2018 Ohio 5133
Ohio2018Background
- Hogan Lovells (relators) emailed a public-records request to the Ohio Department of Rehabilitation & Correction (DRC) on March 7, 2016 seeking records about acquisition/supply of lethal-injection drugs (15 discrete categories). DRC acknowledged receipt but did not produce substantive records until December 29, 2016.
- DRC produced some documents (e.g., Akorn and Pfizer emails) and redacted or withheld others citing R.C. 2949.221(B)(1) (confidentiality for persons/entities involved with lethal-injection drugs).
- The court ordered DRC to file under seal for in camera review: (1) letters requesting confidentiality and DRC responses (Exhibit 7), and (2) purchase orders, invoices, packing slips, inventories, requisitions dated July–Dec 2016 (Exhibit 8).
- Exhibit 7 letters were dated July–Sept 2015 (responsive to the March 7, 2016 request); Exhibit 8 documents were dated after March 7, 2016.
- Court evaluated (a) whether R.C. 2949.221 exempted the sealed records in whole or in part, (b) whether DRC timely complied with the Public Records Act, and (c) entitlement to statutory damages and attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DRC must disclose correspondence (Exhibit 7) that include written confidentiality requests under R.C. 2949.221 | Hogan Lovells: letters are public records; exempt identifying information should be redacted, not whole records withheld | DRC: letters (and responses) are exempt under R.C. 2949.221 because releasing them would identify protected entities; some letters are inextricably intertwined so must be withheld entirely | Court: Produce letters 1,2,4,5 and DRC responses with identifying info (names, contacts, signatures, seals, etc.) redacted; letter 3 withheld in full because identifying info is inextricably intertwined |
| Whether DRC must produce documents in Exhibit 8 (purchase orders, invoices, packing slips, inventories) | Hogan Lovells: Exhibit 8 records are responsive to categories seeking drug names, lot numbers, chain-of-custody, purchase records | DRC: many Exhibit 8 records were created/received after March 7, 2016 and therefore fall outside the scope of the request | Court: Denied writ as to Exhibit 8 — all Exhibit 8 records postdate the March 7, 2016 request and are outside its reach |
| Whether exemptions require redaction rather than full withholding | Hogan Lovells: statute and R.C.149.43(B)(1) require disclosure of nonexempt portions of a record | DRC: in some letters the identifying information is inextricably intertwined, precluding meaningful redaction | Court: Applies redaction where nonidentifying information can reasonably be separated; where intertwined, entire record may be withheld (applies to third letter) |
| Remedies for DRC's delayed response and whether statutory damages/attorney fees are available | Hogan Lovells: DRC’s ~10-month delay entitles it to statutory damages and mandatory attorney fees (request made March 7, 2016) | DRC: argues later statute version controls (after S.B. 321) and/or that delay was inadvertent; statutory damages unavailable because request was emailed | Court: Denied statutory damages (request by email did not meet then-applicable delivery requirement). Awarded court costs and attorney fees: mandatory under the R.C. 149.43 version in effect at the time of the March 7, 2016 request; amount to be determined by itemized fee application |
Key Cases Cited
- Gilbert v. Summit Cty., 821 N.E.2d 564 (Ohio 2004) (Public Records Act construed liberally in favor of disclosure)
- State ex rel. Cincinnati Enquirer v. Jones-Kelley, 886 N.E.2d 206 (Ohio 2008) (burden on custodian to prove records fall squarely within exception)
- State ex rel. Taxpayers Coalition v. Lakewood, 715 N.E.2d 179 (Ohio 1999) (no duty to produce records that did not exist at time of request)
- State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 101 N.E.3d 396 (Ohio 2017) (timeliness of response judged by facts; reference to which statutory version applies)
- State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 963 N.E.2d 1288 (Ohio 2012) (email delivery may not satisfy statutory delivery requirements in effect at the time)