ROBERT C. FOULK, Requester
CITY OF UPPER ARLINGTON, OHIO Respondent
to S.C. Reporter 6/13/17
REPORT AND RECOMMENDATION
Jeffery W. Clark Special Master
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
(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.)
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.
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
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.
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.
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.
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
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
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.
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.
of Required Records Within a ...