2018 Ohio 5445
Ohio Ct. Cl.2018Background
- Chillicothe Gazette reporter requested various records from Chillicothe City Schools (CS) relating to a Title IX matter, attorney Sandra McIntosh, and the insurer-appointed law firm Freund, Freeze & Arnold. Requests included: a "Title IX report by the attorneys," contract/engagement documentation and bills, meeting minutes showing board approval, insurance policy and all correspondence with the carrier.
- CS produced a redacted Title IX investigation report (the investigative report), provided the insurance policy, and withheld other items asserting nonexistence, that items were not CS records (paid/held by insurer Liberty Mutual), ambiguity/overbreadth, FERPA/R.C. 3319.321 and attorney-client privilege.
- Gazette filed a Public Records Act enforcement action under R.C. 2743.75; CS moved to dismiss. Special Master denied dismissal and proceeded to adjudicate merits.
- Special Master concluded (1) there were two different reports: an investigative Title IX report (produced, partially redacted) and a separate attorney-client "recommendations/risk management" report (not a Title IX investigative report and not required by the request); (2) FERPA and R.C. 3319.321 permit redaction of personally identifiable student information but CS over-redacted portions of the produced Title IX investigative report and must disclose non-identifying content; (3) no CS contract or bills for McIntosh existed or, if they exist, are not CS records because Liberty Mutual engaged and paid counsel; (4) requests for "all correspondence" and "meeting minutes showing board approval" were ambiguous/overbroad or sought information rather than specific records; (5) an October 13, 2017 representation/engagement-type letter and a November 1, 2017 insurer email were identified as responsive and must be produced.
- Special Master recommended production of: the non-exempt portions of the Title IX investigative report (i.e., narrower redactions), the November 1, 2017 email from Liberty Mutual, and the October 13, 2017 letter from McIntosh; recommended denial of disclosure for non-CS records (legal bills/contract) and dismissed other requests as ambiguous or moot where applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether requester sufficiently identified records | Gazette argued requests reasonably identified documents attached to correspondence and follow-up clarifications | CS argued requests were ambiguous/overbroad and complaint unclear | Complaint survived 12(b)(6); court examines requests themselves — some requests were sufficiently specific, others were ambiguous and denied as such |
| Production of attorney "Title IX report" v. attorney recommendations report | Gazette sought "Title IX report by the attorneys" and contends second report should be produced | CS produced investigative Title IX report (redacted) and said second attorney-client recommendations report is not a Title IX investigative report and not covered by request | Investigator's Title IX report is a responsive public record (produce redacted non-identifying info); the separate attorney-client recommendations report was not the requested Title IX investigative report and CS did not violate PRA by withholding it |
| FERPA / R.C. 3319.321 redactions | Gazette contended CS over-redacted and must disclose non-identifying content | CS relied on FERPA and R.C. 3319.321 to redact student-identifying information | FERPA and R.C. 3319.321 permit redaction of personally identifiable student information but CS over-redacted; special master ordered disclosure of non-identifying portions and limited permissible redactions per FERPA categories |
| Whether insurer-paid legal bills / contract are "records" of CS | Gazette argued CS must produce contract/bills or obtain them from insurer (quasi-agency) | CS argued bills/contract were created/kept by Liberty Mutual, not CS, and CS did not engage/pay counsel | Special Master held bills/contract were not records of CS (created/kept by insurer); quasi-agency not met because insurer's actions not shown to be performed "in order to carry out" CS responsibilities and CS lacked monitoring/access rights |
| Meeting minutes "showing board approval to hire" counsel | Gazette sought minutes showing board approval | CS said such minutes do not exist and that request sought information/search rather than identifiable records | Request was an improper search-for-information; CS showed no such minutes exist and Gazette failed to prove otherwise |
| Request for "all correspondence" with insurer re: retainer | Gazette sought broad correspondence with insurer | CS argued the phrase "all correspondence" is overly broad and ambiguous | Request was ambiguous/overly broad and denied in part; CS did produce specific responsive documents (insurer email) and must produce the November 1, 2017 email; other correspondence request properly narrowed or rejected |
| Attorney-client privilege for representation/engagement letter | CS asserted privilege for communications with McIntosh | Gazette argued some administrative/identifying material must be disclosed | Special Master found October 13, 2017 letter mainly administrative (representation notice and client-rights text) and not privileged; ordered production |
Key Cases Cited
- State ex rel. Dann v. Taft, 109 Ohio St.3d 364 (recognizes public-records policy favoring disclosure)
- State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155 (Public Records Law ensures government accountability)
- State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224 (PRA construed liberally in favor of access)
- State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81 (burden on custodian to prove exceptions to disclosure)
- State ex rel. ESPN, Inc. v. Ohio State Univ., 132 Ohio St.3d 212 (FERPA may bar disclosure of education records; surgical redaction required)
- State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139 (requester must prove existence of records by clear and convincing evidence)
- State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122 (requester must identify records with reasonable clarity)
- State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391 (embedded narrow language can save an otherwise overbroad request)
- State ex rel. Toledo Blade v. Ohio Bur. of Workers' Comp., 106 Ohio St.3d 185 (private-entity records may be public under quasi-agency doctrine)