2024 Ohio 1266
Ohio Ct. Cl.2024Background
- This case arises from a public records dispute under Ohio law, involving requests by Dr. Farnaz Maleky, a faculty member at The Ohio State University (OSU), for records related to an internal misconduct investigation involving Maleky.
- The Special Master issued two Reports and Recommendations addressing whether OSU must produce various categories of emails and documents, many of which had previously been redacted or withheld under claimed exemptions.
- The Court considered objections from both Maleky (the requester) and OSU (the respondent), relating to whether further records should be disclosed, whether certain information is exempt under FERPA and attorney-client privilege, and whether the university complied with the procedural requests.
- The central factual disputes concerned (1) the existence and completeness of records, (2) the application/exceptions of statutory privileges (FERPA and attorney-client), and (3) the sufficiency of OSU’s document search and production.
- After remand for further review of specific record categories, both parties filed additional objections challenging the Special Master's findings and recommendations.
- The Court ultimately adopted the Special Master’s Supplemental Report in full, ordering OSU to produce additional unredacted records or to certify their nonexistence, rejecting both parties’ remaining objections.
Issues
| Issue | Maleky's Argument | OSU's Argument | Held |
|---|---|---|---|
| Application of FERPA to requested records | FERPA does not apply because subjects are employees, not students | FERPA protects certain information within requested records from disclosure | Court found FERPA does not warrant the redactions requested by OSU |
| Applicability of attorney-client privilege | Privilege should not exempt communications unless clearly for legal advice | Certain requested documents are privileged as legal communications | Court sustained privilege only where communications clearly met the standard, otherwise overruled OSU's broad claim |
| Sufficiency of OSU’s document production and certification | OSU must produce records shown to exist or provide updated certifications; doubts resolved in favor of disclosure | OSU has produced/certified all responsive documents, some are already produced, others are privileged or protected | Ordered OSU to produce unredacted records or certify their nonexistence; doubts about records resolved in favor of disclosure |
| Consideration of new evidence on review | Court should consider evidence showing existence of more records | Court submitted additional evidence under seal, asserting necessity for privilege review | Court refused to consider new evidence not before the Special Master, adhering strictly to its reviewing role |
Key Cases Cited
- State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81 (strictly construes Public Records Act exceptions against the public-records custodian; custodian bears the burden of proving applicability of an exception)
- State ex rel. Carr v. Akron, 112 Ohio St.3d 351 (any exceptions to Ohio’s Public Records Act must be proven by the records custodian)
- State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160 (state-employee home addresses generally not subject to public records disclosure)
- State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245 (doubt in public records cases is resolved in favor of disclosure)
- State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537 (attorney-client privilege exceptions under Ohio law)