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Foulk v. City of Upper Arlington

Court of Claims of Ohio

May 25, 2017

ROBERT C. FOULK, Requester

          Sent to S.C. Reporter 6/13/17


          Jeffery W. Clark Special Master

         {¶1} On January 10, 2017, the Upper Arlington City Council held a special meeting (the Council meeting) pursuant to public notice. (Requester's Exhibit A.) The City Attorney and several other City employees attended (Requester's Exhibit B), as well as one non-employee, Martin Jenkins, who was under an independent personal services contract "to facilitate the 2017 City Council Retreat." (Motion to dismiss; Exhibits 2 and 2-A.) By email dated January 10, 2017, requester Robert Foulk made a request to City Clerk Ashley Ellrod for "the complete audio recording of the 9:00 AM city council meeting being held today, 1/10/2017, at Highbanks Metro Park." (Requester's Exhibit C.) On January 13, 2017, Ellrod acknowledged receipt of the request, and advised that "the audio is under City Attorney Review, as soon as it is available, I will let you know." (Requester's Exhibit D.) On January 19, 2017, Ellrod sent Foulk an email advising,

a. "The City is providing you a redacted copy of the audio recording from the council retreat held on January 10, 2017. Portions of the recording involving attorney-client privileged information, the release of which is prohibited by state or federal law, have been redacted. R.C. 149.43(A)(1)(v); State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379 (1998). The redacted portions total less than fourteen minutes."

(Requester's Exhibit G.) Foulk responded that he intended to challenge the redactions, and requested that the City maintain the original, unedited copy of the recording until the matter was settled. (Requester's Exhibit H.)

         {¶2} On February 6, 2017 Foulk filed a complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). Foulk attached copies of the original records request and related correspondence with the City. On February 23, 2017, Foulk submitted a supplemental memorandum in support. On March 21, 2017, mediation was conducted with Foulk and representatives of the City. The court was notified that the case had not resolved, and mediation was terminated. On April 4, 2017, the City filed a motion to dismiss pursuant to R.C. 2743.75(E)(2). The City attached the affidavits of Clerk of Council Ashley Ellrod, City Manager Theodore Staton, and City Attorney Jeanine Hummer. On April 6, 2017, the court ordered the City to submit, under seal, the unredacted audio recording of the Council meeting. On April 17, 2017, the City filed a purportedly unredacted audio recording of the Council meeting, along with a Notice of Waiver of Privilege, Filing of Record for In Camera Inspection and Request for Findings of Fact on Outstanding Items (Notice of waiver). On April 26, 2017, the court ordered the parties to submit additional information and arguments regarding the City's suggestion of mootness, and the timeliness of production of the requested records. Foulk and the City each filed an additional pleading regarding these issues.

         {¶3} R.C. 149.43(C) provides that a person allegedly aggrieved by a violation of division (B) of that section may either commence a mandamus action, or file a complaint under R.C. 2743.75. In mandamus actions alleging violations of R.C. 149.43(B), a relator must establish by "clear and convincing evidence" that they are entitled to relief. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 14. As for actions under R.C. 2743.75 alleging violations of R.C. 149.43(B), neither party has suggested that another standard should apply, nor is another standard prescribed by statute. R.C. 2743.75(F)(1) states that such claims are to be determined through "the ordinary application of statutory law and case law * * *." Accordingly, the merits of this claim shall be determined under a standard of clear and convincing evidence.

         {¶4} R.C. 149.43(B)(1) provides that "upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time." The complaint alleges that the City violated this provision in two ways: first, the city improperly withheld a portion of the requested record, and second, the production of the record "was neither timely nor reasonable." The City contends that it properly withheld (redacted) portions of the recording that constituted attorney-client privileged information. For the reasons below, I conclude that after the complaint was filed but before decision was rendered the City rendered Foulk's claim for production of records moot by providing all existing audio recording of the Council meeting. However, because the attorney-client privilege never applied to the withheld portions, the City violated the requirement of timely production by failing to produce the withheld portions within a reasonable period of time.

         Suggestion of Mootness

         {¶5} In an action to enforce R.C. 149.43(B), a public office may produce the requested records prior to the court's decision, and thereby render the claim for production of records moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, ¶ 18-22. Foulk requested "the complete audio recording" of the January 10, 2017 Council meeting, and the City initially provided access to an audio recording from which fourteen minutes had been redacted. Before the court could render a decision, the City declared that it waived its asserted attorney-client privilege, and directed Ellrod to disclose the full Council meeting recording (Notice of waiver, Exhibit A.) Ellrod attests that on April 11, 2017, "I emailed Robert Foulk the complete and un-redacted audio file from the Council retreat." (Respondent's additional evidence, Exhibit A, ¶ 2.) The City thus presents credible evidence that all records responsive to the request for "the complete audio recording" of the January 10, 2017 Council meeting have been provided.

         {¶6} In his May 8, 2017 Memorandum of Requester, Foulk questions whether the newly proffered audio recording was "complete, " noting a forty-nine minute disparity between the meeting duration stated in the minutes, and the length of the "complete and unredacted audio file" provided by Ellrod. (Id. at 11-12.) In an affidavit submitted with the City's May 10, 2017 Submittal of Additional Evidence, Ellrod explained that the recording had not captured a portion of the Council meeting:

b. "The recording previously produced contains the complete and total audio recording of the January 10, 2017 Council Retreat meeting. The tape was not started at the call to order because I was distracted by setting up for the meeting and forgot to turn on the recording device at the start of the meeting."

(Id. at ¶ 6.) "Respondents have no duty to create or provide access to nonexistent records." State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, ¶ 15; State ex rel. Cioffi v. Stuard, 11th Dist Trumbull No. 2009-T-0057, 2011-Ohio-829, ¶ 21-23 (no obligation to provide copy of transcript that was never taken). Considering Ellrod's sworn statement that she inadvertently commenced recording after the Council meeting was in progress, Foulk has not shown by clear and convincing evidence that the City has withheld any additional existing audio recording responsive to the request. A reasonable and good faith belief by a requester, without supporting evidence, does not constitute sufficient evidence to establish that a responsive document exists. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶ 24-26; State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, ¶ 8.

         {¶7} However, provision of all requested records does not render a claim for production moot if the issues raised are capable of repetition, yet evading review. State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000).

c. "This exception [to mootness] applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again."

Id. Foulk contends that the issues he raises are capable of repetition yet evading review, and points to Resolution No. 2-2017 (Motion to Dismiss, Exhibit A) in which the City asserts that it may apply the attorney-client privilege under the same circumstances at future City Council meetings. This evidence of likely repetition is unrebutted, but it is only one factor to be considered. Foulk does not establish that the threatened redaction of alleged attorney-client communications from recordings of future City Council meetings is an action "too short" to be fully litigated before its cessation or expiration. If the City continues to maintain audiotapes of City Council meetings, future instances of redaction of allegedly privileged communication would be subject to review in this court, or through mandamus, during the period that they are retained. Even if the City makes no audio recording of all or part of an open session of a public meeting, a remedy exists under R.C. 121.22 to compel the creation of adequate minutes and otherwise enforce the openness of the meeting. R.C. 121.22(C); Mahajan v. State Med. Bd. of Ohio, 10th Dist. Franklin Nos. 11AP-421, 11AP-422, 2011-Ohio-6728, ¶ 26-27; White v. Clinton Cty. Bd. of Comm'rs, 76 Ohio St.3d 416, 420, 667 N.E.2d 1223 (1996); State ex rel. Patrick Bros. v. Bd. of Putnam Cty. Commr's, 3rd Dist. Putnam No. 12-13-05, 2014-Ohio-2717, ¶ 33-37.

         {¶8} I conclude that Foulk has not established that the "capable of repetition yet evading review" exception applies to this claim. I recommend that the court DISMISS AS MOOT Foulk's claim for production of the complete Council meeting recording.

         Production of Required Records Within a ...

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