Foulk v. Upper Arlington, 2017 Ohio 4249

On Jan. 10, 2017 Upper Arlington City Council held a public retreat; Robert Foulk requested the "complete audio recording" that day.
The City initially produced an audio file on Jan. 19 with ~14 minutes redacted, citing attorney-client privilege; Foulk challenged the redactions and asked the City to preserve the original.
Foulk filed a R.C. 2743.75 public-records complaint on Feb. 6, 2017; the court ordered the unredacted audio filed under seal and later the City declared a waiver and provided the full recording in April.
The City explained the recording did not capture the opening ~49 minutes because the device was started late; the City asserts it produced all existing responsive audio.
The Special Master found (1) the withheld 14 minutes were not privileged because communications during an open public meeting are not made "in confidence" and because an unnecessary third party (a contracted facilitator) was present, and (2) the City’s 88-day delay in producing the withheld portions was not within a "reasonable period of time."

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the City properly withheld portions of the meeting audio under attorney-client privilege	Foulk: withheld portions are public and not privileged	City: communications with counsel were privileged and exempt from disclosure	Held: Not privileged — communications during open meeting not "in confidence"; presence of unnecessary third party waived privilege
Whether the City produced all existing responsive audio (mootness)	Foulk: provided file appears incomplete (disparity with minutes)	City: provided all existing audio; failure to start recorder explains missing portion	Held: Moot as to production — City credibly produced all existing responsive audio (no proof more exists)
Whether the controversy is "capable of repetition yet evading review" to avoid mootness	Foulk: City policy suggests it may redact similarly in future meetings	City: future disputes can be adjudicated when they occur; not necessarily too short to litigate	Held: Exception does not apply — not shown to be too short to be litigated before cessation
Whether the delay in providing the withheld portions violated the requirement to produce records within a "reasonable period of time"	Foulk: initial redaction then 88-day delay was unreasonable	City: time permitted for legal review and editing justified delay	Held: Delay unreasonable — Foulk entitled to recovery of filing fee and costs for untimely access

State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379 (Ohio 1998) (attorney-client privilege recognized in public-records context)
State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350 (Ohio 2013) (clear-and-convincing standard in mandamus public-records cases)
State ex rel. Striker v. Smith, 129 Ohio St.3d 168 (Ohio 2011) (post-filing production of records can render claim moot)
State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229 (Ohio 2000) (exception to mootness when issue is capable of repetition yet evading review)
State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619 (Ohio 1994) (timeliness of production and availability of remedies)
State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171 (Ohio 1996) (attorney-fee/recovery principles where records produced only after litigation)
State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St.3d 292 (Ohio 2016) (burden on custodian to prove applicability of privilege)
White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St.3d 416 (Ohio 1996) (audio recordings can serve as official minutes; Open Meetings Act purpose)
State v. Post, 32 Ohio St.3d 380 (Ohio 1987) (voluntary disclosure to third parties destroys attorney-client privilege)