jeff as third parties to emails and
Aluotto, Roger attachments. 2) no evidence
Friedmann, Patrick provided that content is related
Woodside, Bob to Board legal advice.3) not
Bedinghaus, Aaron communications between
Herzig attorney and client.
364- Attachment, No: 1) draft structural terms of No
371 negotiation matrix partnership is not privileged
communication. 2) no
evidence provided that content
is related to Board legal
advice. 3) attached to email to
third party.
372- Email chain about Between: Thomas No: 1) Bengals staff and No
274 lease terms Gabelman, Stuart counsel negate confidentiality
Dornette Cc: Jeff as third parties to emails and
Aluotto, Roger attachments. 2) no evidence
Friedmann, Patrick provided that content is related
Woodside, Bob to Board legal advice.3) not
Case No. 2019-00789PQ -51- REPORT AND RECOMMENDATION
Bedinghaus, Aaron communications between
Herzig attorney and client.
375- Attachment, No: 1) draft structural terms of No
381 negotiation matrix partnership is not privileged
communication. 2) no
evidence provided that content
is related to Board legal
advice. 3) attached to email to
third party.
Conclusion
{¶62} Based on the pleadings, affidavits, and documents submitted in this action,
I recommend the court order respondent to provide requester with copies of all withheld
records other than as noted in the table of permitted exceptions. I further recommend
the court find that respondent did not provide copies or any other response within a
reasonable period of time in violation of R.C. 149.43(B)(1). I recommend the court order
that requester is entitled to recover from respondent the amount of the filing fee of
twenty-five dollars and any other costs associated with the action that it has incurred. I
recommend costs be assessed to respondent.
{¶63} 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 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).
JEFF CLARK
Special Master
Filed August 25, 2020
Sent to S.C. Reporter 10/9/20