2021 Ohio 1762
Ohio2021Background
- Hogan Lovells (relators) submitted public-records requests to the Ohio Department of Rehabilitation and Correction (DRC) about lethal-injection protocols and related training; a prior 2016 request resulted in partial relief in State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr.
- In July 2019 Hogan Lovells sent a new e-mail request seeking 16 specified records (postdating the first request); DRC did not acknowledge or respond for over three months, prompting this mandamus action.
- DRC produced over 120 pages only after litigation began but withheld documents responsive to Request No. 11 (legal memoranda/emails) as attorney-client and work-product privileged, and withheld records responsive to Request No. 16 (training/rehearsal records tied to a planned execution of inmate Warren Henness) as "records of inmates" under R.C. 5120.21(F).
- The court reviewed the withheld materials in camera. It held that the four No. 11 documents were properly withheld under the attorney-client/work-product privileges.
- The court also held that the No. 16 records related or referred to a particular inmate (Henness) and thus fit R.C. 5120.21(F)’s exemption from public-record status.
- Outcome: writ of mandamus denied; statutory damages awarded ($500) for DRC’s untimely production; Hogan Lovells may file an itemized application for attorney fees (limited to certain periods); request for court costs denied. A concurrence/dissent would have read R.C. 5120.21(F) more narrowly and ordered broader disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether four documents withheld under attorney-client / work-product privileges (Request No. 11) must be disclosed or partially redacted | Hogan Lovells: DRC overbroadly redacted/withheld and must produce nonprivileged portions | DRC: documents are privileged in whole or in part; some pages are inextricably intertwined and may be withheld | Court: Privilege applies; DRC properly withheld the four records (privilege protects entire emails/attachments in context) |
| Whether training/rehearsal records that reference a particular inmate are "public records" or exempt as "records of inmates" under R.C. 5120.21(F) (Request No. 16) | Hogan Lovells: The records primarily document institutional preparations and policies and should be disclosed with redactions for sensitive personal/medical info | DRC: Records relate to a specific inmate (Henness) and are exempt as "records of inmates" under R.C. 5120.21(F) | Court: R.C. 5120.21(F) covers records that "relate or refer to" an inmate; withheld records concern Henness and are exempt; no mandamus relief on No. 16 |
| Whether relator is entitled to statutory damages for DRC’s delay | Hogan Lovells: Request complied with statutory transmission rules and DRC’s delayed production warrants statutory damages | DRC: (did not dispute untimeliness) | Court: Hogan Lovells satisfied form/transmission rules; statutory damages accrue from filing date of mandamus action; awarded $500 (five business days at $100/day) |
| Whether relator is entitled to attorney fees and court costs | Hogan Lovells: Entitled to attorney fees and court costs for DRC’s failure to timely respond and for having to litigate | DRC: Court should reduce or deny fees/costs because alternative means could have resolved dispute and because DRC eventually produced records voluntarily | Court: Attorney-fee application permitted but limited to preproduction work plus litigation to prove fees; may consider reduction factors; court costs denied (no bad faith shown) |
Key Cases Cited
- State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56 (Ohio 2018) (prior mandamus addressing DRC lethal-injection records)
- Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537 (Ohio 2009) (attorney-client privilege scope for public-records requests)
- State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191 (Ohio 2013) (attorney-client privileged records are not public records)
- Anderson v. Vermilion, 134 Ohio St.3d 120 (Ohio 2012) (distinguishing billing statement metadata from privileged narrative descriptions)
- Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (Ohio 2010) (work-product/trial-preparation privilege explained)
- State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10 (Ohio 2011) (inextricably intertwined privileged material may be withheld in full)
- State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79 (Ohio 1988) (court must scrutinize withheld records individually)
- State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13 (Ohio 2018) (statutory damages available for untimely public-records response)