The opinion
[Cite as Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., 2020-Ohio-5281.]
THE CINCINNATI ENQUIRER, A Case No. 2019-00789PQ
DIVISION OF GANNETT GP MEDIA,
INC. Judge Patrick M. McGrath
Requester DECISION & ENTRY
v.
HAMILTON COUNTY BOARD OF
COMMISSIONERS
Respondent
{¶1} Respondent Hamilton County Board of Commissioners (Board) objects to a
special master’s report and recommendation (R&R) issued on August 25, 2020.
I. Background
{¶2} On July 11, 2019, pursuant to R.C. 2743.75(D), requester The Cincinnati
Enquirer, A Division of Gannett GP Media, Inc. (Enquirer) brought a civil lawsuit against
the Board wherein it alleged a denial of access to public records. The court appointed a
special master in the cause. The court, through the special master, referred the case to
mediation. After mediation failed to successfully resolve all disputed issues between
the parties, the Board responded to the complaint and moved to dismiss. On
August 25, 2020, the special master issued a R&R wherein the special master
recommended:
Based on the pleadings, affidavits, and documents submitted in this
action, I recommend the court order respondent to provide requester with
copies of all withheld records other than as noted in the table of permitted
exceptions. I further recommend the court find that respondent did not
provide copies or any other response within a reasonable period of time in
violation of R.C. 149.43(B)(1). I recommend the court order that requester
is entitled to recover from respondent the amount of the filing fee of
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twenty-five dollars and any other costs associated with the action that it
has incurred. I recommend costs be assessed to respondent.
(R&R, 51.)
{¶3} On September 22, 2020, after the court granted the Board’s request for an
extension of time to file objections, the Board filed written objections to the R&R. The
Board’s counsel served a copy of the Board’s objections on the Enquirer’s counsel by
means of certified mail and email, according to a certificate of service accompanying the
objections. The Board concurrently moved for leave to exceed page limits contained in
L.C.C.R. 4(E) for supporting, opposing, or memorandum briefs.
{¶4} On September 30, 2020, the Enquirer filed a written response to the Board’s
objections. The Enquirer’s counsel served a copy of the Enquirer’s response on the
Board’s counsel by means of the court’s Odyssey eFileOH system and email, according
to a certificate of service accompanying the response.
II. Law and Analysis
{¶5} R.C. 2743.75(F)(2) governs objections to a special master’s R&R. Pursuant
to R.C. 2743.75(F)(2), either party “may object to the report and recommendation within
seven business days after receiving the report and recommendation by filing a written
objection with the clerk and sending a copy to the other party by certified mail, return
receipt requested. * * * If either party timely objects, the other party may file with the
clerk a response within seven business days after receiving the objection and send a
copy of the response to the objecting party by certified mail, return receipt requested.
The court, within seven business days after the response to the objection is filed, shall
issue a final order that adopts, modifies, or rejects the report and recommendation.”
{¶6} The Board has timely objected to the R&R and has complied with R.C.
2743.75(F)(2) requirement to serve a copy of its written objections by certified mail.
{¶7} The Enquirer has timely responded to the Board’s objections; however, the
Enquirer has failed to comply with R.C. 2743.75(F)(2) requirement to serve a copy of its
Case No. 2019-00789PQ -3- DECISION & ENTRY
response by certified mail, return receipt requested. The Enquirer’s response therefore
is procedurally deficient under R.C. 2743.75(F)(2). The court will nonetheless consider
the Enquirer’s response in the interest of justice.
{¶8} Pursuant to R.C. 2743.75(F)(2), any objection to a report and
recommendation “shall be specific and state with particularity all grounds for the
objection.” The Board presents the following objections:
A. The R&R should not be adopted because attorney-client privileged
communications may be entirely withheld.
B. The R&R should not be adopted as the Board’s attorneys were acting
as legal advisors in the negotiations, and the attorney-client privilege
applies to any legal services not just the provision of “legal advice.”
C. The R&R should not be adopted because inclusion of the Board’s
own consultant does not waive the attorney-client privilege.
D. The R&R should not be adopted because the Board’s counsel’s work
product, drafts and trade secret were appropriately withheld at the time
the request was made.
E. The R&R should not be adopted as the request was ambiguous and it
is unclear whether several of the emails are in scope of the request.
F. The R&R should not be adopted as the Board acted in a reasonable
manner and should not be liable for costs.
{¶9} Upon independent review, the court finds that the special master has
properly applied the relevant law to the facts of this case. The court determines that the
Board’s objections should be overruled.
III. Conclusion
{¶10} The court GRANTS the Board’s request for leave to exceed page limits set
forth in L.C.C.R. 4(E). The court OVERRULES the Board’s objections. The court
adopts the R&R. The court ORDERS the Board to forthwith provide the Enquirer with
copies of all withheld records other than as noted in the table of permitted exceptions
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that is set forth in the R&R. The Enquirer is entitled to recover from the Board the
amount of the filing fee of twenty-five dollars and any other costs associated with the
action that are incurred by the Enquirer, but the Enquirer is not entitled to recover
attorney fees. Judgment is rendered in favor of the Enquirer. Court costs are assessed
against the Board. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.
PATRICK M. MCGRATH
Judge
Filed October 6, 2020
Sent to S.C. Reporter 11/13/20