[Cite as Langer v. Ohio State Univ. Office of Univ. Compliance & Integrity , 2023
- Ohio
- 2323.]

IN T HE COURT OF CLAIMS OF OHIO

{¶1} This matter is before the special master for a report and recommendation pursuant to R.C. 2743.75(F)(1). I recommend that:

- Respondent Ohio State University (“OSU”) be ordered to produce a copy of the November 14, 2022 , “Agreement and General Release ” between it and its former pres ident ;

- Requester recover her filing fee and other costs in this action; and

- Requester be denied all other relief sought. I. Background. {¶2} This case arises from the announcement that Kristina Johnson, OSU’s then president, would b e stepping down. It seeks to en f orce four public records requests exploring the circumstances of her departure. {¶3} Three of those requests were made by Aubrey Wright, the managing editor of The Lantern , OSU’s student newspaper (“the Wright Requests”). Those requests were all submitted on b ehalf of T he Lantern and were made to the OSU . They were as follows : I am requesting an opportunity to inspect or obtain copies of public records of emails and text messages within th e last three months between President Kri stina M. Johnson and executive v ice president of research, innovation and knowledge Grace Wang in regard to any messages about the Board of Trustees and Johnson ’ s departure. JESSICA F. LANGER Requester

v. THE OHIO STATE UNIVERSITY OFFICE OF UNIVERSITY COMPLIANCE AND INTEGRITY Respon dent Case No. 2023

- 00195PQ Special Master Todd Marti
REPORT AND RECOMMENDATIONCase No. 2023

- 00195PQ

- 2

- REPORT AND RECOMMENDATION

I am making a public records request for emails and text messages between Presiden t Kristina M. Johnson, Chief of Staff JR Blackburn, and the Board of Trustees within the last three months in regard to Johnson ’ s annual performance review, any disciplinary action against Johnson and any indication of Johnson ’ s departure. I am requesting an opportunity to inspect or ob t ain copies of public records of any report by a third party that addresses President Kristina M. Johnson ’ s annual performance or any external or internal review from the las t year of Johnson. OSU responded, asserting that no responsive records existed as t o two of the requests , by providing redacted records for the remaining request , and by withholding records for the remaining request based on the attorney

- client privilege

. Complaint, filed March 17, 2023, at pp. 2, 4, 6, 7; Respondent The Ohio State Univ e rsity Office of University Compliance and Integrity’s Response To, and motion to Dismiss, Complaint , filed May 18, 2023 (“ MTD

”), at pp. 22, 28, 41, 65

- 66 ¶ 4, 66 ¶¶ 5, 6, 67 ¶ ¶ 7,8

. 1 {¶4} The fourt h request was made by Jessica La nger, T he Lantern’s editor in
c hief, to OSU: I would like to obtain a copy of any contract, memorandum of understanding, non

disclosure agreement or other signed document between the university/and or the Board of Trustees and University President Kristina M. Johnson related to her res i gnation, cessation or separation of her employment from Ohio State University. This request was also made on behalf of The Lantern

. OSU responded by pro viding redacted records and withholding other records based on attorney

- c lient privilege. Complaint at p .10 ; MTD at 50

- 64, 67 ¶ 10

. {¶5} This case was filed by Ms. Langer. Neither Ms. Wright nor The Lantern are parties. The undersigned was appointed as special master , and following unsuccessful mediation , set a schedule for the pa rties to file evidence and me m oranda supporting their positions. The times for those filing s have passed, and the case is ready for decision. Order Terminating Mediation , entered May 4, 2023

.

1 All references to specific pages of matters filed in this c a se are to pages of the PDF copies posted on the Court’s online docket, rather than to any internal pagination of the filings. References to the records filed for in c amera review also include cit ations to the Bates numbers added to those records.Case No. 2023

- 00195PQ

- 3

- REPORT AND RECOMMENDATION

II. Analysis

. A. OSU’s motion to dismiss should be granted as to clai ms based on the Wright Reques t s , but denied as to claims based on Ms. Langer’s request. {¶6} OSU moves to dismiss this case pursuant to R.C. 2743.75(E)(2) and Civ. R. 12(B)(6 ). It argues that Ms. Langer cannot sue on claims arising from the Wright Requests and that claims based on her own r e quest should be dismissed because her complaint did not include copies of all the responses to that request. I recommend that OSU’s motion be granted as to claims based on the Wright Requests, but denied as to claims based on Ms. Langer’s request.
1. Ms. La n g er cannot sue on claims arising from the Wright R equests

. {¶7} There are two independently dispositive reasons why Ms. Langer cannot sue on claims based on the Wright R equests. {¶8} First, she was not an “aggrieved” person with regard to those requests

. This
case w as filed pursuant to R.C. 2743.75. Both R.C. 149.43 (C) (1) and R .C. 2743.75(D)(1) require that a person invoking R.C. 2743.75 be allegedly “aggrieved” by a violation of R.C. 149.43(B). One cannot be aggrieved unless he or she makes the public records req u e st at issue, either directly or through a designee. That is established by State ex rel. Cincinnati Enquirer v. Deters , 148 Ohio St.3d 595, 2016

- Ohio

- 8195, 71 N.E.3d 1076 ; State ex rel. Quolke v. Strongsville City School Dist . Bd. of Edn ., 142 Ohio St.3d 5 09, 2015

- Ohio

- 1083, 33 N.E.3d 30 , and their progeny. {¶9} Enquirer held that it “ that in order to be a person aggrieved *** one must first request records from the public office. ” 148 Ohio St.3d 595, ¶ 20 . It denied relief to medi a req uesters who did not them s e lves request the records at issue, even though other requesters sharing the same objective request ed the same records

. Quolke and its progeny hold that a party other than the one who actually made the request can sue to enfo rce it if the person who mad e the request was the party’s designee. 142 Ohio St.3d 509 , ¶¶ 21

- 2 4 ; Ellis v. Cuyahoga Cty. Prosecutor ’ s Office , Ct. of Cl. No. 2018

- 00782PQ, 2018

- Ohio

- 3480, ¶ 3 . Accord State ex rel. Steckman v. Jackson , 70 Ohio St.3d 420, 422

- 423, 427 , 639 N.E.2d 83 (19 9 4 ) and State ex rel. Nelson v. Fuerst , 101 Ohio App.3d 436, 438, 655 N.E.2d 825 (8th Dist.1995)

.Case No. 2023

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- 4

- REPORT AND RECOMMENDATION

{¶10} The Wright R equest s were not made by Ms. Langer. She is therefore not aggrieved as to those requests pursuant to the rule set in the Enquirer case. She has n o t pled or argued that Ms. Wright was her designee . She had the burden of production on that point as because it goes to the existence of a proper request. Welsh

- Huggins v. Jefferson Cty. Prosecutor ’ s Office , 163 Ohio St.3d 337 , 2020

- Ohio

- 5371, 170 N.E.3d 7 68, ¶ ¶ 33 (general burden of production); Ryan v. City of Ashtabula , Ct. of Cl. Nos. 2022

- 00660PQ, 2022

- 00665PQ, 20 22

- 00680PQ, 2023

- Ohio

- 621, ¶ 9 , adopted 2023

- Ohio01487 (Sadler, J)(requester must plead a proper request) . The special master therefore rec o m mends that the c ourt find that Ms. Langer is not an aggrieved person as to the Wright R equests. {¶11} Second, Ms. Langer cannot be deemed to be suing on behalf of Ms. Wright
or T he Lantern because that would be the unauthorized prac tice of law . R.C. 4705.01 pr o v ides that no “ pe rson shall *** commence *** any action or proceeding in which the person is not a party *** unless the person has been admitted to the bar by order of the supreme court [.]” Because of that statute, “ only a licen sed attorney may file pleadi n g s on behalf of a nother party in court. ” State ex rel. Army of the Twelve Monkeys v. Warren Cty. Court of Common Pleas , 156 Ohio St.3d 346, 2019

- Ohio

- 901, 126 N.E.3d 1113, ¶ 5

. Complaints filed on behalf of another party by a n on - attorney are a legal null i t y and the result ing cases are dismissed without prejudice. Cannabis for Cures, L.L.C. v. State Bd. of Pharmacy

, 2d Dist. Clark No. 2018

- CA

- 12, 2018

- Ohio

- 3193, ¶ 10. Th ose principle s appl y to cases brought pursuant to R.C. 2743 .75. Y

- City News v. Tri

- Vall

e y Local School Bd . of Edn ., Ct. of Cl. No. 2022

- 00113PQ, 2022

- Ohio

- 2664, ¶¶ 9, 10 (Sheeran, J.)

. {¶12} The Ohio Supreme Court’s Attorney Directory 2 does not list Ms. Langer as a licensed attorney. The court may take judicial notice o f that public record. State e x rel. Pike Cty. Convention & Visitor ’ s Bur. v. Pike Cty. Bd. of Commrs ., 165 Ohio St.3d 590, 2021

- Ohio

- 4031, 180 N.E.3d 1135, ¶ 3, fn. 2 ; Johnson v. Clerk, Cleveland Police Dept ., Ct. of Cl. No. 2023

- 00031PQ, 2023

- Ohio

- 628, ¶ 6 , a dopted 2023

- Ohio

- 1859 (S a d ler, J.).

2 Avai l able at https://www.supremecourt .oh io.gov/AttorneySearch/#/search Last accessed Ju ne 1 2 , 2023.Case No. 2023

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- REPORT AND RECOMMENDATION

Both Ms. Wright and The Lantern are parties distinct from Ms. Langer. R.C. 4705.01 therefore prohibits Ms. Langer from press ing claims on their behalf. 3
2. Ms. Langer has stated a claim based on her own request and he r failure to attach some docu m ents to her complaint does not warrant dismissal. {¶13} The special master recommends that the court deny OSU’s motion to dismiss Ms. Langer’s claims based on her own public records request , for two reasons. {¶14} First, Ms

. Langer has alleged sufficient facts to s t ate a cla im

. A party invoking R.C. 2743.75 must “plead *** facts showing that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the publi c office or records custodian did not make the re cord available.” Welsh

- Huggin s , 163 Ohi o St.3d 337, ¶ 33. Ms. Langer’s complaint shows that she made a public records request for identifiable public records. Complaint , p. 10 . There are no facially obvious defects in that request. She also pled that the r equest was denied by a public office. I d

. at p. 9 . Those facts must be presumed to be true and state a claim. {¶15} Second, OSU’s argument that dismissal is warranted because Ms. L anger ’s complaint did not include all of the documents related to her request is at odds with precedent

. This c ourt has de clined to dismiss complaints because of requesters’ failure to attach documents when the missing documentation came into the record la ter in the proceedings and it was clear that the respondent was aware of the true state of affairs. Ohio Crime Victim Ju st ice Ctr. v. City of Cleveland Police Div ., Ct. of Cl. No. 2016

- 00872

- PQ, 2017

- Ohio

- 8950, ¶¶ 5, 6 , adopted by order of Dec. 12, 2017 (McGrath, J.); Andes v. Ohio Attorney General’ s Office , Ct. of Cl. No. 2017

- 00144PQ , 2017

- Ohio

- 4251 , ¶¶ 6,7, ado p ted by or de r of May 31, 2017 (McGrath, J)

. Dismissal has only occurred when the lack of documentation prevent ed the cour t from accurately analyzing the claims asserted. Hunt Eng., LLC v. Ohio EPA , Ct. of Cl. No. 2022

- 00243PQ, 2022

- Ohio

- 3141 , ¶¶ 15, 16,

3 OSU filed a number of records for in camera review that it apparently views as r e sponsive to the Wright Requests, but exempted from production by some provision of law. In Camera Submission of Respondent The Ohio State University Office of C ompl ia nce and Integrity

, filed May 18, 2023, at pp. 18/Bates 7, 20/Bates 8 through 23/Bates 11, 2 9/Bates 15 through 32/Bates 18, 34/ B ates 19 through 45/bates 30, and 47/Bates 31 through 52/Bates 36 . OSU nee d n ot produce those records in response to this case be ca use the claims based on the Wright Requests are not properly before the Court.Case No. 2023

- 00195PQ

- 6

- REPORT AND RECOMMENDATION

a d opted 202 2

- Ohio

- 3557 (Sheeran, J.)

. The missing documents are now in the record through OSU’s filings

. MTD at pp. 58

- 64, 67

- 68, ¶¶ 9,10. T he fact that OSU put th ose documents into the record shows that OSU is fully aware of th e fact s surrounding the reque s t . F inall y , their presence allows the c ourt to accurately evaluate the parties’ contentions. Dismissal on this basis wou ld be a departure from precedent.
B. Langer’s request should be denied in part and enforced in part. {¶16} OSU produced some records in res p onse to M s. Langer’s request, but redacted one of those records. Complaint , p. 9; MTD , pp. 50, 53

- 64, 67 ¶ 10. OSU also withheld two separate records based on attorney

- client privilege. One was a November 13, 2022, memora ndum from OSU’s General Counsel t o its then P resident (“the Memorandum”). MTD , pp. 50, 67

- 68 , ¶¶ 1 0

- 1 1 , In Camera Submission of Respondent The Ohio State University Office of Compliance and Integrity , filed May 18, 2023 (“ In Camera Records ”) pp. 25

- 27/Bate s 12

- 14. The other was a November 14, 2022, A greement and General Release between OSU and its then President. Id . at pp. 11

- 16/Bates 1

- 6 (“the Agreement”). The special master recommends that the redactions be upheld, that OSU’s withholding of the Memorandum be upheld, and that OSU be orde r ed to pro du ce the Agreement.
1. OSU p roperly redacted the documents i t produced to Ms. Langer

. {¶17} OSU redac ted Ms. Johnson ’s home address from its letter offering her the presidency of the university

. Complaint , p. 9; MTD , pp. 50, 53

- 64, 67

- 68 ¶ ¶ 10 , 11

. It
a r gues t ha t was proper because the redacted material was not a record within the meaning of R.C. 149.011(G) and hence was not a public record under R.C. 149.43. The special master recommends that the court sustain the redaction because Ms. Langer has
n ot me t her burden of proving that the redacted address was a record. {¶18} A R.C. 2743.75 “ complainant ’ s ‘burden of production’ is to *** prove facts showing that the requester sought an identifiable public record [.]” Welsh

- Huggins 163 O hio St. 3d 337, ¶ 33 (e mp hasis added .)

. Since “ ‘ public record ’ means records kept by any public office ,” R.C. 149.43(A)(1) (emphasis sic.), that requires proof that the material is a “record” as defined by R.C. 149.011(G).Case No. 2023

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- REPORT AND RECOMMENDATION

{¶19} The requester must provide that p roof. In S tate ex rel. Di sp at c h Printing Co. v. Johnson , 106 Ohio St.3d 160, 2005

- Ohio

- 4384, 833 N.E.2d 274 , the Dispatch requested materials that the public offices denied were records. The Court stated that

“ the Dispatch must prove that ” the materials we re records. Id . at ¶ 19 T he C o urt further noted that if “ the Dispatch fails to prove ” the defining elements of a record, it would “ not be entitled to *** compel access to the requested ” materials. Id . It later concluded that the

“ The Disp atch [was] not ent itled to ” the materials b ec au s e it “ did not prove that [they] were records .” Id

. at ¶ 44. See also, Id

. at ¶ 22 (“ the Dispatch must establish that ” the disputed materials had the defining attributes of a record). The same burden was impos ed in State ex rel . O ’ Shea & Assocs. Co., L .P .A

. v. Cuyahoga Metro. Hous. Auth ., 131 Ohio St3d 149, 2012

- Ohio

- 115, 962 N.E.2d 297, ¶ 23 . Among the things that must be shown is that the requested materials serve to document the organization, functions, polic ies, decisions, p rocedures, operations, or ot h e r activities of the office , something that is usually not true of public employees’ home addresses . Dispatch , supra

. {¶20} Ms. Langer filed no evidence. She has therefore failed to prove that the redacted information serve d to docu ment OSU’s organization, f un c t ions, policies, decisions, procedures, operations, or other activities . Her claim to the redacted information fails fo r want of proof.
2. OSU has not shown that the attorney
- client privilege applies to the all records it withhel d. a. OSU has the burden of p ro v i ng that the withheld records are squarely within the attorney - client privilege

. {¶21} OSU must carry a heavy burden of proof to sustain its claim of privilege. That is established by cases construing both the Public Records Act and the attorney

- client privil eg e itself. {¶22} “ It has long been the policy of this state, as reflected in the Public Records Act *** that open government serves the public interest and our democratic system. ” State ex rel. Dann v. Taft , 109 Ohio St.3d 364, 2006

- O hio

- 1825, 848 N.E.2d 472, ¶ 2 0 . The Court has therefore “ repeatedly espoused ” the principle “ that “ R.C. 149.43 *** isCase No. 2023

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- REPORT AND RECOMMENDATION

construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. ” Id

. {¶23} Because of that, a public office asserting a n e x emption from its general duty to provide access to public records b ears the burden to “ prove facts clearly establishing the applicability of the exemption. ” Welsh

- Huggins , 163 Ohio St.3d 337, ¶ 27. See also, Id . at ¶¶ 35, 54. That burden must be carrie d w i th “ competent, admissible evidence [.]” Id

. at ¶¶ 53, 77. “ Unsupported conclusory statements in an affidavit are insufficient. ” Id . at 35. {¶24} The office must make a strong showing. It “ does not meet this burden if it has not prov en that the requested reco rd s fall squarely within the exception ,” and the courts “ resol ve any doubt in favor of disclosure. ” Id . at ¶¶ 27, 63 (emphasis added). See also id . at ¶¶ 50, 63. Given that, “it i s not enough to say that a record is probably withi n a statutorily prescribed e x e mption [.]” Id . at ¶ 63 (emphasis sic.). {¶25} Courts determine whether an office has met that burden by conducting “ an individualized scrutiny of the records in question .” Id . at ¶ 29. The public office must produce extrinsic evide nce if the applicability o f t h e exemption is “ not obviously apparent and manifest just from the content of the record itself [.]” Id. at , ¶ 35. See also id . at ¶¶ 30, 50, 53. {¶26} Similar principles and standards control the attorney

- client privilege. Because th e privilege hinders the pu rs u i t of the truth, claims of privilege are examined

“ with the primary assumption that there is a general duty to give what [information] one is capable of giving, and that any exemptions *** are distinctly exceptional [.]” In re S tory , 159 Ohio St. 144, 14 8, 1 11 N.E.2d 385 (1953)

. “ The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges ,” so the privilege “should be recognized only within the narrowest limits required by principle .” I d

. a t 149. Accord , Perfection Corp. v. Travelers Cas. & Sur ., 153 Ohio App.3d 28, 2003

- Ohio

- 3358, 790 N.E.2d 817, ¶ 2 6 (8th Dist.) (“ The privilege *** should be strictly confined within the narrowest possible limits underlying its purposes ”). In short, the re “ must be good reason, plainly shown” for applying the privilege. In re Story , 159 Ohio St. at 149.Case No. 2023

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{¶27} Because of those principles, “ the party claiming the privilege has the burden of proving that the privilege applies [.] ” Westfie ld Ins. Group v. Silco Fir e & Sec ., 5th Dist. Stark No. 2018CA00 122, 2019

- Ohio

- 2697, ¶ 47(authorities and internal punctuation omitted) ; MA Equip. Leasing I, LLC v. Tilton , 2012

- Ohio

- 4668, 980 N.E.2d 1072 (10th Dist.) , ¶ 21

. That requires proof of every el ement of the privilege. Ci nc i n nati Enquirer v. Hamilton Cty. Bd. of Commrs ., Ct. of Cl. No. 2019

- 00789PQ, 2020

- Ohio

- 4856, ¶ 20 , adopted 2020

- Ohio

- 5281 (McGrath, J.); Williams v. Duke Energy Corp ., S.D. Ohio No. 1:08

- cv - 00046, 2014 U.S. Dist. LEXIS 109835, a t *14 (Aug. 8, 2014) ; Soc. C o r p. v. Am. Cas. Co ., N.D. Ohio CASE NO. 1:91CV0327, 1991 U.S. Dist. LEXIS 21180, at *4 (July 24, 1991) . See also, MA Equip. Leasing , 980 N.E.2d 1072 , ¶ 20 (“ There is no material difference between Ohio ’ s attorney

- client privil ege and the federal attorn ey c lient privilege ”). The privile ge applies:

“ ‘ (1 ) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence ( 5) by the client, (6) are at h is instance permanently protec ted (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived. ’ ” State ex rel. Lanham v. DeWine , 135 Ohio St.3d 191, 2013

- Ohio

- 199, 985 N.E.2d 467, ¶ 27

.

a. OSU pro perly withheld the memoran du m from its General Counsel to its then President

. {¶28} The record here shows that the Memorandum is covered by the attorney

client privilege. {¶29} Initially, the Memorandum is a communication between a professional legal advisor and her client, within the meani ng o f the second and fifth Lanham requirements. It is from Anne Garcia, OSU’s General Counsel, and is directed to Kristina Johnson , OSU’s then President. In Camera Records , p. 25/Bates 12. Adm. Code 3335

- 1

- 03(E) establishes that, as OSU’s General Counsel, Ms

. Garcia “ serve [d] as the chief legal advisor to the president , ” Ms. Johnson. These elements are established.Case No. 2023

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- REPORT AND RECOMMENDATION

{¶30} The Memorandum conveyed legal advice for purposes of the first and third Lanham benchmarks. It provided legal advice be cause it set forth Atto rn e y Garcia’s analys is of the contractual rights and obligations of OSU and then President Johnson

. Ambrose v. City of White Plains , S.D.N.Y., 2011 U.S. Dist. LEXIS 172178 (Sep. 30, 2011) , ** 27

- 28 ; AU New Haven, LLC v. YKK Corp ., S. D.N.Y. No. 15

- CV

- 03411 (G H W )(SN), 2017 U.S. Dist. LEXIS 176102 (Oct. 24, 2017) , * * 24 , 26

. It was sought by the client, as evidenced by the President Johnson signature. In Camera Records at p. 27/Bates 14. That satisfies the first and third Lanham conditio ns. {¶31} The communicati on s m a de through the Memorandum were made and kept in confidence. The privilege was expressly invoked at the time the Memorandum issued. Id . at p. 25/Bates 12 . OSU employees under the ultimate supervision of President Johnson asserted t he privilege in respon se t o Ms. Langer’s public records request. Complaint at p. 9 ; MTD at p. 53. OSU has continued to assert the privilege in this case. That satisfies the four th, sixth, seventh, and eighth Lanham requirements.

b. OSU has not proven that t he contract between it a n d former P resident Johnson sought or communicated legal advice

. {¶32} The other withheld record is a final version of an “Agreement and General Release” betwee n OSU and Former President Johnson

. In Camera Records , pp. Id . at pp. 11

- 16/Ba tes 1

- 6

. OSU has provided no extrinsic evidence regarding the Agreement other than affidavit testimony identifying it as one of the withheld records. MTD , p. 68, ¶ 11

. The Agreeme nt’s privileged s tatus must therefore be determined from four corners of the document. {¶33} Nothing in the Agreement establishes the first and third requirements for attorney

- client privilege: that the disputed material seeks or communicates about legal advice. It contains n ot hing that can be construed as a request for advice from eith er Johnson or OSU. Furthe r , it communicates no legal advice or information facilitating advice. Draft contracts can contain such communications, Muller v. Walt Disney Prods ., 871 F.Supp. 678 , 682 (S.D.N.Y.1994) ; Upsher

- Smith Laboratories v. Mylan Laborator ies , 94 4 F.Supp. 1411, 14 4 5 (D.Minn.1996) ; Andritz Sprout

- Bauer v. Beazer E ., 174 F.R.D. 609, 633 (M.D.Pa.1997) ; SEPTA v. CaremarkPCS Health, L.P ., 254 F.R.D. 253, 265Case No. 2023

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- REPORT AND RECOMMENDATION

(E.D.Pa.2008) , but thi s is not a draft. It has no redlines, discernable deletions, comme nts, or other advice focu s ed communications between OSU ’s counsel and Johnson or other OSU officials. cf. State ex rel. Hogan Lovells U.S., L.L.P. v. Ohio Dept. of Rehab. & Correction , 165 O hi o St.3d 368, 2021

- Ohio

- 1762, 179 N.E.3d 1150, ¶¶ 25

- 28 (rec ord
r eflecting counsel’s input is privileged). {¶34} Instead, it is a final, signed, agreement and final contracts are not privileged. Smith v. Ohio State Univ. Office of Compliance & Integrit y, Ct. of Cl. No. 2021

- 00400PQ, 2022

- Ohio

- 2657 , ¶ 21 (Sheeran, J.); Unite d States ex rel. Fago v. M &T Mtge. Corp ., 242 F.R.D. 16, 22 (D.D.C.2007) ; SodexoMAGIC, LLC v. Drexel Univ ., 291 F. Supp. 3d 681, 68 6 (E.D.Pa.2018) (Regarding email 11)

. That makes sense, fin al contracts do not communicate legal advice, but instead memorial ize the situation after t h e contracting parties have received advice

. Further, they are communications between adverse parties. Given the lack of extrinsic evidence that the Agreement someho w communicated legal advice or a request for advic e, OSU has faile d to prove that this reco r d is privileged. C. Costs

. {¶35} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled to recover from the public office or person responsible for t he public records the amount of the filing fee of twenty

- five doll ars and any other costs a s sociated with the action[.]” Ms. Langer was aggrieved because OSU failed to produce the agreement . She is therefore entitled to recover her filing fee and all costs i ncurred in this case. III. Conclusion. {¶36} In light of t he foregoing, th e special master recommen d s that:

- Respondent be ordered to produce the record filed at pp. 11

- 16/Bates 1

- 6 of the In Camera Records ;

- The Requester recover her filing fee and her other costs of this action; and

- That Requester be denied all other relief sou ght. {¶37} Purs uant to R.C. 2 7 43.75(F)(2), either par

ty may file a written objection with the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this report and re commendation. Any objection shall be specific and state with par ticularity all grounds f

o r the objection. A party shall not assign as error on appeal the court’sCase No. 2023

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- REPORT AND RECOMMENDATION

adoption of any factual findings or legal conclusions in th is report and recommendation
un le ss a timely objection was filed thereto. R.C. 2743.75(G)(1).

TODD MART I Special M aster

Filed June 13 , 2023 Sent to S.C. Reporter 7 / 7 /23