State ex rel. Lanham v. DeWine , 135 Ohio St. 3d 191 ( 2013 )

[Cite as State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199.]
THE STATE EX REL. LANHAM v. DEWINE, ATTY. GEN., ET AL.
[Cite as State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199.]
Mandamus—Public records—Attorney-client privilege—Motion to strike
statements in affidavit denied because statements made were sufficiently
based on affiant’s personal knowledge—Documents covered by attorney-
client privilege were properly withheld—Writ denied.
(No. 2012-0203—Submitted January 9, 2013—Decided January 29, 2013.)
IN MANDAMUS.
____________________
Per Curiam.
{¶ 1} This is an action for a writ of mandamus to compel respondents,
Attorney General Michael DeWine and his office (collectively, “the attorney
general’s office”), to provide unredacted copies of records relating to the claim
that State Representative Danny R. Bubp simultaneously held the public offices of
state representative and mayor’s court magistrate. Because relator, Kent Lanham,
has not established his entitlement to the requested extraordinary relief, we deny
the writ.
Facts
{¶ 2} Danny R. Bubp was a state representative for the 88th house
district in the General Assembly. In 2009 and 2010, Bubp served as state
representative and also served as mayor’s court magistrate for the villages of
Ripley and Winchester, Ohio. Thereafter, Bubp continued to serve as state
representative and mayor’s court magistrate for Ripley.
{¶ 3} In October 2009, a Cincinnati television station reported that the
Democratic Party chairmen of the three counties composing the 88th Ohio house
district had filed complaints with then Ohio Attorney General Richard Cordray
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and the county prosecuting attorneys claiming that by holding the public offices
of state representative and mayor’s court magistrate simultaneously, Bubp
violated the Ohio Constitution, Article II, Section 4, and R.C. 101.26.
{¶ 4} Lanham is a taxpayer and resident of Clermont County, Ohio,
which is within the 88th Ohio house district. On November 17, 2011, Lanham,
through his counsel, Curt C. Hartman, hand-delivered to the attorney general’s
office a written request for copies of the following records concerning any report,
complaint, claim, or other communication to that office relating to Bubp’s
simultaneously holding and exercising the public offices of state representative
and mayor’s court magistrate:
all records that document any report, complaint, claim,
request for investigation or request for legal action relating to the
fact that State Representative Danny R. Bubp was simultaneously
holding and/or continues to simultaneously hold the public offices
of state representative and magistrate in a mayor’s court;
all records documenting all actions taken by the office or
employees of the Ohio Attorney General in response to any report,
complaint, claim, request for investigation or request for legal
action relating to the fact that State Representative Danny R. Bubp
was simultaneously holding and/or continues to simultaneously
hold the public offices of state representative and magistrate in a
mayor’s court;
all records documenting any communication to or from the
office or employees of the Ohio Attorney General in response to
any report, complaint, claim, request for investigation or request
for legal action relating to the fact that State Representative Danny
R. Bubp was simultaneously holding and/or continues to
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simultaneously hold the public offices of state representative and
magistrate in a mayor’s court;
any records documenting any investigation undertaken by
the Office of the Attorney General, or its designee, concerning any
report, complaint, claim, request for investigation or request for
legal action relating to the fact that State Representative Danny R.
Bubp was simultaneously holding and/or continues to
simultaneously hold the public offices of state representative and
magistrate in a mayor’s court;
all records documenting any discussions, assessments,
evaluation or decision by the Office of the Attorney General to
pursue vel non any report, complaint, claim, request for
investigation or request for legal action relating to the fact that
State Representative Danny R. Bubp was simultaneously holding
and/or continues to simultaneously hold the public offices of state
representative and magistrate in a mayor’s court;
all records documenting any discussions, assessments,
evaluation or decision by the Office of the Attorney General to
pursue vel non a quo warranto action against Danny R. Bubp for
the forfeiture of the office of state representative in light due to the
fact that Danny R. Bubp was simultaneously holding and/or
continues to simultaneously hold the public offices of state
representative and magistrate in a mayor’s court;
any evaluation or analysis by the Office of the Attorney
General concerning the provision of Article II, Section 4 of the
Ohio Constitution that provides that “[n]o member of the general
assembly shall, during the term for which he was elected * * * hold
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any public office under * * * or this state, or a political subdivision
thereof”;
any evaluation or analysis by the Office of the Attorney
General concerning the provision of Section 101.26 of the Ohio
Revised Code that provides that “[n]o member of either house of
the general assembly * * * shall knowingly do any of the
following: * * * (C) Accept any * * * office * * * that is
authorized or created by the general assembly and that provides
other compensation than actual and necessary expenses * * *. Any
member of the general assembly who accepts any appointment,
office, or employment described in division (A), (B), or (C) of this
section immediately shall resign from the general assembly, and, if
he fails or refuses to do so, his seat in the general assembly shall be
deemed vacant.”
{¶ 5} In his request, Lanham stated that the time period for responsive
documents may be limited to July 1, 2009, through the date of the request. By
letter dated November 22, 2011, the attorney general’s office acknowledged its
receipt of the request. On December 1, 2011, the attorney general’s office mailed
a CD containing 172 pages of responsive documents. Several documents were
withheld and parts of other documents were redacted based on the claim that they
were covered by the attorney-client privilege.
{¶ 6} On December 7, 2011, Lanham’s attorney e-mailed a request to the
attorney general’s office seeking clarification and confirmation of the attorney-
client-privilege claim. Specifically, Lanham requested that the attorney general’s
office clarify, for each redaction, the identities of the attorney and client for
purposes of invoking the privilege and how communications between Holly
Hollingsworth, the director of media relations for the former attorney general, and
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Kevin McIver, an assistant attorney general and chief of the opinions section for
the office, were covered by the privilege. In its response, the attorney general’s
office noted that Lanham’s questions concerning its reliance on the attorney-client
privilege went beyond the scope of the public-records inquiry.
{¶ 7} On February 2, 2012, Lanham filed this action for a writ of
mandamus to compel the attorney general’s office to provide access to those
portions of the requested public records that were withheld, including the records
for which it claimed attorney-client privilege. Lanham also requested an award of
statutory damages, attorney fees, and costs. The case was referred to mediation,
131 Ohio St.3d 1448, 2012-Ohio-520, 961 N.E.2d 685, but it was subsequently
returned to the regular docket, 131 Ohio St.3d 1506, 2012-Ohio-1666, 965 N.E.2d
308. The attorney general’s office then filed a motion to dismiss, and Lanham
filed a motion to strike the exhibits attached to the motion to dismiss. Lanham
also requested recusal of the court in this and a public-records mandamus case
filed by him against Bubp, and two of the seven justices then sitting recused
themselves.
{¶ 8} In June 2012, the court granted Lanham’s motion to strike the
exhibits attached to the motion to dismiss, denied the motion to dismiss, granted
an alternative writ, and issued a schedule for the presentation of evidence and
briefs. 132 Ohio St.3d 1420, 2012-Ohio-2729, 969 N.E.2d 268. The court
dismissed Lanham’s public-records mandamus case against Bubp. State ex rel.
Lanham v. Bubp, 132 Ohio St.3d 1420, 2012-Ohio-2729, 969 N.E.2d 268.
{¶ 9} Of the 172 pages of documents produced by the attorney general’s
office, Lanham now identifies six redacted documents that remain at issue. The
attorney general’s office redacted these documents on the basis of attorney-client
privilege; Lanham challenges the validity of these redactions.
{¶ 10} In addition to the six redacted documents, Lanham wants two
additional documents. In the discovery responses provided to Lanham in the
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Bubp case, a log of the items withheld on the ground of attorney-client privilege
noted two letters from Michael Lenzo, the majority caucus counsel for the Ohio
House of Representatives, to Assistant Attorney General McIver. These records
were also not provided by the attorney general’s office in response to Lanham’s
request, nor were they mentioned in the summary of the records it was not
producing on the basis of attorney-client privilege.
{¶ 11} The parties submitted evidence and briefs. Lanham also filed a
motion to strike portions of the affidavits submitted by the attorney general’s
office.
{¶ 12} This cause is now before the court for its consideration of the
motion to strike and the merits.
Analysis
Motion to Strike
{¶ 13} In his motion, Lanham seeks to strike parts of the affidavit of
Assistant Attorney General Erin Butcher-Lyden, who works with the public-
records unit of the attorney general’s office. Lanham argues that Butcher-Lyden’s
statements could not have been made based on her personal knowledge. Lanham
also requests that paragraph 7 of the affidavits of Assistant Attorneys General
Damian W. Sikora and Sarah Pierce be stricken. Along with paragraph 13 of
Assistant Attorney General Butcher-Lyden’s affidavit, these paragraphs refer to
the parties’ agreement at the conclusion of mediation. Lanham argues that
communications in mediation are confidential and should not be disclosed.
{¶ 14} For the following reasons, we deny the motion to strike portions of
the affidavits.
{¶ 15} First, Butcher-Lyden had sufficient personal knowledge to satisfy
the requirements of former S.Ct.Prac.R. 10.7 (now S.Ct.Prac.R. 12.06). Under
that rule, affidavits must be made on personal knowledge: “Affidavits shall be
made on personal knowledge, setting forth facts admissible in evidence, and
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showing affirmatively that the affiant is competent to testify to all matters stated
in the affidavit.” See State ex rel. Dawson v. Bloom-Carroll Local School Dist.,
131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 20. However, personal
knowledge can be inferred from the nature of the facts in the affidavit and the
identity of the affiant. See State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d
459, 467, 423 N.E.2d 105 (1981); see also Bank of Am., Natl. Assn. v. Ly, 9th
Dist. No. 25360, 2011-Ohio-437, 2011 WL 345946, ¶ 12.
{¶ 16} Here, Butcher-Lyden, as an assistant attorney general, is familiar
with the internal procedures and workings of the attorney general’s office. She
personally reviewed the documents identified as responsive to the public-records
request and made a legal assessment for any potential exceptions to the Public
Records Act, R.C. 149.43. The contested portions of her affidavit are sufficiently
based on her personal knowledge, gained through firsthand observation of the
documents as well as experience with the procedures at the attorney general’s
office, to satisfy the “personal knowledge” requirement of former S.Ct.Prac.R.
10.7 (now S.Ct.Prac.R. 12.06).
{¶ 17} Second, while the affidavits of Butcher-Lyden, Sikora, and Pierce
do mention mediation, they do not disclose any details of the mediation itself but
mention only those documents that were still at issue after the mediation was
complete. In other words, they indicate the outcome of the mediation, but not
how the parties got to that outcome. Moreover, knowledge of exactly what is still
in contention is obviously needed by the court to continue this litigation. The
comments in the affidavits about mediation do not violate former S.Ct.Prac.R.
17.2 (now S.Ct.Prac.R. 19.02).
{¶ 18} Therefore, we deny Lanham’s motion to strike.
Mandamus—Preliminary Matters
{¶ 19} Mandamus is the proper action to compel adherence to R.C.
149.43, the Public Records Act, and courts construe the act liberally in favor of
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broad access, resolving any doubt in favor of disclosure of public records. State
ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139,
2012-Ohio-4246, 976 N.E.2d 877, ¶ 16.
{¶ 20} The attorney general’s office claims that the records at issue here
are excepted from disclosure. In State ex rel. Cincinnati Enquirer v. Jones-
Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, at paragraph two of
the syllabus, we set forth the standard of proof for public-records custodians
attempting to establish an exception:
Exceptions to disclosure under the Public Records Act,
R.C. 149.43, are strictly construed against the public-records
custodian, and the custodian has the burden to establish the
applicability of an exception. A custodian does not meet this
burden if it has not proven that the requested records fall squarely
within the exception.
{¶ 21} Before assessing whether the attorney general’s office met this
burden here, we first address Lanham’s preliminary contention that due process
forbids the court from deciding this case based on its in camera inspection of the
documents that the attorney general’s office claims are excepted from disclosure.
Lanham also contends that the log provided in discovery listing items that the
attorney general’s office claimed were covered by the attorney-client privilege is
insufficient.
{¶ 22} First, the court has consistently required an in camera inspection of
records before determining whether the records are excepted from disclosure:
When a governmental body asserts that public records are
excepted from disclosure and such assertion is challenged, the
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court must make an individualized scrutiny of the records in
question. If the court finds that these records contain excepted
information, this information must be redacted and any remaining
information must be released.
State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d
786 (1988), paragraph four of the syllabus; see also State ex rel. McCaffrey v.
Mahoning Cty. Prosecutor’s Office, 128 Ohio St.3d 1451, 2011-Ohio-1702, 944
N.E.2d 1176 (court denied a motion for in camera review in a public-records
mandamus case because it had already ordered the respondents to submit an
unredacted copy of the records for which they claimed exemptions for in camera
review); State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 541-542, 721
N.E.2d 1044 (2000) (court noted that it has applied the Natl. Broadcasting
“general rule to require in camera inspections in [public-records mandamus] cases
in which a public entity’s claim that records are exempt * * * is challenged”).
{¶ 23} In challenging this longstanding procedure, Lanham cites cases
from other jurisdictions that do not involve public-records requests. See, e.g., In
re Application of Eisenberg, 654 F.2d 1107 (5th Cir.1981), and Vining v. Runyon,
99 F.3d 1056 (11th Cir.1996). These authorities are manifestly inapplicable
because the sealed records at issue here are the specific subject of a mandamus
action under R.C. 149.43. If the court were to require the disclosure of the subject
records in discovery to permit relator to contest the applicability of a claimed
exception, it would render the case moot. State ex rel. Toledo Blade Co. v.
Toledo–Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d
1221, ¶ 14. And Lanham can still contest the applicability of a claimed exception
by challenging the validity of unsealed evidence that the public-records custodian
submits to support its reliance on the exception. In fact, he did so here—although
unsuccessfully—through his motion to strike. Thus, due process does not prevent
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the court’s consideration of the pertinent records submitted under seal for in
camera review.
{¶ 24} Moreover, Lanham’s challenge to the sufficiency of the log
supplied by the attorney general’s office, which listed the items it claimed are
protected by attorney-client privilege, is not cognizable in this public-records
mandamus case. The attorney general’s office was under no duty under R.C.
149.43 to submit a privilege log to preserve their claimed exception. State ex rel.
Nix v. Cleveland, 83 Ohio St.3d 379, 383, 700 N.E.2d 12 (1998).
{¶ 25} With these preliminary issues resolved, we now consider the
exception claimed by the attorney general’s office for the requested records.
Attorney-Client Privilege
{¶ 26} The attorney general’s office claims that the pertinent records are
excepted from disclosure under the Public Records Act because they are covered
by the attorney-client privilege. R.C. 149.43(A)(1)(v) exempts “[r]ecords the
release of which is prohibited by state or federal law” from the definition of
“public record.” “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 those records.”
Besser, 87 Ohio St.3d at 542, 721 N.E.2d 1044. “In Ohio, the attorney-client
privilege is governed both by statute, R.C. 2317.02(A), which provides a
testimonial privilege, and by common law, which broadly protects against any
dissemination of information obtained in the confidential attorney-client
relationship.” Dawson, 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524,
¶ 27.
{¶ 27} This court has previously addressed when the attorney-client
privilege arises: “ ‘(1) Where 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
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permanently protected (7) from disclosure by himself or by the legal adviser, (8)
unless the protection is waived.’ ” State ex rel. Leslie v. Ohio Hous. Fin. Agency,
105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 21, quoting Reed v.
Baxter, 134 F.3d 351, 355–356 (6th Cir.1998); Perfection Corp. v. Travelers Cas.
& Sur., 153 Ohio App.3d 28, 2003-Ohio-2750, 790 N.E.2d 817, ¶ 12 (7th Dist.).
{¶ 28} The six e-mails are communications between a client—in this case,
members of the administration of the attorney general’s office who asked for legal
advice—with an attorney—in this case, members of the opinions section of the
attorney general’s office. They contain legal analysis and conclusions—that is,
legal advice—from the attorneys in the opinions section to their clients in the
administration. They do not appear to have been shared with anyone outside the
attorney general’s office; the privilege has thus not been waived. The six e-mails
were properly withheld from a public-records release as attorney-client privileged
materials.
{¶ 29} The documents sent from House Majority Counsel Lenzo to
Assistant Attorney General McIver are not quite as obvious. However, we have
held:
“[T]he privilege is not narrowly confined to the repetition of
confidences that were supplied to the lawyer by the client. That
cramped view of the attorney-client privilege is at odds with the
underlying policy of encouraging open communication; it poses
inordinate practical difficulties in making surgical separations so as
not to risk revealing client confidences; and it denies that an
attorney can have any role in fact-gathering incident to the
rendition of legal advice and services.” (Citations omitted.)
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(Emphasis deleted.) State ex rel. Toledo Blade Co. v. Toledo–Lucas Cty. Port
Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 26, quoting
Spectrum Sys. Internatl. Corp. v. Chem. Bank, 78 N.Y.2d 371, 379, 575 N.Y.S.2d
809, 581 N.E.2d 1055 (1991). The attorney-client privilege does not require that
the communication contain purely legal advice, but “ ‘if a communication
between a lawyer and client would facilitate the rendition of legal services or
advice, the communication is privileged.’ ” Id. at ¶ 27, quoting Dunn v. State
Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir.1991).
{¶ 30} In particular, in Toledo Blade, we held that an attorney’s factual
investigation, if incident to or related to any legal advice that the attorney would
give on a particular issue, is covered by the privilege. Id. at ¶ 28-31.
{¶ 31} Here, the two documents Lanham asserts are improperly withheld
are asserted by the attorney general’s office to have been gathered by Assistant
Attorney General McIver as part of his investigation into the matter on which he
was advising his client. Our in camera inspection of the documents reveals that
they contain material pertinent to such an investigation and were transferred to
Assistant Attorney General McIver during the time period that he would have
been investigating the Bubp matter for the attorney general. Therefore, we agree
with the attorney general’s office that the documents are covered by attorney-
client privilege and were properly withheld.
Statutory Damages and Attorney Fees
{¶ 32} The attorney general’s office established the applicability of the
attorney-client privilege and therefore did not fail to comply with R.C. 149.43.
An award of statutory damages and attorney fees is therefore not appropriate. See
R.C. 149.43(C)(1).
Conclusion
{¶ 33} Because Lanham has failed to establish his entitlement to the
requested extraordinary relief, we deny a writ of mandamus to compel the
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attorney general’s office to provide unredacted copies of the requested records.
We deny Lanham’s request for statutory damages and attorney fees.
Writ denied.
O’CONNOR, C.J., and PFEIFER, SADLER, LANZINGER, KENNEDY, FRENCH,
and O’NEILL, JJ., concur.
LISA L. SADLER, J., of the Tenth Appellate District, sitting for
O’DONNELL, J.
__________________
The Law Firm of Curt C. Huffman and Curt C. Hartman, for relator.
Michael DeWine, Attorney General, and Damian W. Sikora and Sarah
Pierce, Assistant Attorneys General, for respondents.
_______________________
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