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Bush v. Solid Waste Authority of Central Ohio

Court of Claims of Ohio

December 7, 2017

BILL M. BUSH Requester
v.
SOLID WASTE AUTHORITY OF CENTRAL OHIO Respondent

          Sent to S.C. Reporter 1/11/18

          REPORT AND RECOMMENDATION

          JEFFERY W. CLARK Special Master

          {¶1} On June 5, 2017, requester Bill M. Bush made a public records request to respondent Solid Waste Authority of Central Ohio ("SWACO") for

-Any written communications, including but not limited to emails, memos or letters, either to or from, between or among SWACO employees, agents and officials, and/or any other party concerning Kurtz Brothers free dumping of material at the Franklin County Landfill from Jan. 1 2016 through present.
-Any communication to, from or between SWACO and any outside auditing or law enforcement agency concerning Kurtz Brothers since July 1, 2016.

(Complaint, p. 2.) On June 16, 2017, SWACO Managing Counsel Rebecca Egelhoff objected to both requests as overly broad and vague, and stated that SWACO could not reasonably identify the records sought based on the manner in which it organizes and accesses its records. (Id. at 3.) However, Egelhoff enclosed with the response a first set of email records that SWACO's Technology Solutions department had produced from a voluntary key word search based on the requests, along with explanations and legal authority for redactions. Egelhoff indicated that any additional records produced from the search would be delivered on a rolling basis. Egelhoff offered to work with Bush to revise the request, and suggested a phone call after all key word search records had been produced. Id. On July 7, 2017, Egelhoff sent Bush a second response, identifying its completed key word search as encompassing all emails:

. to or from any SWACO email account;
. containing the words (1) Kurtz; and, (2) foreign; no charge; or free dumping; and,
. from 1/1/2016 thru 6/5/2017

(Id. at 6.). Egelhoff provided an online link to a file containing the remaining documents responsive to the search, and included an explanation with legal authority for redactions made. On July 14, 2017, Bush sent a reply challenging the extent to which the attorney-client privilege had been applied. (Id. at 7.) On August 14, 2017, Egelhoff responded that, based on Bush's reply, SWACO agreed that one of the communications had been mistakenly redacted. She attached a copy of the unredacted communication to her response, and offered to discuss any other communications that Bush felt were improperly redacted. (Id. at 9.)

         {¶2} On August 25, 2017, Bush filed this action under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B) - specifically, "[i]mproper use of attorney-client exemption to redact records." (Id. at 1.) On September 1, 2017, the court referred the case to mediation. On October 10, 2017, SWACO released additional records and portions of records to Bush, along with a privilege log. (Response, Attachment A.)[1] On October 12, 2017, the court was notified that the case was not fully resolved and that mediation was terminated. On October 26, 2017, SWACO submitted exemplary copies of the remaining unredacted records under seal, and filed its response ("Response").

         {¶3} The remedy of production of records is available under R.C. 2743.75 if the court determines that a public office denied an aggrieved person access to public records in violation of R.C. 149.43(B). The policy underlying the Public Records Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. "[O]ne of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed." State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997). Therefore, "[w]e construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records." State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.

         {¶4} R.C. 2743.75(F)(1) states that public records claims filed thereunder are to be determined through "the ordinary application of statutory law and case law." Case law regarding the alternative statutory remedy of mandamus[2] provides that 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, 995 N.E.2d 1175, ¶ 14. Therefore, the merits of this claim shall be determined under the standard of clear and convincing evidence, i.e., "that measure or degree of proof which is more than a mere 'preponderance of the evidence, ' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. See Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

         Attorney-Client ...


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