Summary
This Report and Recommendation from the Ohio Court of Claims resolves a public records dispute initiated by Jakimah Dye against the City of Cleveland following her termination. The Special Master evaluates multiple public records requests, concluding that while some claims for additional records are moot due to prior production, the City unreasonably delayed responses to several requests. The document recommends ordering the production of specific withheld records, certifying compliance within set deadlines, awarding litigation costs to the requester, and dismissing all other claims.
Topics
Practice areas
Questions Presented
- Whether Dye's production claims were moot after Cleveland produced records and asserted that it had made a full release.
- Whether Cleveland unreasonably delayed responding to the public-records requests under R.C. 149.43(B)(1).
- Whether Cleveland established attorney-client privilege for redacted or withheld records, including communications involving public-relations staff.
- Whether Cleveland had waived an overbreadth objection by failing to assert it before the action was filed.
- Whether Dye was entitled to additional records, costs, filing fees, damages, a privilege log, search descriptions, or metadata.
Holdings
- The pending motions should be denied and the case decided on the merits because Dye's procedural errors were not sufficiently egregious, the R.C. 2743.75 procedure is intended to provide a forum for persons not schooled in the law, and Cleveland identified no substantive prejudice.
- A public-records production claim is generally moot when the public office produces the requested records, unless the requester presents clear and convincing evidence that additional responsive records exist or specifically challenges improper redactions or withholdings.
- Cleveland unreasonably delayed responding to the requests at issue under R.C. 149.43(B)(1).
- Communications concerning public-relations matters are not protected by the attorney-client privilege absent evidence that the participants were involved in formulating or executing legal advice.
- Cleveland waived its overbreadth objection by failing to assert it before Dye filed the action.
Key quotations
“upon request *** a public office *** shall make copies of the requested public record available to the requester *** within a reasonable period of time.” (¶ 15)
“the party claiming the privilege has the burden of proving that the privilege applies” (¶ 35)
“Communications about public relations concerns are not protected by the attorney-client privilege absent evidence that the public relations participants were involved in the formulation of legal, rather than public relations, advice.” (¶ 37)
“there is no duty under R.C. 149.43 for respondents to detail the steps taken to search for records responsive to the requests.” (¶ 46)
Factual background
Jakimah Dye, who had been discharged from employment by Cleveland, made six public-records requests for materials related to her discharge and related personnel matters. Cleveland made rolling productions, but several requests were answered only after litigation began, and Cleveland withheld or redacted records based on attorney-client privilege, work product, and other asserted exemptions. The special master found that some production claims were moot, but that Cleveland unreasonably delayed responses and failed to establish attorney-client privilege for specified communications concerning public-relations matters.
Procedural history
Dye made six public-records requests concerning her discharge from employment and filed this action to compel additional production. Cleveland produced some records before and during the litigation, while asserting exemptions and an overbreadth objection. Mediation was bypassed, an evidentiary schedule was established, and the special master recommended denying the pending motions, ordering production of specified records, finding unreasonable delay, awarding the filing fee and costs, and denying other relief. The report advised that either party could file objections within seven business days.
Remand instructions
No remand was ordered. The special master recommended that the Court of Claims order Cleveland to produce the records listed in the appendix and certify that no other responsive records exist, require completion within 30 days and certification within 40 days, award Dye her filing fee and costs, deny pending motions, find unreasonable delay, and deny all other relief. Either party could object within seven business days.