Wengerd v. E. Wayne Fire Dist.
2017 Ohio 8951
| Ohio Ct. Cl. | 2017Background
- Requester David Wengerd sought (Dec. 2016–Jan. 2017) attorney invoices, FEMA grant applications (SAFER/AFG for 2014–2015), and 2016 Fire/EMS run logs from East Wayne Fire District (East Wayne FD).
- East Wayne FD initially produced redacted Comstock invoices and said FEMA grant applications were filed/maintained through the federal portal (FEMA/DHS) and not kept locally; it also said run logs were not compiled in the exact format requested.
- Wengerd filed a public-records complaint under R.C. 2743.75 alleging wrongful denial under R.C. 149.43(B). After suit, defendant produced run records and unredacted records under seal to the court; redacted attorney invoices remained contested.
- The special master reviewed: whether (1) grant applications are public records "kept by" the district, (2) whether redactions to attorney billing narratives were protected by attorney-client or trial-prep privilege, and (3) whether narrative portions of the grant applications could be withheld as trade secrets or copyrighted works.
- Findings: run logs claim rendered moot by production; attorney-billing narrative redactions upheld as privileged; FEMA grant applications are records "kept by" East Wayne FD and not exempt as trade secret or copyright (subject to limited permissible redactions for personal/administrative sensitive data).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are FEMA grant applications "public records" of East Wayne FD? | Wengerd: applications document East Wayne FD activities and must be produced. | East Wayne FD: applications are property/records of DHS (filed electronically) and not "kept by" the district. | Held: Applications meet R.C. 149.011(G) definition and are "kept by" the district (direct access via SAM.gov and via contractor). Produce. |
| May East Wayne FD rely on contractor possession to avoid producing records? | Wengerd: District must retrieve records even if held by contractor. | East Wayne FD: Gatchell (contractor) maintained/controlled files; DHS maintained portal. | Held: District has quasi-agency duty; must produce records it created/received/has access to through contractor; cannot avoid disclosure. |
| Are narrative billing entries in attorney invoices subject to privilege? | Wengerd: Redactions overbroad; wants unredacted invoices. | East Wayne FD: Narrative descriptions are protected by attorney-client/trial-prep privilege. | Held: In camera review: narrative descriptions meet common-law attorney-client privilege; redactions upheld. |
| Are narrative fields of grant applications exempt under trade secret or copyright law? | Wengerd: Seeks full access (subject to limited redactions); no commercial intent. | East Wayne FD/Gatchell: Narrative fields are Gatchell's proprietary work—trade secret and copyrighted literary work; nondisclosure contract bars release. | Held: Trade-secret claim fails (no statutory showing); copyright claim fails (insufficient creativity and fair-use applies); contractual confidentiality cannot bar public disclosure. Produce narratives (except allowed redactions). |
Key Cases Cited
- State ex rel. Dann v. Taft, 109 Ohio St.3d 364 (recognizing open-government policy under Public Records Act)
- State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St.3d 292 (attorney-client privilege applies to narrative portions of billing statements)
- State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654 (records under contractor control are within public office's jurisdiction)
- Kish v. Akron, 109 Ohio St.3d 162 (broad statutory definition of "records")
- State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37 (public office's duty to obtain records prepared by private entity performing public functions)
- State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396 (trade-secret exception construed narrowly; proponent bears burden)
- Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (copyright protects expression, not facts; originality requires a modicum of creativity)
- State ex rel. Rea v. Ohio Dep't of Education, 81 Ohio St.3d 527 (fair-use analysis in public-records/copyright context)