Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs.

[Cite as Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., 2020-Ohio-4856.]

THE CINCINNATI ENQUIRER, A Case No. 2019-00789PQ

DIVISION OF GANNETT GP MEDIA,

INC. Special Master Jeff Clark

Requester REPORT AND RECOMMENDATION

v.

HAMILTON COUNTY BOARD OF

COMMISSIONERS

Respondent

The Ohio Public Records Act (PRA)

{¶1} “Public records are one portal through which the people observe their

government, ensuring its accountability, integrity, and equity while minimizing sovereign

mischief and malfeasance.” Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846

N.E.2d 811, ¶ 16. “[T]he inherent, fundamental policy of R.C. 149.43 is to promote open

government, not restrict it.” State ex. rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396,

398, 732 N.E.2d 373 (2000) (“Besser II”). Public records inform the significant public

interest in the use of their tax money and other public funds. State ex rel. Toledo Blade

Co. v. Univ. of Toledo Foundation, 65 Ohio St.3d 258, 261-263, 602 N.E.2d 1159

(1992). Therefore, R.C. 149.43 must be construed 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; Besser II at 405.

Request for Communications of Public Officials Regarding Specific

Agreements, Including Real Estate Purchases and Leases

{¶2} On November 20, 2018, Sharon Coolidge, a reporter for requester

Cincinnati Enquirer, made a public records request to the administrator for respondent

Hamilton County Board of Commissioners (the Board), as follows:

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Pursuant to the Ohio Open Records Act (Ohio Rev. Code Ann. Sec.

149.43 to 149.44), I am writing to request emails related to the new

Bengals agreement that involves the concert venue and purchasing Hilltop

Concrete.

Specifically, I am writing to request copies of the following emails:

Date Range: October 1, 2018 — November 20, 2018

Subject: The CSO Concert Venue at the Banks; and/or Paul Brown

Stadium; and/or Hilltop Concrete or any subsidiary thereof

Sender: Jeff Alutto and/or Todd Portune, Chris Monzel, Denise Driehaus,

John Bruggen, Judi Boyko, Tom Gabelman

Recipient: Jeff Alutto and/or Todd Portune, Chris Monzel, Denise

Driehaus, John Bruggen, Judi Boyko, Tom Gabelman

(Complaint at 3.) Over three months passed. On March 6, 2019, the Board denied the

request in its entirety: “After reviewing our files, the only records we located specific to

your request are covered by attorney-client privilege and are therefore not subject to

release under the Ohio Public Records Act.” (Id. at 9.) After additional correspondence,

the Board provided the Enquirer with 275 pages of heavily redacted records, with only

email headers visible. The substantive content of each email, letter, press release and

other communication was obscured. (Id., Exhibit D.)

{¶3} On July 11, 2019, the Enquirer filed a complaint pursuant to R.C. 2743.75

alleging denial of access to public records in violation of R.C. 149.43(B). Following

unsuccessful mediation, the Board filed a combined response and motion to dismiss

(Response) on September 25, 2019. On October 9, 2019, the Board filed an unredacted

copy of the withheld records, under seal. On November 20, 2019, the Enquirer filed a

response to the motion to dismiss (Reply). On January 27, 2020, the Board filed a

privilege log regarding exemptions claimed for the withheld records. On April 8, 2020,

the Board filed a descriptive list of correspondents to the withheld emails. On April 28,

2020, the Enquirer filed a further response.

Motion to Dismiss

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{¶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. The unsupported conclusions of a complaint are,

however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v.

Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).

A. Failure to Provide Records Promptly

{¶5} “The primary duty of a public office when it has received a public-records

request is to promptly provide any responsive records within a reasonable amount of

time and when a records request is denied, to inform the requester of that denial and

provide the reasons for that denial. R.C. 149.43(B)(1) and (3).” State ex rel. Cordell v.

Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11. Timeliness is

important because “[w]hen records are available for public inspection and copying is

often as important as what records are available.” (Emphasis sic.) (Citations omitted.)

State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58,

2002-Ohio-5311, 776 N.E.2d 82, ¶ 34. This is often significant for media reporters. Id. at

¶ 45. Whether a public office has complied with its duty to respond within a “reasonable

period of time” is evaluated based on the pertinent facts and circumstances of each

case. State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110,

123 N.E.3d 895, ¶ 19-20, 26-27. The requester bears the burden of demonstrating that

the public office’s response was unreasonably delayed. Cordell at 12.

{¶6} The Board asks the court to dismiss the claim that it violated the

requirement of R.C. 149.43(B)(1) to provide copies of public records “within a

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reasonable period of time.” However, the Board admits that it did not respond to the

request from November 20, 2018 until March 5, 2019. (Response at 3; Complaint,

Greiner Aff. – Exh. B.) The only explanation offered is: “The Respondent misplaced the

request and completely forgot that it was made.” (Response at 12.) This statement

amounts to an admission of negligence rather than support for a legal defense. I find

that the absence of any response for three and a half months, without justification,

constituted a violation of the timely response requirement in R.C. 149.43(B)(1). Cordell

at ¶ 13-14; State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7

N.E.3d 1136, ¶ 20-21 (two months without any response constituted unreasonable

delay). Moreover, the Board’s initial delay had the follow-on effect of delaying the later

partial production of redacted records (on May 17, 2019) far beyond a reasonable

period of time. (Response at 3-4.) This constituted a further violation of both R.C.

149.43(B)(1) and (B)(7).

{¶7} Public offices are required to organize their offices and employ their staff in

such a way as to be able to make records available when requested. R.C.

149.43(B)(2);1 State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio

St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 36; State ex rel. Beacon Journal Pub.

Co. v. Andrews, 48 Ohio St.2d 283, 289, 2 Ohio Op.3d 434, 358 N.E.2d 565 (1976).

The statutory requirement of organization implies capable administrative management

of receipt, logging, processing, and response for public records requests. The Board

cites no case precedent accepting inadvertence or neglect is a valid defense to an

untimely response. The Supreme Court routinely rejects similar excuses for delay such

as scarce resources, expense, time involved, or interference with other duties. State ex

rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53-54, 689 N.E.2d 25 (1998); Toledo Blade v.

Seneca Cty. Bd. of Commrs. at ¶ 36; Beacon Journal v. Andrews at 289. In State ex rel.

1 “To facilitate broader access to public records, a public office or the person responsible for

public records shall organize and maintain public records in a manner that they can be made available for

inspection or copying in accordance with division (B) of this section.” R.C. 149.43(B)(2).

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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, the respondent alleged “that its failure to respond in a timely

manner to the request was inadvertent and unintentional.” Id. at ¶ 31. The Supreme

Court declined to allow “inadvertence” to excuse respondent’s violation of its obligation

to timely respond. Id. at ¶ 31-33, 43-45. I find that the Board’s delay of more than three

months in making any response to the written request was not excused by its own

misplacement and forgetfulness.

{¶8} The Board further argues as mitigation that when the Enquirer challenged its

lengthy initial delay on February 28, 2020, it quickly reviewed the records and advised

that the entire request was denied. However, this demonstrated ability to evaluate and

deliver a response in six days only undermines the Board’s assertion that three months

was a reasonable period of time to respond. See Wadd at 53 (City’s concession of its

capabilities undermined the assertion that records were provided timely). Finally, the

record evidences that the Board chose, at that time, to redact essentially all content

other than header information from the communications – a minimally time-consuming

task. Based on these facts and circumstances, I find that the Board failed to provide the

requested records, or to inform Coolidge of denial, within a reasonable period of time

after the request was made.

B. Drafts are Records

The Board states that the requested emails “contained draft documents exempt from

disclosure.” (Response at 7-9.) However, all documents that a public office uses to

document its activities are “records” of the office, even if in preliminary or draft form.

See, e.g., Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20;

State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 232, 729 N.E.2d 1182

(2000); State ex rel. Post v. Schweikert, 38 Ohio St.3d 170, 172-173, 527 N.E.2d 1230

(1988). Specifically, there is no exemption or defense as “non-record” for draft

proposals exchanged in the process of negotiating a contract. State ex rel. Cincinnati

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Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 12-14, 18-

21 (settlement proposal). The Board provides no authority to the contrary, arguing only

that it would prefer not to disclose records of its negotiations. The Supreme Court has

rejected withholding of public records based solely on a public office’s policy preference.

State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Edn., 97 Ohio St.3d

58, 2002 Ohio 5311, P54, 776 N.E.2d 82 at ¶ 21. Accord State ex rel. WBNS TV, Inc. v.

Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 37. The Board’s

responsive draft documents are thus records that must be produced, except to the

extent that any portion of a draft is subject to a public record exemption.

{¶9} The Board alleges that some drafts have been “discarded or replaced.” By

statute, public offices are only required to retain records that are necessary to document

the activities of the office. R.C. 149.40. Thus, any drafts that the Board properly

disposed of prior to Coolidge’s request need not be produced. State ex rel. Glasgow v.

Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 24, fn. 1. However, this

defense is not available for any drafts that were disposed of improperly, e.g., after

Coolidge’s request was received. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of

Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961. I find the Board has

not provided any evidence, or even asserted, that it properly disposed of any responsive

drafts that existed at the time of the Enquirer’s request.

{¶10} I recommend that the court deny the Board’s motion to dismiss the claim

for production of draft documents kept by the Board at the time of the request.

C. Scope of Requests

{¶11} The Board pleads that it was confused prior to litigation as to whether the

Enquirer had agreed to accept documents with all content other than headers redacted,

rather than agreeing only to redaction of specific content for which a valid public records

exemption was claimed. (Response at 4-5.) The Enquirer attests that it had accepted no

such limitation on its request. (Reply, Greiner Aff. at ¶ 6, 8-9.)

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{¶12} The Board stops short of claiming that the documentary response based on

this alleged misunderstanding renders the claim for production moot, and to the extent

that the Board appears to offer the misunderstanding as grounds for dismissal I

recommend that the court deny the motion.

D. Assertion of Improperly Ambiguous Request

{¶13} The Board states that Coolidge’s request for topical email involving

senders Jeff Alutto, “and/or” six other names; and recipients Jeff Alutto, “and/or” the

same six names,

is vague and ambiguous as to what is meant by sender and recipient. It is

unclear whether the request is for emails only between those individuals,

or for any emails sent by any one of those individuals, or for any emails

received by any one of those individuals. * * * To the extent that the emails

are not between the exact list of senders and recipients, the emails are out

of scope of the request and are not required to be produced.

(Response at 11-12.) However, a requester need only make a request such that the

public office can reasonably identify what public records are being requested. R.C.

149.43(B)(2). Perfection is not required in a public records request, “particularly where,

as here, it is evident that the public office was aware of the specific records requested.”

State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d

1208, ¶ 37. Applying common grammar to the request, Coolidge gave the Board a list of

correspondents from among whom she sought email, on a specific subject, over a short

period of time. See State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22,

2018-Ohio-5110, 123 N.E.3d 895, ¶ 26. The Board’s alternate readings – that she might

be seeking only email with no “extraneous” correspondents, or only those where one of

the list was a solo sender or recipient – are not justified by the request’s wording,

context, or any other indication that Coolidge was not seeking all topical emails

involving those on the list.

{¶14} Further, if the Board had found this aspect of the request vague and

ambiguous, it was under a mandatory duty to offer Coolidge an opportunity to revise the

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request, after explaining to her how the Board organized and accessed its email

records. R.C. 149.43(B)(2). The Board did not advise Coolidge prior to litigation that it

found the request vague or ambiguous, or invite revision of the request, and later filed

records with the court that included additional correspondents, recognizing that these

were potentially responsive to the request. (Respondent’s Sept. 19, 2019 Motion for

Extension of Time to Provide Court Ordered Documents at 3.)

{¶15} I recommend the court deny the motion to dismiss on the grounds that any

of the records submitted under seal were not within the scope of the request.

E. Assertion of Attorney-Client Communication Privilege, Attorney

Work Product, and Trade Secret Exceptions

{¶16} The remainder of the Board’s response asserts public records exceptions

based on the attorney-client privilege, attorney work product, and trade secret

information. On review, the complaint neither concedes nor demonstrates that the

requested documents are subject to these exceptions. Therefore, to the extent the

Board intends to assert these as a motion to dismiss, I recommend that the court deny

the motion as to these defenses, and determine the claim on the merits.

Burdens of Proof

{¶17} In an action to enforce Ohio’s Public Records Act (PRA), the burden is on

the requester to prove an alleged violation. In mandamus enforcement actions,

[a]lthough the PRA is accorded liberal construction in favor of access to

public records, “the relator must still establish entitlement to the requested

extraordinary relief by clear and convincing evidence.”

State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d

598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by

clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153

¶ 27-30 (5th Dist.).

{¶18} However, when a public office asserts any exception to the release of

records under the Act, the burden of proving the exception rests on the public office.

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State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office, 153 Ohio St.3d 63, 2017-

Ohio-8988, 101 N.E.3d 396, ¶ 15. 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. A custodian does not meet

this burden if it has not proven that the requested records fall squarely within the

exception. Id.; State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81,

2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. 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).

Exceptions Abandoned Where Not Asserted

{¶19} The Board makes general assertions that the contents of the withheld

records were exempt entirely or in part as attorney-client privileged communication,

attorney work product, and/or trade secret information. The special master ordered the

Board to file a privilege log detailing the portions of each withheld record to which it

asserts each exception applies. To the extent the Board’s privilege log limits application

of an exception to specific pages, paragraphs, or information in the withheld records,

that exception is no longer asserted against disclosure of the remainder of the withheld

content. 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, ¶ 19; State ex rel. Plain Dealer v. Ohio

Dept. of Ins., 80 Ohio St.3d 513, 525, 687 N.E.2d 661 (1997).

Attorney-Client Privilege

{¶20} “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

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292, 2016-Ohio-2974, ¶ 9; MA Equip. Leasing I, LLC v. Tilton, 10th Dist. Franklin Nos.

12AP-564 and 12AP-586, 2012-Ohio-4668, ¶ 20-22. 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. A bare, general assertion that the privilege applies to

communications does not meet the proponent’s burden. Rather,

The claim of privilege must be made question-by-question and document-

by-document.

Factual showing needed to demonstrate that a communications [sic]

is privileged. Conclusory descriptions of documents in a privilege log are

insufficient to meet the producing party’s burden of establishing that the

document was an attorney-client communication. 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). 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.” Id. 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.

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) (proponent

made only conclusory statements, rather than an actual showing, that the attorney-client

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privilege applied to subpoenaed documents).2 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 respondent cite any support

for the proposition that non-legal documents, such as press releases, become privileged

communications merely because they are reviewed by, or copied to, an attorney.

{¶21} The Board summarizes its assertion of attorney-client privilege in this case

as follows:

The issue underlying this request deals with a very complicated lease

negotiation and real property acquisition by the Respondent.

Communication between attorneys and the parties related to this

negotiation are necessary to move the negotiation forward. While any

action taken by the public body must be performed in public, the

negotiation, including discussions with attorneys, at times, must be

conducted under the privilege. The fact that communications related to

legal services occurred between attorney and client, and on behalf of the

client to parties who share a common interest is enough to exempt the

documents from disclosure.

(Response at 7.) As discussed below, the Board fails to support this assertion with

adequate evidence.

Evidence That Communication Related to Legal Advice

{¶22} In order to elicit evidence regarding the Board’s claim of privilege, the

special master issued an order requiring the Board to provide the following detailed

information regarding each withheld communication:

b. For each separate record submitted under seal, respondent shall:

i. Identify the correspondence by sender, date, and time sent;

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).

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ii. Identify by paragraph, line, and word, as appropriate, only those

portions of the email or attachment that are alleged to meet the definition

of attorney-client privileged material;

iii. For each portion so identified, describe the nature of the legal issue for

which advice was being sought or provided, or how the communication

was otherwise incident to or related to any legal advice;

iv. Support application of the elements of the attorney-client privilege to

each identified portion, including by affidavit as appropriate.

(September 13, 2019 Order.) The Board’s resulting privilege log, submitted in final form

on January 27, 2020, contains general, conclusory descriptions of withheld emails and

attachments, and bare assertions that the content of each email was protected by

attorney-client privilege in its entirety. (Privilege Log – see columns titled Privileged

Material Location, and Privileged Explanation.) The Board filed supporting affidavits of

its counsel on the same date, that contained no greater detail. Neither the affidavits nor

the privilege log identifies with specificity what particular content in any withheld

document is a confidential attorney-client communication, or why. In most instances, the

Board states only that the entire content of the correspondence is a “communication”

involving counsel, or a “discussion” of the general topic of “negotiations,” a “press

release,” or “talking points,” “announcement of new lease amendment,” “joint

statement,” a “draft document describing the negotiations,” “negotiation matrix,” and

other publicity, strategic, and tactical, but not legal, matters. These documents do not

contain any detailed, specific explanation as to how each communication’s content is

related to legal advice. See Pietrangelo at ¶ 11-17. The special master additionally

reviewed the withheld documents in camera for any material that might self-evidently

meet the definition of attorney-client privileged material.

{¶23} In a separate order, the special master invited the Board to explain the

identity and role of each correspondent to the withheld communications, including:

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2. The nature of legal representation being provided at the time of the

subject correspondence by each person who respondent asserts was

giving or obtaining information subject to the attorney-client privilege

through the correspondence.

3. The formal basis of the attorney-client relationship for every

correspondent who respondent asserts was providing advice or gathering

information in the role of a legal counsel to respondent.

(March 25, 2020 Order at 1.) In a list filed on April 8, 2020, the Board provided the

following information regarding its outside legal counsel:

Nature of Legal Representation

Mr. Gabelman, and the law firm of Frost Brown Todd (“FBT”), were

engaged to act as outside legal counsel for the Board of County

Commissioners for Hamilton County. The particular emphasis of this

representation was for the negotiation of agreements pertaining to the

redevelopment of the riverfront, including the development of The Banks

project along the Ohio River. All correspondence and documentation

generated by Mr. Gabelman and/or the FBT attorneys represent attorney-

client privileged communications and/or attorney work product which are

the subject of specific request in this pending matter. Such request

pertains to communications and work product documentation regarding

the negotiation of numerous agreements regarding the development of

The Banks Project, including the negotiation of numerous agreements

relating to the development of a music venue, the acquisition of riverfront

property by Hamilton County, as well as lease negotiations between

Hamilton County and the Cincinnati Bengals. Such negotiations also

pertained to Hamilton County and Cincinnati Bengals development of a

funding and financing structure with respect to the acquisition of real

property on the Cincinnati riverfront.

Formal Basis for Attorney Client Privilege

Mr. Gabelman and the law firm of Frost Brown Todd, were retained as

outside legal counsel to assist the Hamilton County Board of County

Commissioners and Hamilton County Prosecuting Attorney's Office to

develop property on the riverfront known as The Banks, as well as

negotiate various agreements with the City of Cincinnati, the Cincinnati

Reds, the Cincinnati Bengals, US Bank Arena, the National Underground

Railroad Freedom Center, and various developers on The Banks.

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Hamilton County Board of County Commissioners entered into an

agreement for such legal counsel services in 1997.

(April 8, 2020 List at 1.) The first paragraph describes Mr. Gabelman’s role as a

negotiator of agreements for the Board, and makes a bare assertion that any and all

requested communications by Mr. Gabelman or his firm regarding those negotiations

are attorney-client privileged communications. The second paragraph states that Mr.

Gabelman and his firm were retained as legal counsel to assist the Board in property

development and to “negotiate various agreements.” The Board did not provide the

terms of Mr. Gabelman’s 1997 agreement for his legal counsel services. Neither

paragraph specifies any legal issue for which Mr. Gabelman provided or facilitated legal

advice through the withheld communications.

{¶24} The description of Assistant Prosecuting Attorney Roger Friedmann’s role

is functionally identical to Mr. Gabelman’s:

Nature of Legal Representation

Mr. Friedmann is an Assistant Prosecuting Attorney for the Hamilton

County Prosecutor's Office. Among his various roles, Mr. Friedmann is the

lead attorney for the Prosecutor's Office on negotiations relating to

property acquisition by Hamilton County, The Banks development and

lease negotiations with the Cincinnati Bengals regarding the lease for the

development and operation of Paul Brown Stadium, and property

acquisition related issues.

Formal Basis for Attorney Client Privilege

The Hamilton County Prosecuting Attorney is the statutory Legal Adviser

to the Hamilton County Board of County Commissioners.

(Id. at 2.) The description of Mr. Friedmann’s representation is as a negotiator, not a

provider of legal advice on any reasonably specified issue. The list of correspondents in

fact draws no meaningful distinction between the roles of these attorneys, and of their

clients - all described as involved in negotiating agreements on behalf of the Board.

{¶25} The affidavits of Messrs. Gabelman and Friedmann filed on January 27,

2020 do not identify any legal issues on which advice was sought or given in the

Case No. 2019-00789PQ -15- REPORT AND RECOMMENDATION

withheld communications, referring only to the affiants’ roles as negotiators. (e.g.,

Friedmann Aff. at ¶ 7, 11-19; Gabelman Aff. at ¶ 7, 9-16.) The bare statements of

counsel that they “believed” all their communications were privileged, confidential,3 and

not waived (Freidmann Aff. at ¶ 7-8, 11; Gabelman Aff. at ¶ 7-9) is not sufficient, and

only highlights the absence of evidence that any legal advice was sought or given in the

text of these communications on particular legal issues.

{¶26} The evidence shows only that the Board used its attorneys as negotiators,

and included or copied them on discussions of contractual terms and meeting

scheduling. That evidence, by itself, falls far short of proving that the substantive

content of the communications falls squarely under the attorney-client privilege. In

contrast, in 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 the respondent contracted with an

attorney to identify and investigate the factual and legal issues concerning allegations

that its president had committed improper, possibly criminal acts. Id. at ¶ 4, 29.

Respondent submitted affidavits of the Port Authority Board Chairman and its attorney.

The Supreme Court was provided with the legal issues on which advice was provided,

and how that advice was evidenced in resulting documents:

Both the port authority and its outside counsel knew that the investigation

was replete with various legal issues and consequences that would be

better resolved by the port authority's employing its long-time attorney to

conduct the investigation and prepare the report. Legal issues included

interpretation of Hartung's employment contract, an analysis of ethics law

and criminal law, potential tort claims by Hartung and Teigland, and the

construction of a confidentiality provision in the settlement agreement

3 Counsel’s assertions that they “made and received these communications in confidence”

include no description of control exercised over recipient copies. One counsel admits using his personal

email account for some of the communications. Compare Toledo-Lucas County Port Auth. at ¶ 5

(numbered copies of report given to board members in sealed envelopes during executive sessions and

were later returned to the law firm. Members were informed that the report was confidential and could not

be shown to any third party). The Enquirer disputes the confidentiality of email shared with third parties,

including a public relations consultant, but not those limited to Board employees and counsel.

Case No. 2019-00789PQ -16- REPORT AND RECOMMENDATION

concerning a previous port authority investigation. Legal analysis related

to the facts in the investigation is integrated throughout the report.

(Id. at ¶ 29.)

{¶27} The pleadings and affidavits filed in this case by the Hamilton County

Board of Commissioners do not present comparable testimony or documentation

supporting attorney-client privilege. The special master recognizes that, hypothetically,

the text of a communication might not relate on its face to legal advice without additional

explanation and context. To that end, as noted above, the Board was invited to submit

specific support for its assertion of attorney-client privilege. In response, the Board

failed to provide any additional evidence that its attorneys actually rendered legal

advice, or that any specific communication reflected the attorneys’ “professional skills

and judgment.” Id. at ¶ 27, 31. “[I]f a communication between a lawyer and client would

facilitate the rendition of legal services or advice, the communication is privileged.” Id. at

¶ 27. However, almost all the correspondence in this case reflects only the participation

of legal counsel in policy, negotiation of terms, scheduling, or other business decisions

that do not directly involve their professional services. See Williams v. Duke Energy

Corp., S.D.Ohio No. 1:08-CV-00046, 2014 U.S. Dist. LEXIS 109835, *15-16

(Aug. 8, 2014).

Communications to a lawyer for business purposes are not privileged.

Documents prepared and emailed for review by both legal and nonlegal

employees are often held to be not privileged because the

communications were not made for the primary purpose of seeking legal

advice. North Carolina Elec. Membership Corp. v. Carolina Power & Light

Co., 110 F.R.D. 511, 514 (M.D. N.C. 1986). Documents whose “primary

purpose” was “business negotiations” rather than “legal advice” are not

privileged. United States v. Davis, 131 F.R.D. 391, 401 (S.D. N.Y. 1990).

Id. at *8 (see *41-88 for application to case documents including email). See Hinners v.

Huron, Ct. of Cl. 2018-00549PQ, 2018-Ohio-3652, ¶ 10 (“[T]he general statement that

an attorney was ‘utilized’ ‘to advise’ ‘on matters of real estate acquisition, negotiation

Case No. 2019-00789PQ -17- REPORT AND RECOMMENDATION

and development’ falls short of clear proof that the attorney was providing legal advice

in any particular correspondence related to those matters.”). Likewise, outlining

business matters such as whether a meeting is planned or has occurred does not

constitute attorney-client communication. McFarland v. West Congregation of Jehovah’s

Witnesses, Lorain, OH, Inc., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 70 (9th Dist.).

{¶28} I find that the Board’s assertions of attorney-client privilege are based

solely on conclusory descriptions and statements. Neither the affidavits nor the privilege

log meets the Board’s minimal burden to identify and explain the nature of any legal

issue upon which advice was sought or provided through a given communication.

Williams v. Duke Energy Corp. at *14-15.

Disclosure of Communication to Non-Essential Third Party

{¶29} Separately, the assertion of privilege has been waived for many of the

withheld communications. “[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. Hollingsworth v.

Time Warner Cable, 157 Ohio App.3d 539, 2004-Ohio-3130, ¶ 65, 812

N.E.2d 976 (1st Dist.), citing Mid-Am. Nat’l Bank & Trust Co. v. Cincinnati

Ins. Co., 74 Ohio App. 3d 481, 599 N.E.2d 699 (6th Dist.1991), and United

States v. Skeddle, 989 F.Supp. 905, 908 (N.D.Ohio 1997). See also In re

Teleglobe Communications Corp. v. BCE Inc., 493 F.3d 345, 361 (3d

Cir.2007) (“Disclosing a communication to a third party unquestionably

waives the privilege.”).

MA Equip. Leasing I, LLC v. Tilton, 980 N.E.2d 1072, 2012-Ohio-4668, ¶ 20 (10th Dist.).

In addition to communications directly shared, disclosure to a third party waives the

claim of privilege with regard to all other communications on the same subject matter.

Case No. 2019-00789PQ -18- REPORT AND RECOMMENDATION

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.

{¶30} 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. MA

Equip. Leasing at ¶ 21-22. On review of the evidence submitted I find, first, that certain

correspondence included a communications and public relations consultant retained by

the Board, Anne C. Sesler (Correspondent List at 5), as a correspondent. The Board

provides no explanation as to how Ms. Sesler’s participation was essential to the

provision of legal advice. There is no evidence as to how her inclusion in any

communication of legal advice was necessary, as opposed to merely convenient. See

Foulk v. Upper Arlington, Ct. of Cl. No. 2017-00132PQ, 2017-Ohio-4249, ¶ 20-21, and

cases cited therein. I find that the attorney-client privilege either did not attach, or was

waived, for those communications in which Ms. Sesler was included as a party

correspondent.

{¶31} Next, certain withheld records (Bates Nos. 277-381) include as

correspondents one or more employees of an entirely separate, private entity, the

Cincinnati Bengals organization. The Board asserts that the attorney-client privilege

applies to these communications because they involved negotiation of real estate

matters on which the Board’s counsel were providing legal advice to the Board.

However, under the cases cited above, disclosure of information to a third party waives

the privilege, even assuming, arguendo, that the Board had shown its counsel provided

it with legal advice on the matter. Indeed, the concept of waiver assumes that there was

something to waive. The Board cites no authority to the contrary.

{¶32} Finally, internal communications from a client to an attorney, conveying

authority to act on the client’s behalf in entering into an agreement, are by their nature

not intended to be confidential and are not privileged.

The purpose of the privilege is to permit complete freedom of disclosure

by a client to his attorney without fear that any facts so disclosed will be

Case No. 2019-00789PQ -19- REPORT AND RECOMMENDATION

used against him. Where the communication is not intended to be

confidential, it is not within the privilege. Taylor v. Sheldon (1961), 172

Ohio St. 118 [15 O.O.2d 206]; Emley v. Selepchak (1945), 76 Ohio App.

257 [31 O.O. 558]. By its very nature, a communication from a client to his

attorney conveying authority to the attorney to act on his behalf as his

agent in entering into an agreement with the opposing party, is a

communication which is intended to be communicated to the opposing

party. Because such a conversation is not intended to be confidential, it is

not privileged. See In re Martin (1943), 141 Ohio St. 87, at 104 [25 O.O.

225].

Walsh v. Barcelona Associates, Inc., 16 Ohio App.3d 470, 472, 476 N.E.2d 1090 (10th

Dist.1984). Accord Lutz v. Carter, 2nd Dist. Clark No. No. 2660, 1990 Ohio App. LEXIS

4342, *12 (Oct. 3, 1990); Cannell v. Rhodes, 31 Ohio App.3d 183, 186, 509 N.E.2d 963

(8th Dist.1986). The privilege has been waived for such documents.

Common Interest

{¶33} The Board asserts that the privilege was not waived for correspondence

that included counsel and employees of the Cincinnati Bengals organization, because of

the “common interest” doctrine.

[T]he common interest doctrine operates as an exception to the general

rule that disclosure of privileged materials to a third party waives the

privilege. This exception typically arises when parties “‘are either

represented by the same attorney or are individually represented, but

have the same goal in litigation.’” William F. Shea, LLC v. Bonutti

Research, Inc., S.D.Ohio No. 2:10-CV-615, 2013 U.S. Dist. LEXIS 48819,

*5-6 (Apr. 4, 2013), quoting Cooey v. Strickland, 269 F.R.D. 643, 652

(S.D.Ohio 2010).

Condos. at Stonebridge Owners’ Assn. v. K&D Group, Inc., 8th Dist. Cuyahoga No.

100261, 2014-Ohio-503, ¶ 10-16.

Apparently, the so-called “common interest privilege” of the attorney-client

privilege is succinctly set forth in McCormick on Evidence (6 Ed.2006)

413-414, Section 91.1:

Another step beyond the joint client situation is the instance

where two or more clients, each represented by their own

Case No. 2019-00789PQ -20- REPORT AND RECOMMENDATION

lawyers, meet to discuss matters of common interest-

commonly called a joint defense agreement or pooled

information situation. Such communications among the

clients and their lawyers are within the privilege. Although it

originated in the context of criminal cases, the doctrine has

been applied in civil cases and to plaintiffs in litigation as well

as defendants. * * *

State ex rel. Bardwell v. Cordray, 181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d

504, ¶ 87 (10th Dist.).

To fall within the common interest exception, it must be shown that “(1) the

communications were made in the course of a joint defense effort; [and]

(2) the statements were designed to further the effort * * *.” Travelers Cas.

and Sur. Co. v. Excess Ins. Co. Ltd., 197 F.R.D. 601, 606 (S.D.Oh. 2000),

quoting In re Bevill, Bresler & Schulman Asset Management Corp., 805

F.2d 120, 126 (3d Cir.1986). The common interest exception should be

construed narrowly. Cigna Ins. Co. v. Cooper Tires and Rubber, Inc.,

N.D.Ohio No. 3:99CV7397, 2001 WL 640703, *2 (May 24,

2001). Therefore, the exception will only apply where the “disclosures are

made in the course of formulating a common legal strategy.” (Internal

quotations and citations omitted.) Id.

Buckeye Corrugated, Inc. v. Cincinnati Ins. Co., 9th Dist. Summit No. 26634, 2013-

Ohio-3508, ¶ 15.

{¶34} On the evidence submitted, I find that the Board’s and the Cincinnati

Bengals’ interests were not aligned in these negotiations. The two entities were not

jointly pursuing or defending litigation, were not represented by the same attorney, were

not formulating a common “legal strategy,” and in the event of dispute over the

agreements they entered might instead be opposing parties. The Board was involved in

an arm’s-length negotiation with an independent, private entity represented by its own

counsel to negotiate their respective costs and other consideration in entering

agreements and acquiring property. I find that the Board has provided no support for the

proposition that negotiating any relevant agreement constituted a “common interest” so

as to preclude waiver of the attorney-client privilege.

Case No. 2019-00789PQ -21- REPORT AND RECOMMENDATION

{¶35} I therefore find that the Board waived the attorney-client privilege with

respect to all communications and attachments sent to and received from Bengals’

counsel and/or employees in the course of their negotiations.

{¶36} On the basis of the evidence before the court, or lack thereof, regarding

identification of legal issues, confidentiality, and disclosure to third parties, I conclude

that the Board has not shown that the withheld communications fall squarely within the

common law attorney-client communication privilege,4

Attorney Work Product

{¶37} The Board separately asserts that the withheld material is excepted from

disclosure as common law attorney work product. The party seeking protection under

the work-product doctrine bears the burden of establishing that the doctrine applies. In

re Special Grand Jury Investigation, 2019-Ohio-4014, 145 N.E.3d 1206, ¶ 12 (10th

Dist.). The Supreme Court of Ohio has explained work product protection as follows:

The work-product doctrine emanates from Hickman v. Taylor

(1947), 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451, in which the

Supreme Court of the United States recognized that “[p]roper preparation

of a client’s case demands that [the attorney] assemble information, sift

what he considers to be the relevant from the irrelevant facts, prepare his

legal theories and plan his strategy without undue and needless

interference. * * * This work is reflected, of course, in interviews,

statements, memoranda, correspondence, briefs, mental impressions,

personal beliefs, and countless other tangible and intangible ways - aptly

though roughly termed by the Circuit Court of Appeals in this case as the

‘Work product of the lawyer.’ Were such materials open to opposing

counsel on mere demand, much of what is now put down in writing would

remain unwritten. An attorney’s thoughts, heretofore inviolate, would not

be his own. Inefficiency, unfairness and sharp practices would inevitably

develop in the giving of legal advice and in the preparation of cases for

trial. The effect on the legal profession would be demoralizing. And the

interests of the clients and the cause of justice would be poorly served.”

Addressing these concerns, the work-product doctrine provides a

qualified privilege protecting the attorney’s mental processes in

4 With the few exceptions noted in the table of permitted exemptions, below.

Case No. 2019-00789PQ -22- REPORT AND RECOMMENDATION

preparation of litigation, establishing “a zone of privacy in which lawyers

can analyze and prepare their client’s case free from scrutiny or

interference by an adversary.” However, as the Supreme Court of the

United States has explained, “the doctrine is an intensely practical one,

grounded in the realities of litigation in our adversary system,” and the

privilege afforded by the work-product doctrine is not absolute.

Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp, 127 Ohio St.3d 161,

2010-Ohio-4469, 937 N.E.2d 53, ¶ 54-55 (internal citations omitted). Thus, the two

elements of common law attorney work-product are: 1) the document must be a product

of the respondent’s attorney’s mental processes, and 2) have been made in anticipation

of litigation.

{¶38} On review of the pleadings, affidavits, privilege log, correspondent list, and

materials submitted under seal, I find that a number of the communications involving

Board attorneys do not appear to have been drafted by or in consultation with Board

counsel so as to reflect the attorney’s mental processes. But more importantly, and

dispositive as to all the withheld records, nowhere in its pleadings, affidavits, privilege

log, or correspondent list does the Board assert that any of the records were created in

anticipation of litigation. To determine whether a document was prepared “in anticipation

of litigation,” the court must evaluate “whether the document was created because of a

party’s subjective anticipation of litigation, as contrasted with an ordinary business

purpose.” (Citation omitted.) In re Special Grand Jury Investigation at ¶ 13. In the few

instances where one Board attorney communicated legal advice it was transactional in

nature, not in anticipation of litigation.

{¶39} Accordingly, I find that the Board has not met its burden to show that any of

the withheld records were subject to the common law attorney work product privilege.

Ohio Uniform Trade Secrets Act

{¶40} A public office’s own trade secret, in its possession, is a record the release

of which is prohibited by state or federal law. State ex rel. Luken v. Corp. for Findlay

Mkt. of Cincinnati, 135 Ohio St.3d 416, 420, 2015-Ohio-1532, 988 N.E.2d 546, ¶ 17.

Case No. 2019-00789PQ -23- REPORT AND RECOMMENDATION

See State ex rel. Perrea v. Cincinnati Pub. Sch., 123 Ohio St.3d. 410, 2009-Ohio-4762,

916 N.E.2d 1049, ¶ 19. An in camera inspection is usually necessary to determine the

merits of a trade secret claim. State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d

535, 541-542, 721 N.E.2d 1044 (2000) (“Besser I”). The Ohio Uniform Trade Secrets

Act defines “trade secret” as:

information, including the whole or any portion or phase of any scientific or

technical information, design, process, procedure, formula, pattern,

compilation, program, device, method, technique, or improvement, or any

business information or plans, financial information, or listing of names,

addresses, or telephone numbers, that satisfies both of the following:

(1) It derives independent economic value, actual or potential, from not

being generally known to, and not being readily ascertainable by proper

means by, other persons who can obtain economic value from its

disclosure or use.

(2) It is the subject of efforts that are reasonable under the circumstances

to maintain its secrecy.

R.C. 1333.61(D).

{¶41} “An entity claiming trade secret status bears the burden to identify and

demonstrate that the material is included in categories of protected information under

the statute and additionally must take some active steps to maintain its secrecy.” Besser

II, 89 Ohio St.3d 396, 400, 732 N.E.2d 373 (2000). To meet this burden, the entity must

provide more than conclusory statements in affidavits to show which, if any, information

is a “trade secret.” Id. at 400-404. Accord Harris v. Belvoir Energy, Inc., 8th Dist.

Cuyahoga No. 103460, 2017-Ohio-2851, ¶ 16; Arnos v. MedCorp, Inc., 6th Dist. Lucas

No. L-09-1248, 2010-Ohio-1883, ¶ 28. The following factors are used in trade secret

analysis:

(1) The extent to which the information is known outside the business;

(2) the extent to which it is known to those inside the business, i.e., by the

employees; (3) the precautions taken by the holder of the trade secret to

guard the secrecy of the information; (4) the savings effected and the

value to the holder in having the information as against competitors;

Case No. 2019-00789PQ -24- REPORT AND RECOMMENDATION

(5) the amount of effort or money expended in obtaining and developing

the information; and (6) the amount of time and expense it would take for

others to acquire and duplicate the information.

Besser II at 399-400. In support of its burden in this case, the Board asserts that,

[t]he trade secret information relates to a complicated lease negotiation

and potential real property acquisition. The information is not known

outside of the Board, except by those whom the Board is directly dealing

with in this negotiation. Only those at the Board who are involved in the

negotiation know about this information. And this dissemination to third

parties does not invalidate the trade secret nature of the information, as

the owner of the trade secret can determine with whom they want to share

the trade secret information. State, ex rel. Allright Parking of Cleveland,

Inc., v. Cleveland, 63 Ohio St.3d 772, 775 (1992). The Board has taken

great steps to guard the secrecy of this information, including withholding

it from the Requester and the public at this time. The information, if made

public, would cause price increases and competitive disadvantages and

would result in a detrimental economic impact to the Board and Hamilton

County ratepayers as a whole. The information was obtained through

many months of negotiation and work and if disseminated widely would

threaten that work. Finally, it is not clear that others could duplicate the

work needed to obtain this information.

(Response at 10.) However, standing alone these are merely general, unquantified

assertions of the Besser factors.

{¶42} To elicit further evidence, the special master ordered the Board to file the

unredacted communications under seal, and state with specificity what parts the Board

can show are trade secret. In its privilege log, the Board claims that the following pages

of the withheld records contain its own trade secrets: 132-133, 135-136, 138-139, 304-

311, 335-342, 347-360, 364-371, and 375-381. The affidavits of Board counsel (April 8,

2020 Friedmann Aff. at ¶ 18-23; Gabelman Aff. at ¶ 18-23) assert generally that the

records contain information that meets the trade secret factors, but provide no specifics

as to how. Neither do the affidavits of Board counsel establish expertise in the areas of

finance and financial models, which are the only categories of information referenced in

the privilege log as “trade secret.” I find that the Board provides no more than

Case No. 2019-00789PQ -25- REPORT AND RECOMMENDATION

conclusory statements in affidavits to show which, if any, information is a “trade secret.”

Besser II at 400-404.

Application of Besser Factors

(1) The extent to which the information is known outside the business.

{¶43} The Board asserts only that “[t]he information is not known outside of the

Board, except by those whom the Board is directly dealing with in this negotiation.”

(Response at 10.) The Cincinnati Bengals organization and their counsel clearly have

direct knowledge of the information contained in Withheld Records p. 304-311, 335-342,

347-360, 364-371, and 375-381. Further, so much of the information as was disclosed

to the public as part of the final agreement or was voted on by the Board in an open

meeting (Friedmann Aff. at ¶ 14, 26; Gabelman Aff. at ¶ 12, 24) is known outside the

office and unequivocally became public record at that time.

(2) The extent to which it is known to those inside the business, i.e., by the

employees.

{¶44} The Board attests that “[o]nly those at the Board who are involved in the

negotiation know about this information.” (Response at 10.) The Board provides no

more specific evidence addressing access of other Board employees to the information.

However, the Enquirer does not challenge this representation. The court may therefore

accept the representation of the Board on this factor.

(3) The precautions taken by the holder of the trade secret to guard the

secrecy of the information.

{¶45} While trade secret is not waived by inclusion in an application or proposal,

State ex rel. Seballos v. School Emp. Retirement Sys., 70 Ohio St.3d 667, 671, 640

N.E.2d 829 (1994), neither does a negotiating process enable blanket assertion of trade

secret. “A business or possessor of a potential trade secret must take some active steps

to maintain its secrecy in order to enjoy presumptive trade secret status.” State ex rel.

Plain Dealer v. Ohio Dept. of Insurance, 80 Ohio St.3d 513, 525, 687 N.E.2d 661

(1997). “[T]he holder of a trade secret is protected against disclosure or unauthorized

Case No. 2019-00789PQ -26- REPORT AND RECOMMENDATION

use of the trade secrets by those to whom it has been confided on the condition that the

secret not be disclosed.” (Emphasis added.) R & R Plastics v. F.E. Myers Co., 92 Ohio

App.3d 789, 802, 637 N.E.2d 332 (6th Dist.1993). The Board took no discernable steps

to guard against disclosure of the withheld information by the Cincinnati Bengals

organization, and the Board does not point to any legal restriction on the Bengals

organization from disclosing any or all of the information they exchanged.5

{¶46} Likewise, the Board alleges no specific efforts to ensure that its own

members, employees, or consultants maintain the secrecy of the information. “There is

no presumption that any particular idea imparted to or acquired by an employee is a

trade secret unless the possessor takes active steps to maintain its secrecy.” Hoffman-

La Roche Inc. v. Yoder, 950 F.Supp. 1348, 1360 (S.D.Ohio 1997), citing Water

Management, Inc. v. Stayanchi, 15 Ohio St.3d 83, 85-86, 472 N.E.2d 715 (1984). An

entity claiming trade secret protections must demonstrate that it undertook reasonable

security measures to protect information known to employees. Hoffman-La Roche at

1361. Such efforts may include written or oral confidentiality agreements, facial marking

indicating confidentiality, internal or external controls on physical access to information,

and policies for retrieval or collection of disseminated documents. Id. at 1361-1364.

There is no evidence that the Board undertook such efforts in this matter.

{¶47} Further, a party claiming trade secret protection must take reasonable

steps to prevent disclosure by other parties with access to the information. See Jedson

Eng., Inc. v. Spirit Constr. Servs., 720 F.Supp.2d 904, 922 (S.D.Ohio 2010)

(subcontractor was not entitled to trade secret protection for drawings given to a general

contractor where there was no evidence the subcontractor took active steps to maintain

the secrecy of its drawings vis-à-vis third parties); R.C. Olmstead, Inc. v. CU Interface,

LLC, 606 F.3d 262, 273-74 (6th Cir.2010) (software developer did nothing to prevent

5

In any case, “an agreement of confidentiality, standing alone, cannot support a trade secret

claim.” State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513, 527, 687 N.E.2d 661 (1997).

Case No. 2019-00789PQ -27- REPORT AND RECOMMENDATION

customers from allowing third parties to view its software interface); In re Alternative

Energy Rider Contained in the Tariffs of Ohio Edison Co., 153 Ohio St.3d 289, 2018-

Ohio-229, 106 N.E.3d 1, ¶ 40-43 (utility company took reasonable steps to maintain

secrecy of supplier and bid information where it entered into protective agreements with

suppliers and other parties with access to the information). “[A]n owner’s disclosure to

potential or actual customers, absent a confidential agreement or understanding, will

destroy any protection of that information as a trade secret.” R & R Plastics v. F.E.

Myers Co., 92 Ohio App.3d 789, 802, 637 N.E.2d 332 (6th Dist.1993). In this case, the

Board provides no evidence that the entity with which it was negotiating agreements, or

its public relations consultant Ms. Sesler, agreed or understood that the information now

claimed as trade secret was to remain confidential.

{¶48} The Board’s bare assertion that it took unspecified “great steps to guard

the secrecy of this information, including withholding it from the Requester and the

public at this time” (Response at 10), is a conclusory statement with insufficient

evidentiary value. Under the circumstances, I find the Board has not shown that it has

taken any identified precautions to maintain secrecy of the information.

(4) The savings effected and the value to the holder in having the

information as against competitors.

{¶49} In In re Emily Opilo and the Morning Call v. Penn. Dept. of Comm. and

Econ. Dev., No. AP 2018-0145, 2018 PA O.O.R.D. LEXIS 432, *20-26, a state office

released part of its Amazon HQ2 proposal but asserted trade secret for the “incentive

proposal” portion. Id. at *20-23. The office claimed that disclosure would harm agency

“economic development initiatives to draw business to the Commonwealth by forcing

them to negotiate in public.” Id at *23. In rejecting the claim, the Pennsylvania Office of

Open Records found the assertions of harm speculative and conclusory, and that

“[m]ost importantly, the Department does not adequately address how other persons

can obtain economic value from the Incentive Proposal’s disclosure.” (Emphasis sic.) Id.

Case No. 2019-00789PQ -28- REPORT AND RECOMMENDATION

The Board here likewise fails to address how other persons would gain an economic

benefit from disclosure of the information it claims to be trade secret.

{¶50} In general, records that detail strategy, planning, bids and negotiations do

not automatically qualify as trade secrets. State ex rel. Plain Dealer v. Ohio Dept. of

Insurance, 80 Ohio St.3d 513, 526, 687 N.E.2d 661 (1997). The Board makes no effort

to quantify any savings effected, or the value to the Board in having the information as

against future competitors. It attests only that

[t]he information, if made public, would cause price increases and

competitive disadvantages and would result in a detrimental economic

impact to the Board and Hamilton County ratepayers as a whole. The

information was obtained through many months of negotiation and work

and if disseminated widely would threaten that work.

(Id.) With respect to financial models, the Supreme Court found in Besser II, 89 Ohio

St.3d 396, 732 N.E.2d 373 (2000) that OSU’s business plan, staffing contract, profit/loss

analysis, acquisition goal summaries, working assumptions for operations, notes and

research on comparable hospitals, draft asset purchase agreement, and pro forma for

acquisition of a hospital were not proven to be trade secret. Id. at 399-406. The Court

rejected OSU’s argument that if it entered into future negotiations similar to the failed

transaction, opposing parties could use these bid details “to determine OSU’s valuation

process, negotiating style, and internal processes for making and receiving offers, and

that competitors can use this information even now to attack, undermine, and

circumvent OSU’s business strategies,” finding that OSU had provided no factual

evidence to support its conclusory statements and arguments. Id. at 401-402.

{¶51} Likewise, the Board provides no evidence to show that the financial

information it used in this negotiation will have any value in future negotiations. The

Board cannot affirm that a future administration will offer identical terms to a different

partner, even in the unlikely event that market conditions remain static. See In re

Alternative Energy Rider Contained in the Tariffs of Ohio Edison Co., 153 Ohio St.3d

Case No. 2019-00789PQ -29- REPORT AND RECOMMENDATION

289, 2018-Ohio-229, 106 N.E.3d 1, ¶ 34, 36 (considering changes in market conditions

when evaluating the continuing economic value of information). The Board has provided

no factual evidence that its financial information relevant to this negotiation was so

unique, compelling, or otherwise valuable that competitors would gain a cognizable

economic benefit from their disclosure in the immediate future. At the same time, these

negotiations were crafted for an ephemeral situation that the Board does not show will

recur. See Plain Dealer, supra. The circumstances of future property negotiations will be

different, and the Board has not shown that keeping this particular financial information

a secret will benefit the Board at a later date. Besser II at 401-403. See Buduson v.

Cleveland, Ct. of Cl. No. 2018-00300PQ, 2019-Ohio-963, ¶ 31-32. Instead of providing

clear explanation and evidence, the Board does no more than aver vaguely that if it isn’t

allowed to keep this correspondence secret, “bad things” will happen.

{¶52} Further, the deal the Board was negotiating has apparently concluded.

(Reply at 5, Exh. 2.) Information specific to a completed process generally does not

retain independent economic value under the Ohio Uniform Trade Secrets Act, unless

the entity claiming trade secret offers specific evidence that the information would still

be beneficial to competitors. See Besser II at 403; Plain Dealer, supra; In re Alternative

Energy Rider at ¶ 36. The Board has made no such showing.

{¶53} Therefore, the Board fails to demonstrate that the financial information in

these communications has any significant or persisting value as against the Board’s

competitors in future transactions.

(5) The amount of effort or money expended in obtaining and developing

the information.

{¶54} The Board makes no effort to quantify the “amount of effort or money

expended in obtaining and developing the information” involved here. The Board states

only that “[t]he information was obtained through many months of negotiation and work

and if disseminated widely would threaten that work.” (Response at 10.) This statement

Case No. 2019-00789PQ -30- REPORT AND RECOMMENDATION

is unquantified, vague, and conclusory. I find the Board has not shown that it expended

a significant amount of money or effort in developing the information at issue.

(6) The amount of time and expense it would take for others to acquire and

duplicate the information.

{¶55} The mere fact that obtaining information may take some effort does not

make the information a trade secret. Brakefire, Inc. v. Oberveck, 144 Ohio Misc.2d 35,

2007-Ohio-6464, 878 N.E.2d 84, ¶ 33 (C.P.) The Board makes only the ambiguous

statement that “it is not clear that others could duplicate the work needed to obtain this

information.” (Emphasis added.) (Response at 10.) It makes no attempt to quantify this

assertion. Again, both the Board and future negotiating partners will rely on different,

updated information for future purchases. I find that the Board fails to adequately

demonstrate “the amount of time and expense it would take for others to acquire and

duplicate the information” that it lists as trade secret.

The Besser Factors Do Not Support a Finding of Trade Secret

{¶56} The Board relies on general and conclusory statements regarding the

economic value of keeping the bid information secret from the public rather than factual

evidence or expert testimony in support. The Board submitted no evidence of how often

it has been or reasonably expects to be presented with circumstances analogous to the

negotiation here, and there is no reason to believe that the conditions of future property

lease or acquisition would be identical. Review in camera fails to demonstrate that

future “competitors” would accomplish any significant savings of time or expense by

knowing the particular financial models and other information communicated under the

particular circumstances of this negotiation. Respondent has provided no persuasive

evidence of how any of the information “derives independent economic value, actual or

potential, from not being generally known.” There is no credible evidence that the

information withheld would benefit the Board in future transactions.

Case No. 2019-00789PQ -31- REPORT AND RECOMMENDATION

{¶57} The Board satisfies neither of the two mandatory requirements for trade

secret protection under the Ohio Uniform Trade Secrets Act: 1) by failing to identify

efforts to prevent disclosure by other parties, the Board fails to show that it took efforts

reasonable under the circumstances to maintain the secrecy of the information; (R.C.

1333.61(D)(2)) and, 2) by producing no evidence of the continuing value of the financial

and other information, the Board fails to show that the information derives independent

economic value (R.C. 1333.61(D)(1)). Thus, the information is not trade secret, and is

not exempt from disclosure under R.C. 149.43. Considering the evidence in light of the

Besser factors, I find that the Board has not met its burden to prove that any of the

claimed information fits squarely within the trade secret exception.

Records Containing Exemptions Must Be Redacted in a Manner That

Discloses Non-Exempt Contents

{¶58} In its January 27, 2020 privilege log, the Board claims that every line of

substantive text in the withheld records is privileged (compare January 27, 2020

Privilege Log, column titled Privileged Material Location, with the sealed records), rather

than conceding that documents can be redacted to obscure only privileged portions.

The Board asserts that any communication between an attorney and their client can be

withheld in its entirety, and need not be redacted at all. (Response at 6.) This assertion

is contrary to statutory and case law.

{¶59} The Public Records Act provides that only the information within a record

that is exempt 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). Where specific information in a questionnaire, form or other record is

exempt, only the protected information may be redacted. See Cuyahoga Cty. Bd. of

Health v. Lipson O’Shea Legal Group, 2013-Ohio-5736, 6 N.E.3d 631, ¶ 5, 29-31 (8th

Case No. 2019-00789PQ -32- REPORT AND RECOMMENDATION

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. When

asserting attorney-client privilege, a public office must redact only the exempt portions

of the record, and make available all of the information within the public record that is

not exempt.6 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)).

Portions of an attorney communication that are nonexempt, such as the general title of

the matter being handled, underlying facts of the case, dates of service, financial

arrangements, and the like must be disclosed. Id. at ¶ 15; Plogger v. Myers, 2017-Ohio-

8229, 100 N.E.3d 104, ¶ 9 (8th Dist.). The Supreme Court has consistently required an

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. 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. Thus, the Board should be ordered consistent with the directions in

the table below to disclose all non-privileged portions of the withheld records.

Non-Records

“Records” are defined in R.C. 149.011(G) as including:

any document, device, or item, regardless of physical form or

characteristic, * * * created or received by or coming under the

jurisdiction of any public office of the state or its political subdivisions,

which serves to document the organization, functions, policies,

decisions, procedures, operations, or other activities of the office.

6 Unless the exempt portion is “inextricably intertwined” with the remaining exempt material.

Although this exception to the rule is not alleged by the Board, see Narciso v. Powell Police Dept., Ct. of

Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 8-13 for discussion of redaction vs. “inextricably intertwined.”

Case No. 2019-00789PQ -33- REPORT AND RECOMMENDATION

The definition of “record” does not include every piece of paper on which a public

officer writes something, or every document received by a public office. State ex rel.

Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236, 2010-Ohio-5680, 938 N.E.2d 347,

¶ 13. With regard to personal information contained in a public record,

disclosure of information about private citizens is not required when

such information “‘reveals little or nothing about an agency’s own

conduct’” and “would do nothing to further the purposes of the Act.” 88

Ohio St.3d at 368 and 369, 725 N.E.2d 1144, quoting United States

Dept. of Justice v. Reporters Commt. for Freedom of the Press (1989),

489 U.S. 749, 780, 109 S.Ct. 1468, 103 L.Ed.2d 774.

State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-

7117, 781 N.E.2d 180, ¶ 9-13. For example, employee home addresses that do not

serve to document the functions, policies, decisions, procedures, operations, or other

activities of the office are not a “record” of the office. State ex rel. Dispatch Printing Co.

v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 20-41.

{¶60} The Board argues that the personal email address of counsel is a non-

record. (Friedmann Aff. at ¶ 9-10.) The Enquirer does not dispute this assertion, and

there is no evidence that counsel’s personal email address was used for other than

administrative convenience. See Dispatch at ¶ 25-26. I find that counsel’s personal

email address may be redacted from the withheld records.

Permitted Exemptions in The Withheld Records

{¶61} The Board did not meet its burden to establish that any withheld record

contained attorney work product, and the table therefore makes no reference to that

exemption.

Bates Description of Parties on Email Attorney-Client Privilege Trade Secret Non-Record

No. Document correspondence

1-2 Email re wording Thomas Gabelman, No: 1) No showing that No

of talking points re Anne Sesler, Jeff wordsmithing of publicity

lease amendment Aluotto, Theresa Giglio, talking points regarding lease

Roger Friedmann amendments is related to legal

Case No. 2019-00789PQ -34- REPORT AND RECOMMENDATION

advice. 2) Ms. Sesler negates

confidentiality as an

unnecessary third-party public-

relations consultant.

3-4 Poster with key Jeff Aluotto, Thomas No: 1) No showing that draft No

talking points re Gabelman, Roger publicity talking points

lease amendment Friedman, Anne Sesler, regarding lease amendments

Theresa Giglio are related to legal advice. 2)

Ms. Sesler negates

confidentiality as an

unnecessary third-party public-

relations consultant.

5-7 Email circulating Thomas Gabelman, No: 1) cover emails circulating No

proposed joint Todd Portune, Denise and inviting comment on a

press statement Driehaus, Chris Monzel, draft joint press statement with

reflecting Jeff Aluotto, Rodger Bengals organization are not

additional input Friedmann, Anne Sesler, privileged communications. 2)

from Bengals Patrick Woodside no evidence provided that

content is related to Board

legal advice. 3) Ms. Sesler

negates confidentiality as an

unnecessary third party public

relations consultant.

8-9 Attachment- No: 1) a draft joint press No

Proposed Joint statement with Bengals

press statement organization is not a privileged

reflecting input communication. 2) no evidence

from Bengals provided that content is related

to Board legal advice. 3) Ms.

Sesler negates confidentiality

as an unnecessary third party

to emails to which the draft is

attached.

10-11 Email circulating Thomas Gabelman, No: 1) cover emails circulating No

proposed joint Todd Portune, Denise and inviting comment on a

press statement Driehaus, Chris Monzel, draft joint press statement with

reflecting Jeff Aluotto, Rodger Bengals organization are not

additional input Friedmann, Anne Sesler, privileged communications. 2)

from Bengals Patrick Woodside no evidence provided that

content is related to Board

legal advice. 3) Ms. Sesler

negates confidentiality as an

unnecessary third party public

relations consultant.

12-13 Proposed Joint No: 1) a draft joint press No

press statement statement with Bengals

reflecting input organization is not a privileged

from Bengals communication. 2) no evidence

provided that content is related

to Board legal advice. 3) Ms.

Sesler negates confidentiality

as an unnecessary third party

to emails to which the draft is

attached.

14-15 Email circulating Thomas Gabelman, No: 1) cover emails circulating No

proposed joint Todd Portune, Denise and inviting comment on a

press statement Driehaus, Chris Monzel, draft joint press statement with

Case No. 2019-00789PQ -35- REPORT AND RECOMMENDATION

reflecting Jeff Aluotto, Rodger Bengals organization are not

additional input Friedmann, Anne Sesler, privileged communications. 2)

from Bengals Patrick Woodside no evidence provided that

content is related to Board

legal advice. 3) Ms. Sesler

negates confidentiality as an

unnecessary third party public

relations consultant.

16-19 Proposed Joint No: 1) drafts of joint press No

press statement statement with Bengals

reflecting input organization are not privileged

from Bengals communications. 2) no

evidence provided that content

is related to Board legal

advice. 3) Ms. Sesler negates

confidentiality as an

unnecessary third party to

emails to which the drafts are

attached.

20-22 Forwarded No: 1) first cover email No Yes:

message from (circulating attached email) is Personal

Rodger not privileged. 2) remaining email address

Friedmann, emails between Board counsel of atty.

communications and Bengals counsel and staff Friedmann is

between counsel regarding draft joint press non-record

for the Bengals statement are not privileged that may be

and counsel for and cannot be made so by redacted

Hamilton County communicating them between

Board and its counsel. 3) no

evidence provided that content

is related to Board legal

advice.

23-24 Attachment from No: 1) a draft joint press No

forwarded statement with Bengals

message organization is not a privileged

communication. 2) no evidence

provided that content is related

to Board legal advice. 3)

Content that is not privileged

cannot be made so by

communicating it between

attorney and client.

25-26 Email circulating Thomas Gabelman, No: 1) Cover emails No

proposed outline Todd Portune, Denise circulating and inviting

and memorandum Driehaus, Chris Monzel, comment on attachments are

of understanding Jeff Aluotto, Rodger not privileged communications.

for the terms of an Friedmann, Margaret

agreement Grossman

between the

Bengals and

Hamilton county

27-30 Draft outline of No: 1) draft structural terms of No: 1) No

proposed public- partnership is not privileged evidence

private partnership communication. 2) no evidence provided that

structure attached provided that content is related any content

to p. 25-26 email to Board legal advice. 3) draft derives

simply reflects negotiation independent

position. economic

value from

not being

generally

Case No. 2019-00789PQ -36- REPORT AND RECOMMENDATION

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

31-32 Draft MOU No: 1) draft structural terms of No: 1) No

attached to p. 25- partnership is not privileged evidence

26 email communication. 2) no evidence provided that

provided that content is related any content

to Board legal advice. 3) draft derives

simply reflects negotiation independent

position. economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

33-34 Attorney seeking Thomas Gabelman, No: 1) cover email circulating No

input from county Anne Sesler, Jeff and inviting comment on a

consultant about Aluotto, Rodger draft joint press statement with

an announcement Friedman Bengals organization is not

privileged communication. 2)

no evidence provided that

content is related to Board

legal advice. 3) Ms. Sesler

negates confidentiality as an

unnecessary third party public

relations consultant.

35-36 Attachment to p. No: 1) a draft joint press No: 1) No

33-34 email statement with Bengals evidence

organization is not a privileged provided that

communication. 2) no evidence any content

provided that content is related derives

to Board legal advice. 3) Ms. independent

Sesler negates confidentiality economic

as an unnecessary third party value from

to emails to which the draft is not being

attached. generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

37-38 Email in re: an Thomas Gabelman, Jeff No: 1) cover email circulating No

announcement Aluotto, Rodger and inviting comment on a

Friedmann draft joint press statement with

Bengals organization is not

privileged communication. 2)

no evidence provided that

Case No. 2019-00789PQ -37- REPORT AND RECOMMENDATION

content is related to Board

legal advice.

39-40 Attachment to p. No: 1) a draft joint press No: 1) No

37-38 email statement with Bengals evidence

organization is not a privileged provided that

communication. 2) no evidence any content

provided that content is related derives

to Board legal advice. independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

41-42 Email circulating a Thomas Gabelman, Jeff No: 1) Cover emails No

draft negotiation Aluotto, Rodger circulating and inviting

matrix Friedmann, Patrick comment on attachments are

Woodside not privileged communications.

43-50 Attachment to p. No: 1) draft structural terms of No: 1) No

41-42 email. "Draft partnership is not privileged evidence

document communication. 2) no evidence provided that

describing the provided that content is related any content

negotiation to Board legal advice. derives

between Hamilton independent

County and economic

Bengals" value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

51 Email circulating a Thomas Gabelman, No: 1) Cover email circulating No

draft Rodger Friedmann, and inviting comment on

Memorandum of Patrick Woodside, Jeff attachment is not privileged

Understanding Aluotto communication.

52-53 Attachment to p. Draft MOU No: 1) draft structural terms of No: 1) No

51 email partnership is not privileged evidence

communication. 2) no evidence provided that

provided that content is related any content

to Board legal advice. 3) draft derives

simply reflects negotiation independent

position. economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

Case No. 2019-00789PQ -38- REPORT AND RECOMMENDATION

concluded in

final

agreement.

54-58 Attachment to p. Draft outline of proposed No: 1) draft structural terms of No: 1) No

51 email public-private partnership is not privileged evidence

partnership structure communication. 2) no evidence provided that

provided that content is related any content

to Board legal advice. 3) draft derives

simply reflects negotiation independent

position. economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

59-60 Circulating talking Thomas Gabelman, Jeff No: 1) cover email circulating No

point in re County Aluotto, Rodger and inviting comment on a

Bengals Friedmann draft joint press statement with

Announcement Bengals organization is not

privileged communication. 2)

no evidence provided that

content is related to Board

legal advice.

61-62 Attachment to p. No: 1) a draft joint press No

59-60 email statement with Bengals

organization is not a privileged

communication. 2) no evidence

provided that content is related

to Board legal advice.

63-64 Circulating draft Thomas Gabelman, Jeff No: 1) Cover email circulating No

negotiation matrix Aluotto, Rodger attachment is not privileged

Friedmann, Patrick communication.

Woodside

65-72 Attachment to p. No: 1) draft structural terms of No: 1) No

63-64 email partnership is not privileged evidence

communication. 2) no evidence provided that

provided that content is related any content

to Board legal advice. derives

independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

73-74 Circulating draft Thomas Gabelman, Jeff No: 1) Cover email circulating No

outline Aluotto, Rodger attachment is not privileged

Friedmann, Patrick communication.

Woodside

Case No. 2019-00789PQ -39- REPORT AND RECOMMENDATION

75-82 Attachment to p. No: 1) draft structural terms of No: 1) No

73-74 email partnership is not privileged evidence

communication. 2) no evidence provided that

provided that content is related any content

to Board legal advice. derives

independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

83 Negotiation points Jeff Aluotto, Roger No: 1) Discussion of purely No: 1) No

discussion with Friedmann, and Thomas business terms is not evidence

counsel in Gabelman privileged communication. 2) provided that

11/12/18 email no evidence provided that any content

content is related to Board derives

legal advice. independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

83-86 Forwarded No: 1) email and attached No: 1) No

message from draft between Board counsel evidence

Bengals counsel and third-party Bengals provided that

counsel and staff regarding any content

budget is not privileged and derives

cannot be made so by independent

communicating it between economic

Board and its counsel. value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

87 Forwarding draft Jeff Aluotto, Roger No: 1) Discussion of purely No

document to other Friedmann, and Joe business terms is not

county employees Feldkamp privileged communication. 2)

no evidence provided that

content is related to Board

legal advice.

87-88 Forwarded No: 1) email and attached No

Case No. 2019-00789PQ -40- REPORT AND RECOMMENDATION

message from draft between Board counsel

Bengals counsel and third-party Bengals

counsel and staff regarding

lease is not privileged and

cannot be made so by

communicating it between

Board and its counsel.

89-96 Document No: 1) draft structural terms of No: 1) No

attached to partnership is not privileged evidence

forwarded communication. 2) no evidence provided that

message provided that content is related any content

to Board legal advice. derives

independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

97-98 Forwarding draft Thomas Gabelman, Jeff No: 1) Cover email circulating No

outline for review Aluotto, Rodger attachment is not privileged

by clients Friedmann, Patrick communication.

Woodside

99-106 Attachment to p. No: 1) draft structural terms of No: 1) No

97-98 email partnership is not privileged evidence

communication. 2) no evidence provided that

provided that content is related any content

to Board legal advice. derives

independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

107 Forwarding draft Thomas Gabelman, Jeff No: 1) Cover email circulating No

outline for review Aluotto, Rodger attachment is not privileged

by clients Friedmann, Patrick communication.

Woodside

108- Attachment to p. No: 1) draft structural terms of No: 1) No

115 107 email partnership is not privileged evidence

communication. 2) no evidence provided that

provided that content is related any content

to Board legal advice. derives

independent

economic

value from

not being

generally

Case No. 2019-00789PQ -41- REPORT AND RECOMMENDATION

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

116 Discussing Thomas Gabelman, Jeff No: 1) Discussion of purely No

negotiation points Aluotto, Rodger business terms is not

Friedmann, Patrick privileged communication. 2)

Woodside no evidence provided that

content is related to Board

legal advice.

116- Forwarded No: 1) email and attached No

118 messages from draft between Board counsel

Bengals counsel and third-party Bengals

and between counsel and staff regarding

counsel for lease is not privileged and

Hamilton County cannot be made so by

and counsel for communicating it between

the Bengals Board and its counsel.

119- Attachment to p. No: 1) draft structural terms of No: 1) No

125 116-118 emails partnership is not privileged evidence

communication. 2) no evidence provided that

provided that content is related any content

to Board legal advice. 3) derives

attachment to email involving independent

Bengals counsel and staff is economic

not privileged and cannot be value from

made so by communicating it not being

between Board and its generally

counsel. known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

126 Message Denise Driehaus, Jeff No: 1) This is not a No

forwarding a Aluotto communication between

message from attorney and client, there is no

another Hamilton attorney in this communication.

county employee 2) no evidence provided that

content is related to Board

legal advice.

126 Forwarded No: 1) This is not a No

message between communication between

two Hamilton attorney and client, there is no

County Employees attorney in this communication.

2) no evidence provided that

content is related to Board

legal advice.

126- Forwarded No: 1) Discussion between No: 1) No

129 message between Board member and county evidence

Hamilton County employee of purely business provided that

employees and terms is not privileged any content

counsel in re: communication. 2) no evidence derives

drafting provided that content is related independent

documents to Board legal advice. 3) economic

Case No. 2019-00789PQ -42- REPORT AND RECOMMENDATION

counsel is only cc:d. value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

129- Forwarded No: 1) Cover email circulating No

130 message between attachment is not privileged

Hamilton County communication. 2) Notice

employees and regarding meeting is not

counsel in re: privileged communication.

drafting

documents

131 Email asking Jeff Aluotto, Thomas No: 1) Request to forward

attorney to forward Gabelman email is not privileged

another email to a communication. 2) no evidence

Hamilton county provided that content is related

employee to Board legal advice.

131- Email about Thomas Gabelman, Jeff No: 1) Discussion of purely No: 1) No

132 financial aspects Aluotto business terms is not evidence

of the deal privileged communication. 2) provided that

no evidence provided that any content

content is related to Board derives

legal advice. independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

132- Email between No: 1) Discussion of purely No: 1) No

133 Hamilton County business terms is not evidence

Attorneys privileged communication. 2) provided that

no evidence provided that any content

content is related to Board derives

legal advice. independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

134- Email about Jeff Aluotto, Thomas No: 1) Discussion of purely No: 1) No

136 financial aspects Gabelman, Roger business terms is not evidence

Case No. 2019-00789PQ -43- REPORT AND RECOMMENDATION

of the deal Friedmann, Patrick privileged communication. 2) provided that

Woodside no evidence provided that any content

content is related to Board derives

legal advice. independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

137- Discussion of Jeff Aluotto, Thomas No: 1) Discussion of purely No: 1) No

139 financial aspects Gabelman, Roger business terms is not evidence

of the deal Friedmann, Patrick privileged communication. 2) provided that

Woodside no evidence provided that any content

content is related to Board derives

legal advice. independent

economic

value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

140 Discussion about Jeff Aluotto, Joe No: 1) Discussion between No: 1) No

negotiation Feldkamp, Roger Board member and county evidence

between two Friedmann, Lisa Doerger employee of purely business provided that

Hamilton County terms is not privileged any content

Employees communication. 2) no evidence derives

provided that content is related independent

to Board legal advice. 3) economic

counsel is only cc:d. value from

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

140- Forwarded email No: 1) Discussion between No: 1) No

142 from Joe Board member and county evidence

Feldcamp to Jeff employee of purely business provided that

Aluotto terms is not privileged any content

communication. 2) no evidence derives

provided that content is related independent

to Board legal advice. 3) economic

counsel is only cc:d. value from

not being

Case No. 2019-00789PQ -44- REPORT AND RECOMMENDATION

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

142 Forwarded email No: 1) Cover email circulating No: 1) No Yes:

between Hamilton attachment is not privileged evidence Personal

County Employees communication. provided that email address

and counsel any content of atty.

derives Friedmann is

independent non-record

economic that may be

value from redacted

not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

143- Continuation of No: 1) First sentence No: 1) No

146 that email regarding meeting is not evidence

privileged communication. 2) provided that

remainder discussing purely any content

business terms is not derives

privileged communication. 2) independent

no evidence provided that economic

content is related to Board value from

legal advice. not being

generally

known. 2)

Any benefit of

confidentiality

expired when

negotiations

concluded in

final

agreement.

147 Confirmation of a Jeff Aluotto, Roger No: 1) All three emails No Yes:

meeting place Friedmann concern scheduling of meeting, Personal

which is not privileged email address

communication. of atty.

Friedmann is

non-record

that may be

redacted

148- Continuation of No: 1) Discussion of purely No

151 that email business terms is not

privileged communication. 2)

no evidence provided that

content is related to Board

legal advice.

152- Negotiation points Joe Feldcamp, Jeff No: 1) Discussion between No

155 Aluotto, Roger Board member and county

Case No. 2019-00789PQ -45- REPORT AND RECOMMENDATION

Friedmann, Lisa Doerger employee of purely business

terms is not privileged

communication. 2) no evidence

provided that content is related

to Board legal advice. 3)

counsel is only cc:d on

Feldkamp email.

156- Attachments to No: 1) draft structural terms of No

165 email, draft partnership is not privileged

negotiation matrix communication. 2) no evidence

provided that content is related

to Board legal advice.

166 Email thread about Jeff Aluotto, Roger Yes: Discussion with Board No Yes:

lease negotiations Friedmann, Thomas attorney of legal effect of Personal

Gabelman proposed terms. Only the email address

message text is privileged of atty.

communication, and not the Friedmann is

associated header, salutation, non-record

signature block, and other that may be

metadata. redacted

167- Forward of Jeff Aluotto, Roger No: 1) Discussion of purely No

169 business proposal Friedmann, Thomas business terms is not

summary Gabelman privileged communication. 2)

no evidence provided that

content is related to Board

legal advice.

170- Email thread about Jeff Aluotto, Thomas No: 1) Discussion of purely No

173 lease negotiations Gabelman, Roger business terms is not

Friedmann, Joe privileged communication. 2)

Feldcamp, Lisa Doerger, no evidence provided that

John Burggen content is related to Board

legal advice.

174- Attachments to No: 1) draft structural terms of No

184 email, draft partnership is not privileged

negotiation matrix communication. 2) no evidence

provided that content is related

to Board legal advice.

185- Email thread about Jeff Aluotto, Thomas Yes: Discussion with Board No

186 effect of lease Gabelman, Roger attorney of legal effect of

terms Friedmann, Patrick proposed terms. Only the

Woodside message text is privileged

communication, and not the

associated header, salutation,

signature block, and other

metadata.

186- Email forwarding Jeff Aluotto, Thomas No: 1) Discussion of purely No

189 proposed revisions Gabelman, Roger business terms is not

Friedmann, Patrick privileged communication. 2)

Woodside no evidence provided that

content is related to Board

legal advice.

190- Email thread about Jeff Aluotto, Roger No: 1) Discussion of purely No

191 hiring a consultant Friedmann, Thomas business terms is not

Gabelman privileged communication. 2)

no evidence provided that

content is related to Board

legal advice.

192- Email thread about Jeff Aluotto, Thomas Yes, in part: First email is No

195 lease negotiations Gabelman, Roger commissioner inquiry to Board

Friedmann, Patrick attorney of legal effect of

Case No. 2019-00789PQ -46- REPORT AND RECOMMENDATION

Woodside proposed term. Only the

message text is privileged

communication, and not the

associated header, salutation,

signature block, and other

metadata. No: 2) Following

the first email, discussion of

purely business terms is not

privileged communication. 3)

no evidence provided that

content is related to Board

legal advice.

196- Email about lease Thomas Gabelman, Jeff No: 1) Discussion of purely No

198 negotiations Aluotto, Roger business terms is not

Friedmann, Patrick privileged communication. 2)

Woodside no evidence provided that

content is related to Board

legal advice.

199- Attachments to No: 1) draft structural terms of No

202 email, draft partnership is not privileged

negotiation matrix communication. 2) no evidence

provided that content is related

to Board legal advice.

203- Email about lease Thomas Gabelman, Jeff No: 1) Discussion of purely No

205 negotiations Aluotto, Roger business terms is not

Friedmann, Patrick privileged communication. 2)

Woodside, Theresa no evidence provided that

Giglio content is related to Board

legal advice.

206- Attachments to No: 1) draft structural terms of No

216 email, draft partnership is not privileged

negotiation matrix communication. 2) no evidence

provided that content is related

to Board legal advice.

217- Email about lease Thomas Gabelman, Jeff No: 1) Cover email forwarding No

218 negotiations Aluotto, Roger business proposal is not

Friedmann, Patrick privileged communication.

Woodside

219- Attachments to No: 1) draft structural terms of No

229 email, draft partnership is not privileged

negotiation matrix communication. 2) no evidence

provided that content is related

to Board legal advice.

230 Request for a Thomas Gabelman, Jeff No: 1) request for meeting is No

phone call Aluotto, Roger not privileged communication.

Friedmann, Patrick

Woodside

230- Email about Thomas Gabelman, Jeff No: 1) Cover email forwarding No

231 negotiation Aluotto, Roger business proposal is not

Friedmann, Patrick privileged communication.

Woodside, Robert

Mecklenborg

232- Attachment to No: 1) introductory No

245 email, draft lease communication from Bengals

is not a privileged

communication. 2) Bengals

response to draft structural

terms of partnership is not

privileged communication. 3)

no evidence provided that

Case No. 2019-00789PQ -47- REPORT AND RECOMMENDATION

content is related to Board

legal advice.

246- Email about Thomas Gabelman, Jeff No: 1) Cover email forwarding No

247 negotiation Aluotto, Roger business proposal is not

Friedmann, Patrick privileged communication.

Woodside, Robert

Mecklenborg

248- Attachment to No: 1) introductory No

260 email, draft lease communication from Bengals

is not a privileged

communication. 2) Bengals

response to draft structural

terms of partnership is not

privileged communication. 3)

no evidence provided that

content is related to Board

legal advice.

261 Email forwarding Jeff Aluotto, Todd No: 1) Cover email forwarding No

message from Portune, Chris Monzel, other email is not privileged

Bengals counsel Denise Driehaus, communication. 2) forwarded

Victoria Parks, Lanita email from Bengals staff not

Hanekamp, Alex Linser, privileged communication.

John Bruggen, Judy

Boyko, Roger

Friedmann

262- Email chain about Theresa Giglio, Thomas No: 1) Cover email forwarding No

263 letter to Bengals Gabelman, Jeff Aluotto, letter to Bengals is not

Roger Friedmann privileged communication. 2)

no evidence provided that

content is related to Board

legal advice.

264- Attached letter to No: 1) signed, apparently No

266 Bengals since-delivered letter to

Bengals.

267- Email about letter Thomas Gabelman, Jeff No: 1) Cover email forwarding No

268 to Bengals Aluotto, Theresa Giglio, draft letter to Bengals and

Roger Friedmann giving instructions for delivery

is not privileged

communication. 2) no evidence

provided that content is related

to Board legal advice.

269- Attached letter to No: 1) no evidence provided No

271 Bengals that content is related to Board

legal advice.

272- Email about letter Thomas Gabelman, Jeff No: 1) Cover email forwarding No

273 to Bengals Aluotto, Roger draft letter to Bengals and

Friedmann, Jennifer discussing execution and

Goins copies is not privileged

communication. 2) no evidence

provided that content is related

to Board legal advice.

274- Attached draft No: 1) no evidence provided No

276 letter to Bengals that content is related to Board

legal advice.

277 Email to Bengals From: Thomas No: 1) Bengals staff and No

counsel with Gabelman To: Bob counsel negate confidentiality

attached Giglio Bedinghaus, Stuart as third parties to cover email

email and Dornette, Aaron Herzig with attachments. 2) no

forwarded Cc: Roger Friedmann, evidence provided that content

announcement Jeff Aluotto is related to Board legal

Case No. 2019-00789PQ -48- REPORT AND RECOMMENDATION

advice. 3) not a communication

between attorney and client.

277- Email attaching From: Theresa Giglio to No: 1) attached to email to No

278 Bengals Thomas Gabelman third party. 2) Mere

announcement administrative cover email. 2)

no evidence provided that

content is related to Board

legal advice.

279- Attached No: 1) final joint press No

280 announcement statement with Bengals

organization, implicitly

approved by vote in public

meeting, is not a privileged

communication. 2) no evidence

provided that content is related

to Board legal advice. 3)

attached to email to third party.

281 Email about From: Thomas No: 1) Bengals staff and No

Bengals Gabelman To: Bob counsel negate confidentiality

announcement Bedinghaus, Stuart as third parties to cover email

Dornette, Aaron Herzig with attachments. 2) no

Cc: Roger Friedmann, evidence provided that content

Jeff Aluotto, Patrick is related to Board legal

Woodside advice.3) not a communication

between attorney and client.

281- Email attaching From: Margaret No: 1) attached to email to

282 Bengals Grossman To: Thomas third party. 2) Mere

announcement Gabelman administrative cover email. 2)

no evidence provided that

content is related to Board

legal advice.

283- Attached No: 1) draft joint press No

284 announcement statement with Bengals

organization is not a privileged

communication. 2) no evidence

provided that content is related

to Board legal advice. 3)

attached to email to third party.

285 Email about From: Thomas No: 1) Bengals staff and No

Bengals Gabelman To: Bob counsel negate confidentiality

announcement Bedinghaus, Stuart as third parties to cover email

Dornette, Aaron Herzig with attachments. 2) no

Cc: Roger Friedmann, evidence provided that content

Jeff Aluotto is related to Board legal

advice.3) not a communication

between attorney and client.

285- Email attaching From: Margaret No: 1) attached to email to No

286 Bengals Grossman To: Thomas third party. 2) Mere

announcement Gabelman administrative cover email. 2)

no evidence provided that

content is related to Board

legal advice.

287- Attached No:

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