ROBERT C. FOULK v. CITY OF UPPER ARLINGTON, OHIO
Case No. 2017-00132-PQ
Court of Claims of Ohio
May 25, 2017
2017-Ohio-4249
Special Master Jeffery W. Clark
REPORT AND RECOMMENDATION
- “The City is providing you a redacted copy of the audio recording from the council retreat held on January 10, 2017. Portions of the recording involving attorney-client privileged information, the release of which is prohibited by state or federal law, have been redacted.
R.C. 149.43(A)(1)(v) ; State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379 (1998). The redacted portions total less than fourteen minutes.”
(Requester‘s Exhibit G.) Foulk responded that he intended to challenge the redactions, and requested that the City maintain the original, unedited copy of the recording until the matter was settled. (Requester‘s Exhibit H.)
{¶3}
{¶4}
Suggestion of Mootness
{¶5} In an action to enforce
{¶6} In his May 8, 2017 Memorandum of Requester, Foulk questions whether the newly proffered audio recording was “complete,” noting a forty-nine minute disparity between the meeting duration stated in the minutes, and the length of the “complete and unredacted audio file” provided by Ellrod. (Id. at 11-12.) In an affidavit submitted with the City‘s May 10, 2017 Submittal of Additional Evidence, Ellrod explained that the recording had not captured a portion of the Council meeting:
- “The recording previously produced contains the complete and total audio recording of the January 10, 2017 Council Retreat meeting. The tape was not started at the call to order because I was distracted by setting up for the meeting and forgot to turn on the recording device at the start of the meeting.”
(Id. at ¶ 6.) “Respondents have no duty to create or provide access to nonexistent records.” State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, ¶ 15; State ex rel. Cioffi v. Stuard, 11th Dist Trumbull No. 2009-T-0057, 2011-Ohio-829, ¶ 21-23 (no obligation to provide copy of transcript that was never taken). Considering Ellrod‘s sworn statement that she inadvertently commenced recording after the Council meeting was in progress, Foulk has not shown by clear and convincing evidence that the City has withheld any additional existing audio recording responsive to the request. A reasonable and good faith belief by a requester, without supporting evidence, does not constitute sufficient evidence to establish that a responsive document exists. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor‘s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶ 24-26; State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, ¶ 8.
{¶7} However, provision of all requested records does not render a claim for production moot if the issues raised are capable of repetition, yet evading review. State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000).
- “This exception [to mootness] applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.”
Id. Foulk contends that the issues he raises are capable of repetition yet evading review, and points to Resolution No. 2-2017 (Motion to Dismiss, Exhibit A) in which the City asserts that it may apply the attorney-client privilege under the same circumstances at future City Council meetings. This evidence of likely repetition is unrebutted, but it is only one factor to be considered. Foulk does not establish that the threatened redaction of alleged attorney-client communications from recordings of future City Council meetings is an action “too short” to be fully litigated before its cessation or expiration. If the City continues to maintain audiotapes of City Council meetings, future instances of redaction of allegedly privileged communication would be subject to review in this court, or through mandamus, during the period that they are retained. Even if the City makes no audio recording of all or part of an open session of a public meeting, a remedy exists under
{¶8} I conclude that Foulk has not established that the “capable of repetition yet evading review” exception applies to this claim. I recommend that the court DISMISS AS MOOT Foulk‘s claim for production of the complete Council meeting recording.
Production of Required Records Within a Reasonable Period of Time
{¶9} Even where a claim for production of records has been satisfied, a separate claim based on the untimeliness of the response persists unless copies of all required
- “In view of the absence of an express statutory prohibition and the proclivity of some custodians of public records to force the filing of a mandamus action by a citizen to gain access to records that are obviously public, we hold that a court may award attorney fees pursuant to
R.C. 149.43 where (1) a person makes a proper request for public records pursuant toR.C. 149.43 , (2) the custodian of the public records fails to comply with the person‘s request, (3) the requesting person files a mandamus action pursuant toR.C. 149.43 to obtain copies of the records, and (4) the person receives the requested public records only after the mandamus action is filed, thereby rendering the claim for a writ of mandamus moot.”
State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171, 174, 661 N.E.2d 1049 (1996); see also State ex rel. Calvary v. City of Upper Arlington, 89 Ohio St.3d 229, 232, 729 N.E.2d 1182 (2000).
{¶10} As with mandamus actions, relief is available under
- (3) If the court of claims determines that the public office or person responsible for the public records denied the aggrieved person access to the public records in violation of division (B) of section 149.43 of the Revised Code and if no appeal from the court‘s final order is taken under division (G) of this section, both of the following apply:
* * * - (b) The aggrieved person shall be entitled to recover from the public office or person responsible for the public records the amount of the filing fee of
twenty-five dollars and any other costs associated with the action that are incurred by the aggrieved person, * * *.
Failure to provide copies within a reasonable period of time denies the aggrieved person access to the public records from the time the reasonable period expires, until the records are provided, in violation of
{¶11} Timeliness of production of records is analyzed under the facts and circumstances of each case. State ex rel. Shaughnessy v. City of Cleveland, Slip Opinion at 2016-Ohio-8447, ¶ 8. The requested record in this case was a single audio file. In addition to the time required to create a copy, the City was entitled to the time required to perform any necessary legal review of the request. State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, ¶ 17. Shortly after the January 10, 2017 request, the City notified Foulk that it was conducting a legal review. The City concluded the review, performed audio editing, and made the resulting redacted audio file available to Foulk on January 19, 2017.1 While this initial review and response was timely, I find that the additional 88-day delay between the initial production, and the final production to Foulk of the withheld portions of the recording on April 17, 2017, violated the “reasonable period of time” for production of the withheld fourteen minutes. See State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 623, 640 N.E.2d 174 (1994).
Claimed Exception: Attorney-Client Privilege
{¶12} “Any exception to disclosure under the Public Records Act is strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception.” State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St.3d 292, 2016-Ohio-2974, ¶ 9 (attorney-client privilege). The policy underlying
{¶13} The City argues that the withheld communications were protected from disclosure by the common-law attorney-client privilege, which is defined in Ohio as follows:
- “Under the attorney-client privilege, ‘(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.‘” (Citations omitted.)
State ex rel. Leslie v. Ohio Housing Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 21. The party asserting the attorney-client privilege bears the burden of showing the applicability of the privilege. MA Equip. Leasing I, LLC v. Tilton, 10th Dist. Franklin Nos. 12AP-564 and 12AP-586, 2012-Ohio-4668, ¶ 20-22; Pietrangelo, supra. The parties do not dispute that the withheld communications met criteria (1)-(3) and (5)-(7) of the definition. However, conducting a discussion during an open session of a public meeting under
Communications During an Open Meeting are not Made “In Confidence”
{¶14} Meetings of Ohio‘s public bodies are profoundly open to public observation. “All meetings of any public body are declared to be public meetings open to the public at
{¶15} A public body may not prohibit the public from recording a public meeting. McVey v. Carthage Twp. Trustees, 4th Dist. Athens No. 04CA44, 2005-Ohio-2869, ¶ 14-15; Kline v. Davis, 4th Dist. Lawrence Nos. 00CA32, 01CA13, 2001 Ohio App. LEXIS 5598; 1988 Ohio Att‘y Gen No. 087. The right to record any public meeting stands in contrast to the criminal offense of interception of oral communications.
{¶16} To its credit, the City routinely publishes its meeting recordings on its website.4 “[T]ape recordings are audio transcripts of the proceedings,” Id. at 6, and audio recordings can constitute all or part of a public body‘s means of satisfying the requirements of
- “Audio recordings may be substituted for written minutes provided they are a complete and accurate record of the meeting, the rationale for any decisions, and are in compliance with applicable state law.”
Rules of Council, City of Upper Arlington, Ohio, Article II, 6(C).5 Once created by a public office, an audio recording of a meeting must be made available for public inspection and copying, and retained in accordance with the terms of the public office‘s records retention schedule. 2008 Ohio Op. Att‘y Gen. No. 019 at 6. When a public body creates recordings of its public meetings, the recording is a “record” of the public office that “does not fall within any of the public records exceptions listed in
{¶17} Although no executive session was sought for the communications in this case, the parties agree that the attorney-client privilege alone cannot authorize a confidential executive session. See State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 12th Dist. Clermont Nos. CA2011-05-045, CA2011-06-047, 2012-Ohio-2569, ¶ 77-78; Dispatch Printing Co. v. Columbus City Sch. Dist. Bd. of Educ., Franklin C.P.
{¶18} An open meeting is not just conditionally public for those in attendance, but “open to the public at all times.”
{¶19} I conclude that the City has failed to meet its burden of showing that communication with its counsel during a public meeting was made “in confidence.” Therefore, the attorney-client privilege was either waived or never attached to the fourteen minutes of communication withheld in this case, and could not be asserted as an exception to release of those portions of the recording.
Presence of Unnecessary Third Party Negates Confidentiality
{¶20} Separately, “the attorney-client privilege is destroyed by voluntary disclosure to others of the content of the statement.” State v. Post, 32 Ohio St.3d 380, 385, 513 N.E.2d 754 (1987); Weissenberger, Ohio Evidence, § 501.5. “If the communication between attorney and client takes place in the presence of a third party, and that third party hears the communication contemporaneously with its being made, then the attorney-client privilege for that information never existed . . .” (quoting Fed. Elec. Comm‘n v. Christian Coalition, 178 F.R.D. 61, 71 (E.D.Va.1998)) Flo Pac, LLC v. NuTech, LLC, 2010 U.S. Dist. LEXIS 131120, *20, (D. Md. Dec. 9, 2010). An unnecessary third-party‘s presence “negates the confidentiality element and prevents the communication from ever being deemed confidential, * * *.” Id. at *21. The fact that the third party was an “agent” of the client does not preserve the privilege unless the third party‘s presence is “nearly indispensable or serve[s] some specialized purpose in facilitating the attorney-client
{¶21} Council meeting attendees were categorized in the minutes roll as either “Members,” “Staff,” or “Others.” Facilitator Martin Jenkins7 was listed under “Others.” (Requester‘s Exhibit B at 1.) City Manager Theodore Staton attested that, “Mr. Jenkins, like other City employees present, was an agent of the city for purposes of facilitating and participating in all aspects of the Retreat.” Staton Aff. ¶ 3. However, the City presents no evidence that Jenkins acted as the agent of the Council for the purpose of obtaining legal advice. Jenkins contracted with the City to provide “professional design and facilitation of the 2017 City Council Retreat.” (Motion to dismiss, Staton Aff., Exhibit 2-A, ¶ 1-3.) The contract was “for short term independent personal services and not a contract for employment.” (Id. at ¶ 4.) The contract contained no provision regarding confidentiality. Jenkins was contracted and identified only as a “facilitator,” and not as an agent for the purposes of attorney-client communication. There is no evidence that Jenkins’ presence was necessary during the communication of legal advice, as opposed to merely convenient. Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1424 (3d Cir.1991); Flo Pac, LLC, supra, *24. The bare assertion
{¶22} I conclude that the City has not met its burden to show that the claimed common-law attorney-client privilege was not waived (or never attached) by the voluntary disclosure of the communication to an unnecessary third party. This conclusion is in addition to the preceding conclusion that the communication was not made “in confidence” when spoken during the open session of a public meeting. Each of these conclusions is independently sufficient to defeat the assertion of attorney-client privilege.
Complaint of “Incomplete Minutes”
{¶23} Foulk separately claims “incomplete minutes” as a public records access violation in this case. (Compl., Other.) The Ohio Open Meetings Act requires that “[t]he minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspection.”
{¶24} Once minutes are prepared, Ohio‘s Public Records Act requires a public body to permit public access upon request. State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, ¶ 27. A request for any existing minutes is subject to enforcement under
{¶25} This court thus lacks jurisdiction over, and must dismiss, Foulk‘s claim for relief regarding “incomplete minutes.” Civ.R. 12(B)(1).
Conclusion
{¶26} Upon consideration of the pleadings and attachments, I find that Foulk has established by clear and convincing evidence that the redacted portions of the audio recording of the January 10, 2017 meeting of the Upper Arlington City Council were public records to which no exception applied. Prior to the decision of the special master, the City disclosed the redacted portions of the requested record, which rendered Foulk‘s claim for production MOOT. Accordingly, I recommend that the court issue an order DISMISSING the claim for production of records, but GRANTING Foulk‘s claim that he was denied access to all requested public records within a reasonable period of time, and which provides that Foulk is entitled to recover from the City the costs associated with this action, including the twenty-five dollar filing fee.
{¶27} Pursuant to
JEFFERY W. CLARK
Special Master
cc:
James C. Becker
4380 Braunton Road
Columbus, Ohio 43220-4304
Mark R. Weaver
Molly R. Gwin
Two Miranova Place, Suite 700
Columbus, Ohio 43215-5098
Filed May 25, 2017
Sent to S.C. Reporter 6/13/17