Hicks v. Union Twp., Clermont Cty., Trustees , 2022 Ohio 1618 ( 2022 )

[Cite as Hicks v. Union Twp., Clermont Cty., Trustees, 2022-Ohio-1618.]
CHRISTOPHER RICHARD HICKS Case No. 2022-00024PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
UNION TOWNSHIP, CLERMONT
COUNTY, TRUSTEES
Respondent
{¶1} The Public Records Act, R.C. 149.43, provides that upon request, a public
office “shall make copies of the requested public record available to the requester at cost
and within a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe the
Public Records Act liberally in favor of broad access, with any doubt resolved in favor of
disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. &
Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides
“an expeditious and economical procedure” to resolve public records disputes in the Court
of Claims.
{¶2} On December 23, 2021, 7:11 AM, requester Christopher Hicks made a
request to respondent Union Township, Clermont County, Trustees (the Township) for,
as relevant to the remaining claims,
all documents from the ‘trustee’ meeting conducted on Friday, December
17. * * * If there was any opinion asked for or received by the law advisor
prior to conducting the meeting, I also request a copy of that document ad
[sic] any communications on the matter.
(Complaint at 3.) The Township produced almost 200 pages of records, with some
redactions based on attorney-client privilege and “confidential information.” (Id. at 1.) On
December 31, 2021, Hicks followed up with the Township on the documents provided:
I am requesting unredacted versions of the attached pages (including the 6
pages of a memo titled “Trustee Conflicts of interest.” While I guess one
could assert privilege, they need not and what would be the public purpose
Case No. 2022-00024PQ -2- REPORT AND RECOMMENDATION
in hiding the opinions of counsel on what seem to be questions of hiding a
meeting from the public and on trustee conflicts of interest.
(Id. at 4.) The Township had provided Hicks with a copy of the memorandum leaving
caption information visible but with all substantive content redacted. (Response at 10, 40-
45.) The Township declined Hicks’ invitation to waive attorney-client privilege for any
information in the records. (Complaint at 6.)
{¶3} On January 11, 2022, Hicks filed a complaint pursuant to R.C. 2743.75
alleging denial of access to public records in violation of R.C. 149.43(B). His claims
challenge redactions made to four email records (Id. at 1, Exhs. 1–4) and to a “Trustee
Conflicts of Interest” memorandum authored by the law director. Following unsuccessful
mediation, the Township filed a motion to dismiss (Response) on March 28, 2022. On
April 1, 2022, Hicks filed a reply. On April 12, 2022, the Township filed unredacted copies
of the withheld records under seal and on April 13, 2022 filed a memorandum in support
of motion to dismiss (Sur-reply). On April 14, 2022, Hicks filed a response to the sur-reply
that was not authorized by statute or by order of the special master. In the interest of
justice and pursuant to R.C. 2743.75(E)(2), the special master hereby directs the clerk to
accept Hicks’ response to the sur-reply for filing.
Motion to Dismiss
{¶4} In order to dismiss a complaint for failure to state a claim upon which relief
can be granted, it must appear beyond doubt that the claimant can prove no set of facts
warranting relief after all factual allegations of the complaint are presumed true and all
reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co.
v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set
of facts consistent with the complaint that would allow the claimant to recover, dismissal
for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84,
2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
Case No. 2022-00024PQ -3- REPORT AND RECOMMENDATION
{¶5} The Township moves to dismiss the complaint on the grounds that it properly
redacted only the portions of withheld records that 1) constitute privileged attorney-client
communication, 2) are subject to statutory or constitutional rights of privacy, and/or 3) are
not responsive to the request.1 On consideration the special master finds that none of
these defenses is conclusively shown on the face of the complaint. Moreover, as the
matter is now fully briefed the grounds asserted for dismissal are subsumed in the
argument to deny the claim on the merits. It is therefore recommended the motion to
dismiss be denied.
Burdens of Proof
{¶6} The overall burden of persuasion in a public records case is on requester to
prove his right to relief by the requisite quantum of evidence. Welsh-Huggins v. Jefferson
Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d, ¶ 34. First,
requester must prove he sought an identifiable public record and the public office did not
make the record available. Id. at ¶ 33. Then, if the public office has withheld a record on
the basis of a public records exemption, the public office carries the burden to prove that
the requested record falls squarely within the exemption. Id. at ¶ 35. Exceptions to
disclosure must be strictly construed against the public-records custodian. State ex rel.
Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d
1208, ¶ 7. Any doubt should be resolved in favor of disclosure. State ex rel. James v.
Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).
{¶7} The parties do not dispute that Hicks requested reasonably identified records
and that the Township has withheld portions of those records through redaction.
Attorney-Client Privilege
{¶8} The Township asserts that portions of Complaint Exhibits 1-3 and all
substantive content of the “Trustee Conflicts of Interest” memorandum fall squarely within
1 The Township asserted “non-responsiveness” only after the complaint was filed. However, the
initial explanation provided when denying a public records request does not preclude a public office from
relying upon additional reasons or legal authority in defending an enforcement action. R.C. 149.43(B)(3).
Case No. 2022-00024PQ -4- REPORT AND RECOMMENDATION
the common law attorney-client privilege. “The attorney-client privilege, which covers
records of communications between attorneys and their government clients pertaining to
the attorneys’ legal advice, is a state law prohibiting release of these records.” State ex
rel. Toledo Blade Co. v. Toledo-Lucas County Port Auth., 121 Ohio St.3d 537, 2009-Ohio-
1767, 905 N.E.2d 1221, ¶ 22. The party asserting the attorney-client privilege bears the
burden of showing the applicability of the privilege. State ex rel. Pietrangelo v. Avon Lake,
146 Ohio St.3d 292, 2016-Ohio-2974, ¶ 9; MA Equip. Leasing I, LLC v. Tilton, 980 N.E.2d
1072, 2012-Ohio-4668, ¶ 20-22 (10th Dist.). To satisfy this burden, the proponent must
show that the communication meets all the following conditions:
“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,
824 N.E.2d 990, ¶ 21.
{¶9} A record is not exempt merely because it is received from or sent to a public
office’s legal counsel. Better Gov’t Bureau v. McGraw (In re Allen), 106 F.3d 582, 604,
(1997). Nor does a bare, general assertion that the privilege applies to a communication
meet the burden of proof. Rather,
The party asserting privilege “must make a minimal showing that the
communication involved legal matters. This showing is not onerous and
may be satisfied by as little as a statement in the privilege log explaining the
nature of the legal issue for which advice was sought.” [In re Search Warrant
Executed at Law Offices of Stephen Garea, 1999 U.S. App. LEXIS 3861,
1999 WL 137499, *1-*2 (6th Cir. March 5, 1999)]. That showing “must
provide the reviewing court with enough information for it to make a
determination that the document in question was, in fact, a confidential
communication involving legal advice.” 1999 U.S. App. LEXIS 3861, [WL]
*2.
Case No. 2022-00024PQ -5- REPORT AND RECOMMENDATION
Williams v. Duke Energy Corp., S.D.Ohio No. 1:08-CV-00046, 2014 U.S. Dist. LEXIS
109835, *14-15 (Aug. 8, 2014). See Williamson v. Recovery Ltd. P’ship., S.D.Ohio
No. 2:06-CV-292, 2016 U.S. Dist. LEXIS 125640, *8-10 (Sept. 15, 2016).2 Only when
communications with a client reflect the exercise of an attorney’s professional skills and
judgment, or the communication would clearly facilitate the rendition of legal services or
advice, is the communication privileged. State ex rel. Toledo Blade Co. v. Toledo-Lucas
County Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 27, 31.
{¶10} “[T]he 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).
Because a client’s voluntary disclosure of confidential communications is
inconsistent with an assertion of the privilege, voluntary disclosure of
privileged communications to a third party waives a claim of privilege with
regard to communications on the same subject matter.
(Citations omitted.) MA Equip. Leasing I, LLC at ¶ 20. In determining whether a person to
whom a communication was disclosed is a third party or not, the party asserting the
privilege bears the burden of proof. Id. at ¶ 21-22. In addition to any communications
directly shared, disclosure to a third party waives the claim of privilege with regard to all
other communications on the same subject matter. Hollingsworth v. Time Warner Cable,
157 Ohio App.3d 539, 2004-Ohio-3130, 812 N.E.2d 976, ¶ 65. The ‘same subject matter’
standard is, however, applied narrowly. Id.{¶11} The Supreme Court has consistently required in camera inspection of
records before determining whether they are excepted from disclosure, and “[i]f the court
finds that these records contain excepted information, this information must be redacted
and any remaining information must be released.” (Emphasis added.) State ex rel.
2 There is no material difference between Ohio’s attorney-client privilege and the federal attorney-
client privilege. Guy v. United Healthcare Corp., 154 F.R.D. 172, 177 (S.D.Ohio 1993), fn.3; Inhalation
Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., S.D.Ohio No. 2:07-CV-116, 2012 U.S. Dist. LEXIS 121830(August 28, 2012).
Case No. 2022-00024PQ -6- REPORT AND RECOMMENDATION
Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 22 (attorney-
client privilege), citing State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79,
526 N.E.2d 786 (1988), paragraph four of the syllabus.
Analysis
Complaint Exh. 1
{¶12} This record is a December 23, 2021, 10:19 AM email from trustee Logue to
interim administrator Cory Wright, cc:d to the law director, forwarding to Wright a string of
email that Logue had received from John Becker. The subject matter line for the cover
email and every email within the forwarded string is “Transition for Trustee-Elect & Clarify
Sunshine Laws.” (Complaint, Exh. 1; Response, Exh. A at 000002-000007.) On
comparison of the redacted records submitted by both parties with the unredacted
documents filed under seal, the special master finds that the Township redacted 1)
Logue’s forwarding note to Wright and the law director in the December 23, 2021, email,
2) an observational comment from John Becker to Logue and Joe Dills in a November 19,
2021, 7:14 PM email, 3) Logue’s forwarding of the law director’s legal opinion to Dills and
Becker in a November 19, 2021, 10:13 AM email, 4) thanks and pleasantries sent by
Logue to the law director in a November 19, 2021, 10:11 AM email, 5) a legal opinion and
future scheduling information provided by the law director to Logue in a November 16,
2021 email, 6) pleasantries sent by Logue to the law director in a November 15, 2021
email, 7) scheduling information provided by the law director to trustee Logue in a
November 14, 2021 10:47 PM email, and 8) a request for legal advice sent by Logue to
the law director in a November 14, 2021 10:04 PM email.
Hicks argues as follows:
Exhibit 1: A note from Logue to Cory Wright (administrator) that contains
other streams. It starts with information from Becker for which there is no
privilege. The bottom of page 1 is an email from Logue to Becker and Dills.
The sharing was not from the law director, not pertaining to an executive
session, was not Logue asking for or receiving legal advice. Any privilege
was waived. The entirety of Exhibit 1 should be provided unredacted.
Case No. 2022-00024PQ -7- REPORT AND RECOMMENDATION
(Complaint at 2.) The Township responds that “the subject matter of the communications,
the recipients of the communication, and the time frame the emails were disseminated,
all illustrate that the e-mails were sent to Defendant’s [sic] Law Director for the purpose
of seeking legal advice or assistance.” (Response at 7.) Although the Township adds that
“Trustee Logue may have had more than one reason to send the emails” (Id.), it does not
proffer an alternate reason.
{¶13} The cover email of December 23, 2021 neither requests nor offers legal
advice and the Township provides no affidavit or assertion that the attachments were
clearly forwarded to facilitate legal advice. Several other emails contain only pleasantries
and scheduling information. The Township offers no support for the proposition that such
communications are protected by the attorney client privilege. “The mere fact that a
meeting occurred, or did not occur, does not constitute a ‘communication’ for purposes of
the attorney-client privilege.” McFarland v. West Congregation of Jehovah’s Witnesses,
Lorain, OH, Inc., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 70 (9th Dist.); Cincinnati Enquirer v.
Hamilton Cty. Bd. of Commrs., Ct. of Cl. No. 2019-00789, 2020-Ohio-4856, ¶ 27. It is the
substance of the communication which is protected, not the fact that there has been
communication. United States v. Kendrick, 331 F.2d 110, 113 (4th Cir. 1964); Howell v.
United States, 442 F.2d 265 (7th Cir. 1971); Burton v. R.J. Reynolds Tobacco Co., 170
F.R.D. 481, 484 (Kansas DC, 1997). Thank-yous for previous communications, cover
letters forwarding emails without comment, and notes as to future communication
opportunities are even more attenuated and non-exempt. The special master finds that
the emails numbered 1) through 4), 6), and 7) do not relate substantively to legal advice
sought from or provided by the law director. This finding is consistent with the Township’s
proper disclosure of the email header information that likewise reflects the fact of
privileged communication but not its substance. The special master finds that the content
of email 5), with the exception of the last sentence, and the content of email 7) constitute
confidential attorney-client communication.
Case No. 2022-00024PQ -8- REPORT AND RECOMMENDATION
{¶14} The last sentence in email 5) merely offers the law director’s availability to
respond to questions and does not fall squarely within the exemption. The Public Records
Act provides that only exempt information within an otherwise public record may be
withheld:
If a public record contains information that is exempt from the duty to permit
public inspection or to copy the public record, the public office or the person
responsible for the public record shall make available all of the information
within the public record that is not exempt.
R.C. 149.43(B)(1). See Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group,
2013-Ohio-5736, 6 N.E.3d 631, ¶ 5, 29-31 (8th Dist.), affirmed by Cuyahoga Cty. Bd. of
Health v. Lipson O’Shea Legal Group, 145 Ohio St.3d 446, 2016-Ohio-556, 50 N.E.3d
499, ¶ 4, 12; State ex rel. Beacon Journal Publ. Co. v. Bond, 98 Ohio St.3d 146, 2002-
Ohio-7117, 781 N.E.2d 180, ¶ 13. Specifically, when asserting attorney-client privilege a
public office must redact only the exempt portions of the record and make available all
the information within the public record that is not exempt. State ex rel. Anderson v.
Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 19 (affirming the
“explicit duty” to do so in R.C. 149.43(B)(1)); State ex rel. Lanham v. DeWine, 135 Ohio
St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 22.
{¶15} Separately, Hicks asserts that Logue’s November 19, 2021, email to Dills
and Becker constituted disclosure to third parties of the attached request for and delivery
of legal advice. State v. Post, 32 Ohio St.3d 380, 385, 513 N.E.2d 754 (1987); MA Equip.
Leasing I, LLC, 980 N.E.2d 1072, 2012-Ohio-4668, ¶ 20 (10th Dist.). The Township
responds that advice given by a public office’s legal counsel to members-elect of that
office does not waive the privilege. Humphries v. Chicarelli, 554 Fed.Appx. 401, 402 (6th
Cir.2014). The special master concurs with the Township’s statement of the law.
However, Hicks further notes that Dills and Becker received email 2) with attached emails
3) through 8) in Exhibit 1 prior to certification of their elections. (Reply at 2; Complaint at
5.) The Township does not dispute this timing (Sur-reply at 2), meaning that the record
Case No. 2022-00024PQ -9- REPORT AND RECOMMENDATION
was disclosed to persons who were at the time third parties not within an attorney-client
relationship with the law director. The Township provides no explanation as to how either
an attorney-client relationship then existed, or that Dills’ and Becker’s participation was
otherwise essential to the provision of the legal advice. The special master finds the
Township has not met its burden to show that the records in numbered emails 2) through
8) were kept “confidential.”
Complaint Exh. 2
Hicks argues with respect to the very brief redaction in this email string:
Exhibit 2: An email from Logue to Wright that redacts Logue’s comments.
They do not seem privileged and simply copying the law director, Barbiere,
does not make Logue’s comment privileged. The entirety of Exhibit 2 should
be provided without redaction.
(Complaint at 2.) The email is dated December 27, 2021 from Logue to Wright, cc:d to
Lawrence Barbiere. (Response, Exh. A at 000009-000014.) The subject line of the email
and of attached emails includes “Orientation.” The email attaches a November, 2021
email string of messages involving Logue, Wright, and former administrator Ken Geis,
containing an orientation outline from a different township. Although the text is self-
explanatory as to a straightforward administrative purpose, the Township provides no
explanation of the nature or existence of any related legal issue.
{¶16} The December 27, 2021 creation date of the email means that it is not
responsive to Hicks’ December 23, 2021 request, since a public office has no duty to
produce records that came into existence only after the date of the request. However, the
text is responsive to the subsequent December 31, 2022 request that “I am requesting
unredacted versions of the attached pages.” The later request clearly includes the
redacted text from this – one of the attached pages. Such a request is the functional
equivalent of inspecting records in person at a public office, seeing that one page contains
redactions, and stating “I request an unredacted copy of that page.” The request is neither
ambiguous nor overly broad and reasonably identifies the record sought. So long as the
Case No. 2022-00024PQ -10- REPORT AND RECOMMENDATION
redacted information is a record as defined in R.C. 149.011(G), this constitutes a proper
public records request. Review in camera reveals that Logue’s statement documents the
trustees’ response to a public records request and as such satisfies the definition of a
“record” of the office.3
{¶17} Nothing within, preceding, or subsequent to this email suggests that it is part
of the legal advice sought or provided in Exhibit 1 or the Trustee Conflict of Interest
memorandum. While the law director was copied, nothing connects the statement in this
email to a request for or delivery of advice on any legal issue concerning the public
records request to which it pertains.
Complaint Exh. 3
Hicks argues as follows:
Exhibit 3: An email from Logue to Wright. Logue is not asking for or receiving
legal advice. Copying the law director does not make the material privileged.
The entirety of Exhibit 3 should be provided without redaction.
As with its response to Exhibit 2, the Township does not explain the nature or provenance
of the redacted text from Exhibit 3. The email is dated December 27, 2021 from Logue to
Wright, cc:d to Lawrence Barbiere. (Response, Exh. A at 000016-000020.) The subject
line of the email and of attached emails includes “Catch Up.” The email attaches a
November, 2021 email string between Logue, Wright, and Geis that schedules a meeting
to “catch up.” (Id. at 000019.) The December 27, 2021 creation date of the email again
means that it is not responsive to Hicks’ December 23, 2021 request, but the text is
responsive to the subsequent December 31, 2022 request that “I am requesting
unredacted versions of the attached pages.” Review in camera reveals that Logue’s
statement documents the trustees’ response to a public records request and as such
satisfies the definition of a “record” of the office.
3 The Township’s handwritten notes on the records filed under seal do not label Logue’s December
23, 2021, 10:19 AM email in Exh. 1 as unrelated or unresponsive to Hicks’ December 23, 2021, 7:11 AM
request, but that email is likewise responsive to Hicks’ December 31, 2021 request.
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{¶18} Nothing within, preceding, or subsequent to this email suggests that it is part
of legal advice sought or provided in Exhibit 1 or the Trustee Conflict of Interest
memorandum. Although the law director is copied, nothing connects the text describing
the attached November, 2021 emails to a request for or delivery of advice on any legal
issue concerning the public records request to which it pertains.
Complaint Exh. 4
With regard to the wholly redacted “Personally” section of Complaint Exhibit 4,
Hicks contends the following:
Exhibit 4: A document from the Police Chief that was used in the December
17 meeting and is addressed only to Wright. The entirety of Exhibit 4 should
be provided without redaction other than actual redactable information (ex:
social security number).
The Township counters that the information redacted from Exhibit 4 is confidential
personal information of a police officer “which is exempt from disclosure under R.C.
149.43(A)(7).”
{¶19} R.C. 149.43(A)(1) provides that “‘[p]ublic record’ does not mean any of the
following: * * * (p) Designated public service worker residential and familial information.”
Peace officers are designated public service workers. R.C. 149.43(A)(7). Hicks does not
dispute that the information in this record relates to a peace officer. However, R.C.
149.43(A)(8) specifies that only the following public service worker information may be
withheld:
(8) “Designated public service worker residential and familial information”
means any information that discloses any of the following about a
designated public service worker:
(a) The address of the actual personal residence of a designated public
service worker, except for the following information:
(i) The address of the actual personal residence of a prosecuting attorney
or judge; and
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(ii) The state or political subdivision in which a designated public service
worker resides.
(b) Information compiled from referral to or participation in an employee
assistance program;
(c) The social security number, the residential telephone number, any bank
account, debit card, charge card, or credit card number, or the emergency
telephone number of, or any medical information pertaining to, a designated
public service worker;
(d) The name of any beneficiary of employment benefits, including, but not
limited to, life insurance benefits, provided to a designated public service
worker by the designated public service worker’s employer;
(e) The identity and amount of any charitable or employment benefit
deduction made by the designated public service worker’s employer from
the designated public service worker’s compensation, unless the amount of
the deduction is required by state or federal law;
(f) The name, the residential address, the name of the employer, the
address of the employer, the social security number, the residential
telephone number, any bank account, debit card, charge card, or credit card
number, or the emergency telephone number of the spouse, a former
spouse, or any child of a designated public service worker;
(g) A photograph of a peace officer who holds a position or has an
assignment that may include undercover or plain clothes positions or
assignments as determined by the peace officer’s appointing authority.
The Township may, but is not required to, redact designated public service worker
residential and familial information, since the exemption is discretionary, not mandatory.
2000 Ohio Atty.Gen.Ops. No. 021 (“R.C. 149.43 does not expressly prohibit the
disclosure of items that are excluded from the definition of public records, but merely
provides that their disclosure is not mandated.”).
{¶20} On review of Exhibit 4 in camera, the special master finds that only four
words within the two redacted paragraphs fall squarely within the exemption. The
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redacted text within the “Personally” section (Unredacted Records at 000023) contains
none of the information listed in R.C. 149.43(A)(8)(a) through (e) or (g). Only the
exemption in (f) applies, and then only to the names of the officer’s spouse and children.
As the authority cited by the Township notes, only the information listed in the statute may
be redacted from the otherwise public record. 2000 Ohio Atty.Gen.Ops. 2000-021. The
relevant information listed in the statute is limited to “information that discloses * * * [T]he
name * * * of the spouse, * * * or any child of a designated public service worker.”
(Emphasis added.) R.C. 149.43(A)(8)(f). The Township offers no argument or explanation
that any information other than the names themselves is exempt. The discretionary
withholding of immediate family names from an officer’s records is not the equivalent of
a witness protection program. If the legislature had intended to protect even the
suggestion that an officer had a family, it could have done so. The Township fails to meet
its burden of proof to show that anything but the listed names fall squarely under this
exemption.
{¶21} Second, the Township asserts that “the identity of a police officer’s parents
is also protected from disclosure. State ex rel. Keller v. Cox, 1999-Ohio-264, 85 Ohio
St.3d 279, 282, 707 N.E.2d 931, 934.” (Response at 9.) This assertion is puzzling, as the
names of the officer’s parents do not appear in the section. Even if they did, Keller
concerned the constitutional right of privacy and only where a respondent proved that the
requester of police officer records “might use the information to achieve nefarious ends.”
Keller, 85 Ohio St.3d at 282. The Township makes no such showing here. Although the
Township correctly refrains from attempting to apply R.C. 149.43(A)(7) to the officer’s
mention of having parents, the special master notes that names of parents are not
included in the definition of “designated public service worker residential and familial
information.” R.C. 149.43(A)(8)(f).
Conflict of Interest Memorandum
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{¶22} Rather than arguing that this undated memorandum is not confidential
attorney-client communication, Hicks admitted to the Township that “[w]hile I guess one
could assert privilege, they need not and what would be the public purpose * * *.”
(Complaint at 4.) The Township asserts that the memorandum, “contains legal analysis
and opinion.” This representation is confirmed by review in camera. The memorandum is
addressed from the law director to “Trustees,” and no evidence shows that it was shared
with third parties, e.g., Dills or Becker. The special master finds that the memorandum in
its entirety constitutes legal advice sought from the Township’s legal adviser in his
capacity as such. The advice was communicated in confidence and there is no evidence
of its disclosure to any unnecessary third party.
Conclusion
{¶23} The special master recommends the court order respondent to produce
unredacted copies of requester’s Exhibits 1 through 3 and disclose all information in
Exhibit 4 other than the first names of the officer’s immediate family. The special master
recommends the court deny requester’s claim for production of the information redacted
from respondent’s Trustee Conflicts of Interest memorandum. It is recommended costs
be assessed to respondent.
{¶24} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with
the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this
report and recommendation. Any objection shall be specific and state with particularity
Case No. 2022-00024PQ -15- REPORT AND RECOMMENDATION
all grounds for the objection. A party shall not assign as error on appeal the court’s
adoption of any factual findings or legal conclusions in this report and recommendation
unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
JEFF CLARK
Special Master
Filed April 21, 2022
Sent to S.C. Reporter 5/13/22