Chillicothe Gazette v. Chillicothe City Schools

[Cite as Chillicothe Gazette v. Chillicothe City Schools, 2019-Ohio-965.]

CHILLICOTHE GAZETTE Case No. 2018-00950PQ

Requester Judge Patrick M. McGrath

v. ENTRY ADOPTING AND

MODIFYING RECOMMENDATION

CHILLICOTHE CITY SCHOOLS OF SPECIAL MASTER

Respondent

{¶1} On December 26, 2018, special master Clark issued a report and

recommendation in this case. This public records case was filed by reporter Jona Ison

of the Chillicothe Gazette (Gazette) in accordance with R.C. 2743.75 against Chillicothe

City Schools (Chillicothe CS) wherein the Gazette alleges a denial of access to public

records. The special master recommended denying Chillicothe CS’s motion to dismiss.

(Report and Recommendation, p. 4). Turning to the merits, and pertinent to the

Gazette’s objections, the special master found that Chillicothe CS must provide the

Gazette with a copy of the November 1, 2017 e-mail From Jennifer Bergquist, a claims

specialist for Liberty Mutual, to Jon Saxton, former superintendent for Chillicothe CS.

Id. at 21. The special master also found that “the common-law attorney-client privilege

does not apply to any portion” of an October 13, 2017 letter from Sandra McIntosh to

the Chillicothe School Board’s representative, former Superintendent Jon Saxon. Id. at

24.

{¶2} R.C. 2743.75(F)(2) states, in part: “[e]ither party may object to the report and

recommendation within seven business days after receiving the report and

recommendation by filing a written objection with the clerk * * *. If either party timely

objects, the other party may file with the clerk a response within seven business days

after receiving the objection and send a copy of the response to the objecting party by

certified mail, return receipt requested.” Chillicothe CS timely filed its objections on

January 8, 2019. The Gazette received the objections via certified mail on

Case No. 2018-00950PQ -2- ENTRY

January 14, 2019, and timely filed its response on January 18, 2019. Chillicothe CS

raises the following two objections:

Objection 1: The Board objects to the Special Master’s recommendation

that it produce a copy of the October 13, 2017 letter from Attorney Sandra

McIntosh to the Board because that letter is protected by attorney-client

privilege.

{¶3} Chillicothe CS makes the following three arguments: (1) “both Attorney

McIntosh and the Board’s President, Steven Mullins, have submitted affidavits to the

Court that they understood all communications between them to be protected by the

attorney-client privilege because Attorney McIntosh was, at all relevant times, working

as the Board’s attorney;” (2) “the subject letter comes within the protection of the

attorney-client privilege;” and (3) “production of the subject letter is at odds with the

‘underlying policy of encouraging open communication’ between attorney and client.”

(Objections, p. 3). The Gazette argues that Chillicothe CS “offers no challenge to the

facts or the law supporting the Special Master’s decision. There is no basis then to

provide the relief Chillicothe seeks.” (Reply, p. 2).

{¶4} As an initial matter, this court explained that “a party who claims that an

exception applies is required to prove that the requested records fall squarely within the

exception by a preponderance of the evidence.” White v. ODRC, Court of Claims Case

No. 2018-00762PQ, January 10, 2019 Decision, p. 4. Thus, the court applies a

preponderance-of-the-evidence standard of proof relative to Chillicothe CS’s claim of an

exception to disclosure.

{¶5} The Supreme Court of Ohio stated: “[u]nder 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.’ Reed

v. Baxter (C.A.6, 1998), 134 F.3d 351, 355-356; Perfection Corp. v. Travelers Cas. &

Case No. 2018-00950PQ -3- ENTRY

Sur., 153 Ohio App.3d 28, 2003-Ohio-3358, 790 N.E.2d 817, ¶ 12. Except under

circumstances not relevant here, only the client can waive the privilege. * * * .” State ex

rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d

990, ¶ 21.

{¶6} Further, “the common-law attorney-client privilege * * * ‘reaches far beyond

a proscription against testimonial speech. The privilege protects against any

dissemination of information obtained in the confidential relationship.’” 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, ¶ 24 (citations omitted). The court also notes that in the

context of attorney-billing statements, the Supreme Court of Ohio stated that “[u]nder

the Public Records Act, insofar as these itemized attorney-billing statements contain

nonexempt information, e.g., the general title of the matter being handled, the dates the

services were performed, and the hours, rate, and money charged for the services, they

should have been disclosed to [appellant].” State ex rel. Anderson v. City of Vermilion,

134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 15.

{¶7} In this context, the court finds that the special master erred in finding that

“Chillicothe CS fail[ed] to meet its burden to support, or specifically assert, that this letter

was a communication pertaining to an attorney’s legal advice.” (Report and

Recommendation, p. 23). The court’s review of the October 13, 2017 letter reveals that

some of the information contains legal advice and guidance related to the

representation of Chillicothe CS. While the court agrees that not every communication

between attorney and client is privileged, the court finds here that the letter does contain

communication between a lawyer, Attorney McIntosh, and her client the Chillicothe CS

Board, that facilitates the rendition of legal services or advice.

{¶8} However, the court agrees with the special master that part of the content of

the letter is the Statement of Insured Client’s Rights provided in accordance with the

Ohio Rules of Professional Conduct. The Statement of Insured Client’s Rights is

Case No. 2018-00950PQ -4- ENTRY

verbatim from the Ohio Rules of Professional Conduct Pages 51-52. As such,

Chillicothe CS’s objection is SUSTAINED, in part, and the court ORDERS the October

13, 2017 letter to be produced to Gazette with the following redaction: Paragraphs 1

and 2 of Page 1 shall be redacted.

Objection 2: The copy of the e-mail dated November 1, 2017 from Liberty

Mutual to former Superintendent Jon Saxton is not subject to disclosure.

{¶9} Chillicothe CS argues that this e-mail is not subject to disclosure because it

falls within the scope of attorney work product. It claims that the e-mail was “a

document produced by the Board’s insurer, made part of the insurer’s claim file, and

subsequently transmitted to Attorney McIntosh for preparing a defense against a

possible lawsuit.” (Objections, p. 5). The Gazette argues that the special master

properly found that “the record contained no evidence that Chillicothe ever claimed that

the e-mail was subject to any exception to disclosure.” (Reply p. 2).

{¶10} However, the court relies on alternative grounds for finding error in the

special master’s decision. The public records request that resulted in the production of

the November 1, 2017 e-mail sought “all correspondence with the insurance carrier

related to Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh being retained

and throughout the retainer.” (Report and Recommendation, p.18). In his decision, the

special master determined that this request “is improperly ambiguous, overly broad, and

does not reasonably identify the records sought.” Id. at 20. Then, the special master

went on to discuss documents identified as responsive to the request, stating that “[i]n

response to the order of September 24, 2018, Chillicothe CS identified and filed under

seal two records it deems responsive to Request No. 5.” Id. at 21. One of those records

was the November 1, 2017 e-mail. The special master also cited the follow proposition

of law: “[a] public office’s voluntary effort to provide some responsive records,

notwithstanding overbreadth of the request, is considered favorably in evaluating its

Case No. 2018-00950PQ -5- ENTRY

response. State el rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906

N.E.2d 1105, ¶ 6, 14.” Id. pp. 20-21.

{¶11} However, Chillicothe CS did not provide the November 1, 2017 e-mail

voluntarily. Rather, it provided the e-mail in response to a court order from the special

master directing “Chillicothe CS to file a complete and unredacted copy of the following

documents (“responsive documents”). 1. All responsive ‘correspondence with the

insurance carrier related to Freund, Freeze & Arnold and/or attorney Sandra R.

McIntosh being retained and throughout the retainer.’ (Am. Compl. Exh. A at 1.).”

(September 24, 2018 Order of the Special Master). Thus, but for this order, Chillicothe

CS would not have produced the November 1, 2017 e-mail.

{¶12} Further, and upon independent review, the court agrees with the special

master that Request No. 5 is improperly ambiguous, overly broad, and does not

reasonably identify the records sought. However, after the special master made this

determination, the analysis should have ended. Therefore, the special master erred

when he continued his analysis and ordered production of the November 1, 2017 e-

mail. See State ex rel. Davila v. City of E. Liverpool, 7th Dist. Columbiana No. 10 CO

16, 2011-Ohio-1347; State ex rel. Todd v. City of Canfield, 7th Dist. Mahoning No. 11

MA 209, 2014-Ohio-569. As such, Chillicothe CS’s objection is SUSTAINED. The

Gazette is not entitled to the November 1, 2017 email.

{¶13} Upon review of the record, the special master’s report and

recommendation, Chillicothe CS’s objections, and Gazette’s response, the court finds

that the special master erred in ordering production of the full October 13, 2017 letter

and the November 1, 2017 e-mail. Therefore, Chillicothe CS objections are

SUSTAINED and the court adopts the special master’s report and recommendation, in

part, rejects in part, and modifies in part. The Chillicothe CS shall produce a copy of the

October 13, 2017 letter with the redactions outlined above. Court costs shall be split

Case No. 2018-00950PQ -6- ENTRY

equally between the parties. The clerk shall serve upon all parties notice of this

judgment and its date of entry upon the journal.

PATRICK M. MCGRATH

Judge

Filed February 5, 2019

Sent to S.C. Reporter 3/20/19