[Cite as Chillicothe Gazette v. Chillicothe City Schools, 2018-Ohio-5445.]

{¶1} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of 

records under R.C. 2743.75 if the court of claims determines that a public office has 

denied access to public records in violation of R.C. 149.43(B). The policy underlying the 

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. 

{¶2} On the morning of April 30, 2018, reporter Jona Ison of the 

Chillicothe Gazette made a public records requests to respondent Chillicothe City 

Schools (CS): 

I have heard rumor Jon Saxton has/is resigning today. Has he submitted a 

resignation letter? If so, please provide me a copy. 

Also, if the Title IX report by the attorneys has been completed and 

provided to the district, please provide me a copy. [Request No. 1]

(Am. Compl., Exh. E, p. 2-3.) Chillicothe CS promptly responded that 

CHILLICOTHE GAZETTE 

 Requester 

 v. 

CHILLICOTHE CITY SCHOOLS 

 Respondent 

Case No. 2018-00950PQ 

Special Master Jeffery W. Clark 

REPORT AND RECOMMENDATION 
Case No. 2018-00950PQ -2- REPORT AND RECOMMENDATION 

There are no documents which would satisfy your first request. The 

document which is the subject of your second request is protected by 

attorney-client privilege. 

(Id.) On the afternoon of April 30, 2018, Ison added the following requests: 

The Gazette would like to receive copies of the following: 

 Contract or other documentation outlining the cost and scope of 

work to be done by Freund, Freeze & Arnold and/or attorney 

Sandra R. McIntosh. [Request No. 2]

 Meeting minutes showing board approval to hire Freund, Freeze & 

Arnold and/or attorney Sandra R. McIntosh. [Request No. 3]

 All bills from Freund, Freeze & Arnold and/or attorney 

Sandra R. McIntosh for 2017 and 2018. [Request No. 4]

(Id., Exh. A, p. 2-3, with attachment Exh. B.) Chillicothe CS responded on May 4, 2018 

that: 

Sandra was appointed as counsel through the District’s liability insurer, 

and was not engaged by the Board. Therefore, I can not produce meeting 

minutes or bills from her for 2017 and 2018 because we do not have any. 

(Id., Exh. A, p. 2.) On May 7, 2018, Ison sent an email containing a final request: 

Please send me a copy of the insurance policy you referred to below as 

well as all correspondence with the insurance carrier related to Freund, 

Freeze & Arnold and/or attorney Sandra R. McIntosh being retained and 

throughout the retainer. [Request No. 5]

(Id., Exh. A, p. 1.) On May 21, 2018, Chillicothe CS produced a copy of the requested 

insurance policy. (Id.; Reply, Exh. C.) On May 23, 2018, Chillicothe CS further 

responded: 

I never got to speak with you about the questions you had about the date, 

scope of work, and who initiated it, etc. 

Here is what I can tell you. The date of the correspondence was 

10/13/2017, she is no longer actively engaged, and she was appointed 

insurance council [sic]. 

This may not help you much but this is all the information I can provide 

you with. 

(Am. Compl., Exh. C.) On May 29, 2018, counsel for the Gazette reiterated Ison’s 

request for the “Title IX investigation report” and added a request for “an engagement 
Case No. 2018-00950PQ -3- REPORT AND RECOMMENDATION 

letter in which the School District laid out the terms of the engagement. We believe this 

is dated 10/13/17.” [Request No. 6]. (Id., Exh. D, p. 1.) On May 30, 2018, counsel for 

Chillicothe CS responded that 

Ms. Ison requested records related to Sandy McIntosh and her firm, 

Freund, Freeze and Arnold. Ms. McIntosh was appointed as counsel by 

the District's liability insurance carrier. Ms. Lawwell properly indicated that 

any responsive documents are privileged. Ms. McIntosh has not prepared 

any "independent Title IX investigation report." That is/was not her role. 

(Id., Exh. E, p. 1.) 

{¶3} On June 13, 2018, the Gazette filed a complaint under R.C. 2743.75 

alleging denial of access to public records by Chillicothe CS in violation of 

R.C. 149.43(B). On July 10, 2018, the Gazette filed an amended complaint. Following 

unsuccessful mediation, Chillicothe CS filed a motion to dismiss (Response) on 

September 14, 2018. On September 25, 2018, Chillicothe CS provided an additional 

record to the Gazette. (Reply at 1, Reply Exh. A.) Chillicothe CS has filed a number of 

withheld items under seal, and on November 9, 2018 filed a supplemental response. 

Motion to Dismiss 

{¶4} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must 

presume that all factual allegations of the complaint are true and make all reasonable 

inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 

190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it 

must appear beyond doubt that plaintiff can prove no set of facts entitling him to 

recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 

327 N.E.2d 753 (1975). 

{¶5} Chillicothe CS moves to dismiss the complaint on the grounds that 

1) requester has not identified the records sought with sufficient clarity, 2) any legal 

services bills paid by the insurance carrier are not “records” of respondent, 3) meeting 

minutes as described in the request do not exist, 4) the requested “independent Title IX 

investigation report” does not exist, and 5) responsive communications between 
Case No. 2018-00950PQ -4- REPORT AND RECOMMENDATION 

Attorney McIntosh and the Board are protected from disclosure by attorney-client 

privilege. Although Chillicothe CS did not deny any of the requests on the grounds of 

ambiguity or overbreadth prior to the filing of this action, it now asserts that “[t]he 

inconsistency of the official public records request, original Complaint, and Amended 

Complaint demonstrate the Requester has failed to request the records sought “with 

reasonable clarity.” However, it is the public records request that must “reasonably 

identify what public records are being requested,” not the complaint. See

R.C. 149.43(B)(2). While not a model of clarity, the complaint sufficiently pleads denial 

of the requests attached to the complaint through the content of the correspondence, 

the name of the school official responsible for the denial, and the date of final denial. 

{¶6} While part of Request No. 2, and all of Request No. 3, are ambiguous and 

overly broad, Request No. 2 also includes a proper request, and Request No. 3 is 

properly denied on multiple grounds. Therefore, these requests will be addressed below 

on the merits. The other defenses presented by the City; non-existence, non-records, 

common-law attorney-client privilege, and mootness, cannot be determined based 

solely on the complaint and attachments thereto. I therefore recommend that the motion 

to dismiss be DENIED, and the matters determined on the merits. 

Burdens of Proof 

{¶7} In an action to enforce Ohio’s Public Records Act (PRA), the burden is on 

the requester to prove an alleged violation. In mandamus enforcement actions, 

[a]lthough the PRA is accorded liberal construction in favor of access to 

public records, “the relator must still establish entitlement to the requested 

extraordinary relief by clear and convincing evidence.” 

State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 

598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by 

clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153 

¶ 27-30 (5th Dist.). 

{¶8} If a public office asserts an exception to the Public Records Act, the burden 

of proving the exception rests on the public office. “Exceptions to disclosure under the 
Case No. 2018-00950PQ -5- REPORT AND RECOMMENDATION 

Public Records Act, R.C. 149.43, are strictly construed against the public-records 

custodian, and the custodian has the burden to establish the applicability of an 

exception. A custodian does not meet this burden if it has not proven that the requested 

records fall squarely within the exception.” State ex rel. Cincinnati Enquirer v. JonesKelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the 

syllabus. Any doubt should be resolved in favor of disclosure. State ex rel. James v. 

Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994). 

{¶9} However, the defense that an item is not a record does not assert an 

exception, and the burden of proof remains with the requester. When this assertion is 

made, 

a requester must establish that they are (1) documents, devices, or 

items, (2) created or received by or coming under the jurisdiction of 

CMHA, (3) which serve to document the organization, functions, policies, 

decisions, procedures, operations, or other activities of the office. 

(Emphasis added.) State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. 

Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23. See State ex 

rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 

274, ¶ 19 (If requester fails to prove any of these three requirements, the items are not 

subject to disclosure under the Public Records Act). 

{¶10} The burden is thus on the requester to show that disputed items meet the 

definition of a “record.” But see Hurt v. Liberty Twp. at ¶ 75-78. Similarly, where an 

office attests that requested records do not exist, the requester has the burden to 

establish that the records exist by clear and convincing evidence. State ex rel. 

McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 

976 N.E.2d 877, ¶ 22-26. 

Request No. 1 for “the Title IX report by the attorneys” 

{¶11} Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., 

prohibits discrimination on the basis of sex in any educational program or activity that 

receives certain federal funding. On April 4, 2011, the U.S. Department of Education 
Case No. 2018-00950PQ -6- REPORT AND RECOMMENDATION 

Office for Civil Rights issued a Dear Colleague letter (“2011 Letter”)1 that, as relevant 

here, addresses grievance procedures for resolution of complaints alleging actions 

prohibited by Title IX. “As part of these procedures, schools generally conduct 

investigations and hearings to determine whether sexual harassment or violence 

occurred,” 2011 Letter at 10. Such an investigation is referred to as a “Title IX 

investigation.” 

{¶12} Chillicothe CS commissioned two reports related to a student complaint 

involving former employee Dr. Jeffrey Fisher, but only one is a Title IX investigation 

report. The first report, titled Chillicothe High School Title IX Investigation (Dr. 

Jeffrey R. Fisher), was prepared pursuant to board policy and has been disclosed to the 

Gazette in redacted form. (Reply, Exh. A; Supplemental Response at 4-5.) The first 

report addressed whether sexual harassment or violence occurred, and Chillicothe CS 

does not dispute that the first report is a “Title IX report by the attorneys.” Chillicothe CS 

redacted portions of the first report pursuant to the federal Family Education Rights 

and Privacy Act (FERPA), 20 U.S.C. §1232g; 34 C.F.R. Part 99; and pursuant to 

R.C. 3319.321. These exceptions will be reviewed separately below. 

{¶13} The purpose of the second report, titled Attorney-Client Report and 

Recommendations Related to the Chillicothe High School Title IX Sex Harassment 

Investigation (Jeffrey R. Fisher), was not to establish whether sexual harassment or 

violence occurred. Instead, it contains the attorney’s analysis and recommendations for 

future risk management and student safety improvements. (Id.; Oct. 10, 2018 Mullins 

Aff. at ¶ 3; Oct. 10, 2018 Philemond Aff. at ¶ 3.). The second report was not a Title IX 

investigation report, and thus not a record sought by the Gazette’s request. A public 

office is only required to produce records that match the terms of the request. State ex 

rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio4246, 976 N.E.2d 877, ¶ 25; Ebersole v. Powell, Ct. of Cl. No. 2018-00478-PQ, 2018-

 1 The 2011 Letter is a “significant guidance document” for Title IX compliance, archived at 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (Accessed November 16, 2018.) 
Case No. 2018-00950PQ -7- REPORT AND RECOMMENDATION 

Ohio-4597, ¶ 37. I find that the Gazette has not shown by clear and convincing 

evidence that Chillicothe CS failed to comply with R.C. 149.43(B) by not providing the 

second report. As this defense is dispositive, the assertion that attorney-client privilege 

applies to the contents of the second report need not be determined. 

Family Education Rights and Privacy Act (FERPA) 

{¶14} FERPA, where applicable, constitutes a prohibition on the release of 

records under the Public Records Act. State ex rel. ESPN, Inc. v. Ohio State Univ., 132 

Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 18-25. As relevant here, FERPA 

prohibits an educational institution from having 

a policy or practice of permitting the release of education records (or 

personally identifiable information contained therein other than directory 

information * * *) of students without the written consent of their parents to 

any individual, agency, or organization. 

20 U.S.C. 1232g(b)(1). The term “education records” means materials which “(i) contain 

information directly related to a student; and (ii) are maintained by an educational 

agency or institution or by a person acting for such agency or institution.” 20 

U.S.C. 1232g(a)(4). Although the Title IX investigation here was of an employee, rather 

than a student, the report is an “education record” to the limited extent it contains 

information identifying individual students. ESPN at ¶ 28-30. 

{¶15} FERPA permits an educational institution to disclose education records if it 

has removed all personally identifiable information. See United States v. Miami Univ., 

294 F.3d 797, 811, 824 (6th Cir.2002). “Personally identifiable information” includes: 

(a) The student’s name; 

(b) The name of the student’s parent or other family members; 

(c) The address of the student or student’s family; 

(d) A personal identifier, such as the student’s social security number, student 

number, or biometric record; 
Case No. 2018-00950PQ -8- REPORT AND RECOMMENDATION 

(e) Other indirect identifiers, such as the student’s date of birth, place of birth, 

and mother’s maiden name; 

(f) Other information that, alone or in combination, is linked or linkable to a 

specific student that would allow a reasonable person in the school 

community, who does not have personal knowledge of the relevant 

circumstances, to identify the student with reasonable certainty; or 

(g) Information requested by a person who the educational agency or institution 

reasonably believes knows the identity of the student to whom the education 

record relates. 

34 CFR 99.3. Based on the above, I find that that Chillicothe CS may redact personally 

identifiable information of students identified in the Title IX report. 

R.C. 3319.321

Like FERPA, Ohio’s R.C. 3319.321(B) provides: 

No person shall release, or permit access to, personally identifiable 

information other than directory information concerning any student 

attending a public school, for purposes other than those identified in 

division (C), (E), (G), or (H) of this section, without the written consent of 

the parent, guardian, or custodian of each such student who is less than 

eighteen years of age, or without the written consent of each such student 

who is eighteen years of age or older. 

Unlike FERPA, the statute is not limited to “education records,” but broadly prohibits 

release of any personally identifiable information other than directory information 

concerning any student attending a public school. “Personally identifiable information” is 

not defined in the Ohio Revised Code for purposes of Chapter 3319, and the court must 

therefore refer to the related FERPA definition at 34 C.F.R. § 99.3. I conclude that in 

this case R.C. 3319.321(B) provides an exception nearly identical to that in FERPA, and 

requires Chillicothe CS to withhold all “personally identifiable information” of the 

students identified in the Title IX report. 
Case No. 2018-00950PQ -9- REPORT AND RECOMMENDATION 

Extent of Redaction 

{¶16} FERPA and R.C. 3319.321(B) do not permit redaction of adjacent nonexempt material. ESPN held that “[w]ith the personally identifiable information 

concerning the names of the student-athlete, parents, parents’ addresses, and the other 

person involved redacted, FERPA would not protect the remainder of these records.” 

ESPN at ¶ 33-35. The Public Records Act likewise requires that 

[i]f a public record contains information that is exempt from the duty to 

permit public inspection or to copy the public record, the public office or 

the person responsible for the public record shall make available all of the 

information within the public record that is not exempt. 

R.C. 149.43(B)(1). Surgical redaction that retains disclosure of non-exempt portions of a 

record furthers this core purpose of the Act: “The Public Records Act serves a laudable 

purpose by ensuring that government functions are not conducted behind a shroud of 

secrecy.” ESPN at ¶ 40. Neither these statutes, nor any other public records exception, 

permits withholding material from this report on the grounds that it is salacious, 

embarrassing, or otherwise implicates generalized privacy concerns. See State ex rel. 

WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, 

¶ 30-36. On review of the redacted report in camera, I find that Chillicothe CS redacted 

all “personally identifiable information” that falls within categories (a) through (e). 

However, additional material was redacted that does not fall within categories (a) 

through (e). 

{¶17} Jessica Philemond states that she prepared the redacted copy of the Title 

IX report “to remove personally identifiable student information in accordance with” 

FERPA and R.C. 3319.321 while serving as legal counsel to Chillicothe CS. (Philemond 

Aff. at ¶ 4.) Philemond states that she provided no professional services to Chillicothe 

CS prior to December 18, 2017. (Id. at ¶ 2.) Philemond does not relate any source of 

knowledge other than her own in determining what material was personally identifiable 

information. Chillicothe CS did not claim, and provided no evidence, that any redacted 

material falls under Personally Identifiable Information category (f). Nevertheless, some 
Case No. 2018-00950PQ -10- REPORT AND RECOMMENDATION 

of the additional redacted information appears likely to allow a reasonable person in the 

school community, who does not have personal knowledge of the relevant 

circumstances, to identify the student with reasonable certainty. 

{¶18} I find on review of the unredacted Title IX report (Exh. 7, filed under seal), 

and the report as released (Reply, Exh. A; Exh. 6, filed under seal), that Chillicothe CS 

fails to show that the following material fell under any category of “personally identifiable 

information.” The explanatory column identifies any items that may remain redacted: 

Non-Exempt Material Explanation, And Material That May Remain Redacted 

Pg. 2, ¶ 2, line 5 Redacted word indicates only gender 

Pg. 4, ¶ 4, lines 6 & 7 Only student names, not action or inaction, may be redacted 

Pg. 4, ¶ 4, line 10 No FERPA exception applies to non-identifying statements 

Pg. 5, ¶ 1, lines 1 & 2 No FERPA exception applies to non-identifying statements 

Pg. 5, ¶ 3, line 3 No FERPA exception applies to description of Fisher’s 

position at the time. 

Pg. 5, ¶ 3, title and 

lines 4-6 

Only the student name and class year may be redacted. 

FERPA exceptions to not apply to actions, inactions, or 

contents of statements. 

Pg. 5, ¶ 3, line 7 Only student name may be redacted. 

Pg. 5, ¶ 4 Only student names, not non-identifying statements and 

actions, may be redacted. 

Pg. 5, ¶ 5 Only student names may be redacted. May also redact 

brand names of gifts, as specific enough that may allow 

reasonable person in the school community to identify. 

Pg. 5, ¶ 6 (continuing 

onto Pg. 6, lines 1-2) 

Only names and class years may be redacted. Action or 

inaction may not be redacted. Locations may not be 

redacted – not specific enough to lead reasonable person 

w/o personal knowledge to identity of student with 

reasonable certainty. 

Pg. 5, fn. 3 No FERPA exception applies 

Pg. 6, ¶ 2, line 1 Phrase “was friends with” is not excepted under FERPA. 
Case No. 2018-00950PQ -11- REPORT AND RECOMMENDATION 

Pg. 6, ¶ 2, lines 4-13 Only student names and dates which would identify class 

year may be redacted. 

Pg. 6, ¶ 3 Only student names, not actions or inaction, may be 

redacted. 

Pg. 6, ¶ 4, line 1-3 Only student name may be redacted. 

Pg. 6, ¶ 4, lines 4-16 First four words in line 4 may remain redacted. Starting with 

first full sentence in line 4, only student name may be 

redacted. No other FERPA exceptions apply to the actions or 

contents of the statements. 

Pg. 6, ¶ 5, title and 

lines 1-2 

Only student name may be redacted. 

Pg. 7, ¶ 1 Only name, student nickname, and references to class years 

may be redacted. 

Pg. 7, ¶ 2 Only names and dates may be redacted. 

Pg. 7, ¶ 3 Student and student relative’s names, and gift brand names, 

may be redacted. 

Pg. 7, ¶ 4 Only student names and all of line 5 may be redacted. 

Pg. 8, ¶ 2, line 4 Redacted location not subject to FERPA exception. 

Pg. 8, ¶ 4, lines 7-12 Only student names may be redacted. Dates not subject to 

FERPA exception in this context. Contents of text 

conversation not subject to FERPA exception. 

Pg. 8, ¶ 5 Only student name and class year may be redacted. 

Pg. 9, ¶ 1 Only student name may be redacted. 

Pg. 9, ¶ 2 If the message sent was a “private” or “direct” Twitter 

message, only student name may be redacted. If the 

message was a public Twitter post, the current redaction is 

acceptable. 

Pg. 9, ¶ 3 Only student and relative’s names and class year may be 

redacted. 

Pg. 9, ¶ 4 Only student name, parent name, and class year may be 

redacted. 

Pg. 9, ¶ 5, lines 1-12 Only student name, class year, and all of lines 4 and 13 may 

be redacted. 
Case No. 2018-00950PQ -12- REPORT AND RECOMMENDATION 

Pg. 9, ¶ 6, lines 7-10 Only student name may be redacted. 

Pg. 10, ¶ 1, lines 1-2 Only student name may be redacted. 

Pg. 11, ¶ 4, line 3 No FERPA exception applies to statement contents. 

Request No. 2 for “Contract or other documentation outlining the cost and 

scope of work to be done by Freund, Freeze & Arnold and/or attorney 

Sandra R. McIntosh” 

{¶19} A requester must reasonably identify the particular records sought. A 

request that is ambiguous or overly broad may be denied “[i]f a requester makes an 

ambiguous or overly broad request or has difficulty in making a request for copies or 

inspection of public records under this section such that the public office or the person 

responsible for the requested public record cannot reasonably identify what public 

records are being requested.” R.C. 149.43(B)(2). It is “the responsibility of the person 

who wishes to inspect and/or copy records to identify with reasonable clarity the records 

at issue.” State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 

122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. See State ex rel. Zauderer v. Joseph, 62 

Ohio App.3d 752, 756, 577 N.E.2d 444 (10th Dist.). A request for all records throughout 

an office, based only on the description of a topic, is inherently problematic. See 

Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl. No. 2017-00051-PQ, 

2017-Ohio-4247, ¶ 10; Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio3475. 

{¶20} Judicial determination of whether an office has properly denied a request 

as ambiguous or overly broad is based on the facts and circumstances in each case, 

Zidonis at ¶ 26. I find that the phrase “or other documentation” in Request No. 2 is not 

sufficiently specific to reasonably identify what records, other than a contract, were 

sought by this request. 

Embedded Request 

{¶21} A proper request embedded within an otherwise ambiguous or overly broad 

request may be enforceable. In State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 
Case No. 2018-00950PQ -13- REPORT AND RECOMMENDATION 

2008-Ohio-4788, 894 N.E.2d 686, ¶ 5, 17-24, a request for all a state representative’s 

email for five months was found overly broad, but embedded language – “including, but 

not limited to [a particular house bill]” – was sufficiently narrow to be a proper request. I 

find that by excising the phrase “or other documentation,” Request No. 2 contains a 

sufficiently specific request for a “contract * * * outlining cost and scope of work to be 

done” by the named law firm and/or attorney. 

Non-Existent Records 

{¶22} In response to the specific request for a copy of the described contract, 

Chillicothe CS states that it has no such contract to provide. (Supplemental Response 

at 2; McIntosh Aff. at ¶ 2.) A public office has no duty to provide records that do not 

exist, or that it does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 

2014-Ohio-869, 6 N.E.3d 471, ¶ 5, 8-9. 

Non-Records 

{¶23} Chillicothe CS further asserts that wherever bills for McIntosh’s legal 

services to it might exist, they are not “records” of Chillicothe CS. (Response at 7.) To 

constitute a public record subject to the Public Records Act a document must be a 

“record” and must be “kept by” the public office. R.C. 149.43(A)(1); State ex rel. Sch. 

Choice Ohio, Inc. v. Cincinnati Pub. Sch. Dist., 147 Ohio St.3d 256, 2016-Ohio-5026, 63 

N.E.3d 1183, ¶ 13; State ex rel. Cincinnati Enquirer v. Cincinnati Bd. of Edn., 99 Ohio 

St.3d 6, 2003-Ohio-2260, 788 N.E.2d 629, ¶ 11-15. 

“Records” are defined in R.C. 149.011(G) as including: 

any document, device, or item, regardless of physical form or 

characteristic, * * *, created or received by or coming under the jurisdiction 

of any public office of the state or its political subdivisions, which serves to 

document the organization, functions, policies, decisions, procedures, 

operations, or other activities of the office. 

The Gazette has the burden to show that a contract for McIntosh’s legal services was 

created by, received by, or came under the jurisdiction of Chillicothe CS, and that it 

served to document the organization, functions, policies, decisions, procedures, 
Case No. 2018-00950PQ -14- REPORT AND RECOMMENDATION 

operations, or other activities of Chillicothe CS. I find that the Gazette has not met this 

burden. First, there is no affirmative showing that any contract was created by, received 

by, or came under the jurisdiction of Chillicothe CS. Communication from Liberty Mutual 

to Chillicothe CS did not include a contract for legal services or copies of invoices for 

McIntosh’s legal fees. (Mullins Aff. at ¶ 2.a., b., d.) Legal services were arranged and 

paid for by Liberty Mutual. (Supplemental Response at 2; McIntosh Aff. at ¶ 2.) The 

requested document was therefore not created, received by, or under the jurisdiction of 

Chillicothe CS. The same evidence establishes that the described contract was not 

“kept by” Chillicothe CS. 

{¶24} Second, the purported contract did not document the organization, 

functions, policies, decisions, procedures, operations or other activities of Chillicothe CS 

because Chillicothe CS did not retain McIntosh’s services—Liberty Mutual did so after 

Chillicothe CS made a claim for insurance benefits. (Mullins Aff. at ¶ 2; McIntosh Aff. at 

¶ 2.) I find under these circumstances that the described contract for legal services was 

not a record of Chillicothe CS. 

{¶25} I conclude that Request No. 2 was improperly ambiguous and overly broad 

to the extent it requested “other documentation” regarding legal services. I further find 

that no Chillicothe CS contract with the named firm or attorney existed, and if a contract 

for the described services exists elsewhere, it is not a record of Chillicothe CS. 

Request No. 3 for “Meeting minutes showing board approval to hire 

Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh” 

{¶26} First, this request is a request for information or research, rather than a 

request for specific existing records. The Public Records Act does not 

compel a governmental unit to do research or to identify records 

containing selected information. That is, relator has not established that a 

governmental unit has the clear legal duty to seek out and retrieve those 

records which would contain the information of interest to the requester. 

Cf. State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St.3d 177, 179, 464 

N.E.2d 556. Rather, it is the responsibility of the person who wishes to 
Case No. 2018-00950PQ -15- REPORT AND RECOMMENDATION 

inspect and/or copy records to identify with reasonable clarity the records 

at issue. 

State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, 

*3-4 (April 28, 1993), aff’d, 68 Ohio St.3d 117, 623 N.E.2d 1202 (1993). Accordingly, a 

request for meeting minutes that contain discussion of a particular topic is an improper 

request for information rather than records. Salemi v. Cleveland Metroparks, 8th Dist. 

Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 26; State ex rel. O'Shea & Assocs. Co., 

L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio App.3d 218, 222, 2010-Ohio-3416, 

941 N.E.2d 807, ¶ 7-11. I find that the Gazette’s request for “meeting minutes showing 

board approval to hire Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh” 

was an improper request to search for records containing information of interest to the 

requester. 

{¶27} Separately, Chillicothe CS has shown that meeting minutes as described in 

the request do not exist. Chillicothe CS attests there were no meeting minutes 

discussing McIntosh’s legal representation of the district, but that board meeting 

minutes are available to the public online. (Mullins Aff. at ¶ 2.c.) The Gazette counters 

that “[i]t seems unlikely that there would be no Board minutes related to Freund” (Reply 

at 3-4), but offers no affirmative evidence that such minutes exist. Even a reasonable 

and good faith belief by a requester, based only on inference and speculation, does not 

constitute the clear and convincing evidence necessary to establish that responsive 

documents exist. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 

Ohio St.3d 139, 2012-Ohio-4246, ¶ 22-26; State ex rel. Gooden v. Kagel, 138 Ohio 

St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 8. I find that the Gazette fails to meet its 

burden to prove that Chillicothe CS violated R.C. 149.43(B) in not producing “meeting 

minutes showing board approval to hire Freund, Freeze & Arnold and/or attorney 

Sandra R. McIntosh.” 

Request No. 4 for “All bills from Freund, Freeze & Arnold and/or attorney 

Sandra R. McIntosh for 2017 and 2018.” 
Case No. 2018-00950PQ -16- REPORT AND RECOMMENDATION 

{¶28} Chillicothe CS asserts that the requested bills from Freund, Freeze & 

Arnold or McIntosh are not records of Chillicothe CS. (Response at 7). Chillicothe CS 

explains that it was not responsible for, did not receive, and did not pay any legal fees to 

McIntosh. (Mullins Aff. at ¶ 2.d.) Instead, Liberty Mutual engaged necessary legal 

services pursuant to an insurance policy that has been provided to the Gazette. (Id.; 

Reply, Exhibit C.) Based on the same evidence and authority used in the analysis of 

Request No. 2, above, I find that “bills from Freund, Freeze & Arnold, and/or attorney 

Sandra R. McIntosh for 2017 and 2018” were not created, received, come under the 

jurisdiction of Chillicothe CS, or document the activities of Chillicothe CS. I find that the 

described bills for legal services do not meet the definition of “records” of Chillicothe CS. 

Quasi-Agency 

{¶29} The Gazette contends that even if Chillicothe CS does not possess the 

requested legal bills, it must obtain and produce the bills because the bills are not 

“outside of its control.” (Reply at 3). In certain circumstances, records in the possession 

of a private entity may be public records subject to the Public Records Act. State ex rel. 

Toledo Blade v. Ohio Bur. of Worker’s Comp., 106 Ohio St.3d, 112, 2005-Ohio-3549, 

832 N.E.2d 711, ¶ 20; State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 

657, 758 N.E.2d 1135 (2001). Under the theory of “quasi-agency,” a private entity may 

be a “person responsible” for public records. State ex rel. Carr v. Akron, 112 Ohio St.3d 

351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 36. When records in the possession of a 

private entity are thereby subject to the Public Records Act, a request made of the 

public office should afford the requester access to the records in possession of the 

private entity. Krings at 659; State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39, 

550 N.E.2d 464 (1990). 

{¶30} This court has previously declined to analyze claims under a theory of 

quasi-agency where the requester does not first establish that the requested documents 

were “records” under the Public Records Act. Ebersole v. Powell, Ct. of Cl. No. 
Case No. 2018-00950PQ -17- REPORT AND RECOMMENDATION 

2018-00478PQ, 2018-Ohio-4597, ¶ 19. A quasi-agency analysis is arguably 

unnecessary in this case as well, because the Gazette fails to show by clear and 

convincing evidence that the purported legal bills meet the definition of a “record” of 

Chillicothe CS. 

{¶31} However, even if a quasi-agency analysis was necessary, the result would 

not change. A private entity is a “responsible person” under R.C. 149.43(C) only if all 

the following conditions are met: (1) the private entity must prepare the records in order 

to carry out a public office’s responsibilities; (2) the public office must be able to monitor 

the private entity’s performance; and (3) the public office must have access to the 

records for the purpose of monitoring performance. Toledo Blade v. Ohio Bur. of 

Worker’s Comp., at ¶ 20. In this case, no prong of the Ohio Supreme Court’s threeprong test is satisfied. 

{¶32} Neither party addresses the first requirement of quasi-agency – whether 

Liberty Mutual received legal bills “in order to carry out Chillicothe CS’s responsibilities.” 

It appears that Liberty Mutual documented purchase of legal services as an internal 

record of the delivery of insurance benefits, but providing insurance, even to a public or 

governmental entity, “has not been established to be a historically governmental 

function.” State ex rel. Brooks, 130 Ohio St.3d 87, 2011-Ohio-4897, 955 N.E.2d 987, 

¶ 22. The Gazette might argue that legal defense of Chillicothe CS’ official actions is the 

relevant “responsibility carried out” under this analysis, and that had the school district 

sought legal representation directly, bills from counsel would have been subject to the 

Public Records Act. State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio 

St.3d 400, 403, 678 N.E.2d 557 (1997). However, unlike Shirey the facts in this case do 

not involve a direct contracting of a task, but the purchase of an insurance policy for 

which benefits are promised. Chillicothe CS purchased an insurance policy from Liberty 

Mutual (Reply, Exh. C; Mullins Aff. at ¶ 2.d), and Liberty Mutual appointed McIntosh 

pursuant to that policy. (Mullins Aff. at ¶ 2, 2.d; McIntosh Aff. at ¶ 2). The premium 

amount and the terms of the insurance policy are records of Chillicothe CS that 
Case No. 2018-00950PQ -18- REPORT AND RECOMMENDATION 

document its decisions and actions in obtaining liability insurance. However, because 

there is no correspondence between the legal bills paid by Liberty Mutual, and the 

premium paid by Chillicothe CS, I find that the legal bills were not created “in order to 

carry out Chillicothe CS’ responsibilities.” 

{¶33} Second, the Gazette has not shown that the terms of the insurance policy 

gave Chillicothe CS the ability to monitor Liberty Mutual’s performance in paying 

McIntosh’s bills. Finally, the Gazette has not shown that Chillicothe CS had access to 

those bills for the purpose of monitoring Liberty Mutual’s performance. Instead, 

Chillicothe CS had access only to its policy, and its communications with McIntosh in 

the course of her delivery of legal services. See State ex rel. ACLU of Ohio v. Cuyahoga 

Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 52-54. I 

find that the legal bills for McIntosh’s services are not subject to the Public Records Act 

under the quasi-agency theory. 

{¶34} Under the facts and circumstances of this case, the Gazette has failed to 

establish that the legal bills are public records subject to disclosure.2

Request No. 5 for Copy of insurance policy and “all correspondence with 

the insurance carrier related to Freund, Freeze & Arnold and/or attorney 

Sandra R. McIntosh being retained and throughout the retainer.”

{¶35} Chillicothe CS has produced a copy of the insurance policy. (Reply, Exh. 

C). The Gazette’s claim is moot as it relates to this portion of the request. 

{¶36} Chillicothe CS asserts that “Requester has not identified the records sought 

with reasonable clarity.” (Response at 5-6). Request No. 5 asks that a search be made 

through “all correspondence” – a general terms that does not reasonably identify a 

specific category of office records. See generally Gupta v. Cleveland, Ct. of Cl. No. 

2017-00840PQ, 2018-Ohio-3475. In the analogous case of Kanter v. Cleveland Heights, 

Ct. of Cl. No. 2018-01092PQ, 2018-Ohio-4592, the requester sought “all 

 

2 Even were the legal bills subject to the Public Records Act, Chillicothe CS has raised the defense of 

attorney-client privilege. (Response at 7.) See State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St. 3d 

292, 2016-Ohio-2974, 55 N.E.3d 1091. Due to the finding that the bills are not records of Chillicothe CS, I 

find it unnecessary to address this defense.
Case No. 2018-00950PQ -19- REPORT AND RECOMMENDATION 

communications, messages, schedules, logs, and documents shared between the City 

of Cleveland Heights...and employees of the Cleveland Jewish News between 

March 20, 2013 and April 12, 2013, regarding Garry Kanter.” The request was found 

ambiguous and overly broad. The Gazette’s request for “all correspondence” with the 

insurance carrier “related to” the retainer of McIntosh is ambiguous and overly broad for 

the same reasons. 

{¶37} First, the Gazette’s request does not name specific persons whose 

correspondence is sought. Generally, a request is overly broad when it identifies 

correspondents only by their relationship to offices, titles, groups or categories, for 

which research is required to recognize membership. State ex rel. Oriana House, Inc. v. 

Montgomery, 10th Dist. Franklin No. 04AP-492, 04AP-504, 2005-Ohio-3377, ¶ 9, rev’d 

on other grounds, 107 Ohio St.3d 1694, 2005-N.E.2d 201; Gannett GP Media, Inc. v. 

Ohio Dept. of Pub. Safety at ¶ 11; Kanter at ¶ 8. This request would require Chillicothe 

CS to conduct research to find correspondents based on their membership in 

organizations—i.e. the Chillicothe School Board and Liberty Mutual. 

{¶38} Second, requests for documents “regarding” or relating to a topic are 

especially problematic: 

A request to find all communications “regarding” a topic, to or from any 

employee, anywhere in the office, requires a needle-in-the-haystack 

search through the office’s paper and electronic communications. It also 

requires judgment calls as to whether any given communication – whether 

persona, tenuous, or duplicative – is “regarding” the topic. If a public office 

attempts such a universal search, the time involved results in delay for the 

requester. Nor can a public office assume that by agreeing to “do the best 

it can” with an ambiguous or overly broad request, instead of denying it, 

will shield it from liability. See State ex rel. Bott Law Group, LLC v. Ohio 

Dep’t of Natural Res., 10th Dist. Franklin No. 12AP-448, 2013-Ohio-5219. 

The dilemma for the public office may not be whether the public office can 

identify any records responsive to the request, but whether the terms of 

the request permit it to reasonably identify all responsive records. 

(Emphasis sic.) Gannet GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl. No. 

2017-0051PQ, 2017-Ohio-4247, ¶ 10. See State ex rel. Dillery v. Icsman, 92 Ohio St.3d 
Case No. 2018-00950PQ -20- REPORT AND RECOMMENDATION 

312, 314, 750 N.E.2d 156 (2001) (a request was overly broad where it asked for “any 

and all records...containing any reference whatsoever to [the requester]”); State ex rel. 

Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 246, 643 N.E.2d 126 (1994) (request 

was overly broad where it sought information “regarding or related to” any pro-animal 

rights action group or individual). 

{¶39} Third, this request asks for research through office records to find those 

containing certain information, rather than reasonably identifying specific records. A 

public office is not required to “seek out and retrieve those records which would contain 

the information of interest to the requester.” State ex rel. Fant v. Tober, 8th Dist. 

Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, * 3-4 (April 28, 1993), aff’d 68 Ohio 

St.3d 117, 623 N.E.2d 1202 (1993). See also State ex rel. O’Shea & Associates Co., 

L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio App.3d 218, 2010-Ohio-3416, 941 

N.E.2d 297, ¶¶ 7-11 rev’d in part on other grounds, 131 Ohio St.3d 149, 2012-Ohio-115, 

692 N.E.2d 297; State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 

2009-Ohio-1901, 609 N.E.2d 1105, ¶¶ 14-15; Ebersole v. Powell, Ct. of Cl. No. 

2018-00478PQ, 2018-Ohio-4597, ¶ 28; Kanter at ¶ 11. 

{¶40} Fourth, the Gazette’s request for all correspondence relating to Freund, 

Freeze & Arnold or McIntosh does not identify records in a way that reasonably enables 

their identification and retrieval. The request is not limited by a specific department, 

litigation file, physical location, record retention series, email domains, or any other 

means of narrowing the boundaries for retrieval within the office. See Kanter at ¶ 10. 

{¶41} Finally, the request is not limited to any date range. 

{¶42} I find that the request for “all correspondence with the insurance carrier 

related to Freund, Freeze & Arnold and/or Attorney Sandra R. McIntosh being retained 

and throughout the retainer” is improperly ambiguous, overly broad, and does not 

reasonably identify the records sought. I find the request is moot as to the requested 

insurance policy. 

Documents Identified as Responsive to Request No. 5. 
Case No. 2018-00950PQ -21- REPORT AND RECOMMENDATION 

{¶43} A public office’s voluntary effort to provide some responsive records, 

notwithstanding overbreadth of the request, is considered favorably in evaluating its 

response. State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 

N.E.2d 1105, ¶ 6, 14. In response to the order of September 24, 2018, Chillicothe CS 

identified and filed under seal two records it deems responsive to Request No. 5. 

(Supplemental Response at 2). The records are (1) a copy an email dated November 1, 

2017 from Jennifer Bergquist, a claims specialist for Liberty Mutual, to Jon Saxton, the 

superintendent of Chillicothe CS (Exh. 1, filed under seal); and (2) a letter dated 

October 9, 2018 from Bergquist to Deborah Lewwell, treasurer of Chillicothe CS (Exh. 2, 

filed under seal.) Chillicothe CS has not claimed that either of these documents is 

subject to any exception to disclosure. (Supplemental Response at 2-3). I find that 

Chillicothe CS must provide the Gazette with a copy of the November 1, 2017 email. 

However, the October 9, 2018 letter does not fall within the reach of Request No. 5, as it 

did not exist at the time of the May 7, 2018 request. State ex rel. Hogan Lovells U.S., 

L.L.P. v. Dept. of Rehab. & Corr., Slip Opinion No. 2018-Ohio-5333, ¶ 29. 

Request No. 6 for “An engagement letter in which the School District laid 

out the terms of the engagement. We believe this is dated 10/13/17.” 

{¶44} This request is arguably ambiguous in that “engagement letter” is not 

defined, and is identified only as a document “in which the School District laid out the 

terms of the engagement” (See analysis above regarding ambiguity and overbreadth of 

Request No. 5). The request is apparently based on a reference to “questions you had 

about the date, scope of work, and who initiated it, etc.” in a May 23, 2018 email to Ison. 

Lawwell stated: “Here is what I can tell you. The date of the correspondence was 

10/13/2017, she is no longer actively engaged, and she was appointed insurance 

council [sic].” (Am. Compl., Exh. C.) 

{¶45} In response to the special master’s order to produce the referenced letter 

of that date, Chillicothe CS submitted Exh. 3 under seal. Exh. 3 is a representation 

notice from McIntosh to Jon Saxton, and its content is primarily the Statement of 
Case No. 2018-00950PQ -22- REPORT AND RECOMMENDATION 

Insured Client’s Rights provided in accordance with the Ohio Rules of Professional 

Conduct. McIntosh identifies herself as counsel retained by Liberty Mutual, gives 

contact information, and expresses her preferences regarding future communication. 

The letter does not outline the scope of legal work to be done. I find that the letter is not 

an “engagement letter” but that sufficient information was exchanged in the 

correspondence for Chillicothe CS to identify a letter related to appointed defense 

counsel, dated October 13, 2017. 

{¶46} Chillicothe CS argues that the letter is protected from disclosure by 

common-law attorney-client privilege. (Response at 6-7; Supplemental Response at 3). 

In Ohio, the attorney-client privilege is defined as follows: 

Under the attorney-client privilege, ‘(1) [w]here 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 his instance permanently protected (7) from disclosure 

by himself or the legal adviser, (8) unless the protection is waived. 

State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 

824 N.E.2d 990, ¶ 21. “The attorney-client privilege, which covers records of 

communications between attorneys and their government clients pertaining to the 

attorneys’ legal advice, is a state law prohibiting release of these records.” State ex rel. 

Toledo Blade Co. v. Toledo-Lucas County Port Auth., 121 Ohio St.3d 537, 

2009-Ohio-1767, 905 N.E.2d 1221, ¶ 22. The party asserting attorney-client privilege 

must show the applicability of the privilege. MA Equip Leasing I, LLC v. Tilton, 

2012-Ohio-4668, 980 N.E.2d 1072, ¶ 21 (10th Dist.). 

{¶47} A record is not excepted from disclosure under the Public Records Act 

merely because it is received from a public office’s legal counsel—it must meet all the 

elements of the privilege. Furthermore, any portion of a communication from an attorney 

that is nonexempt, such as the general title of the matter being handled, underlying 

facts of the case, dates of service, financial arrangements, and the like, must be 

disclosed. State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 
Case No. 2018-00950PQ -23- REPORT AND RECOMMENDATION 

980 N.E.2d 975, ¶ 15; Plogger v. Myers, 2017-Ohio-8229, 100 N.E.3d 104, ¶ 9 (8th 

Dist.). 

{¶48} Chillicothe CS offers only the bare assertion that “[a]ll communications 

between [Ms. McIntosh] and the Board are protected by the attorney-client privilege” 

(McIntosh Aff. at ¶ 3, Mullins Aff. at ¶ 2, 2.b.) However, a general assertion of privilege 

does not meet the burden of proving the elements of attorney-client privilege. Rather, 

The claim of privilege must be made question-by-question and documentby-document. 

Factual showing needed to demonstrate that a communications [sic] 

is privileged. Conclusory descriptions of documents in a privilege log are 

insufficient to meet the producing party’s burden of establishing that the 

document was an attorney-client communication. In re Search Warrant 

Executed at Law Offices of Stephen Garea, 1999 U.S. App. LEXIS 3861, 

1999 WL 137499, *1-*2 (6th Cir. March 5, 1999). The party asserting 

privilege “must make a minimal showing that the communication involved 

legal matters. This showing is not onerous and may be satisfied by as little 

as a statement in the privilege log explaining the nature of the legal issue 

for which advice was sought.” Id. That showing “must provide the 

reviewing court with enough information for it to make a determination that 

the document in question was, in fact, a confidential communication 

involving legal advice.” 1999 U.S. App. LEXIS 3861, [WL] *2. 

Williams v. Duke Energy Corp., S.D. Ohio No. 1:08-CV-00046, 2014 U.S. Dist. LEXIS 

109835, *14-15 (Aug. 8, 2014). See Williamson v. Recovery Ltd. P’ship., S.D. Ohio 

No. 2:06-CV-292, 2016 U.S. Dist. LEXIS 125640, *8-10 (Sept. 15, 2016) (proponent 

made only conclusory statements, rather than an actual showing, that the attorney-client 

privilege applied to the subpoenaed documents).3 Neither the pleadings nor the 

affidavits identify what particular content is confidential, or why. Neither the pleadings 

nor the affidavits identify the nature of any legal issue upon which legal advice was 

sought or provided. I find that Chillicothe CS fails to meet its burden to support, or 

 3 There is no material difference between Ohio's attorney-client privilege and the federal attorneyclient privilege. Guy v. United Healthcare Corp., 154 F.R.D. 172, 177 (S.D. Ohio 1993), fn.3; Inhalation 

Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., S.D. Ohio No. 2:07-CV-116, 2012 U.S. Dist. LEXIS 

121830 (August 28, 2012). 
Case No. 2018-00950PQ -24- REPORT AND RECOMMENDATION 

specifically assert, that this letter was a communication pertaining to an attorney’s legal 

advice. 

{¶49} Review of Exh. 3 in camera confirms the absence of privileged content. 

The October 13, 2017 letter merely identifies the general title of the matter being 

handled, notifies the school board that Liberty Mutual had retained the author to 

represent the board in that matter, gives contact information and communication 

preferences, and copies a boilerplate Statement of Insured Client’s Rights. I find that the 

letter contains only administrative arrangements preceding any legal advice or 

communication pertaining to a legal issue. See McCollough v. Johnson, Rodenberg, & 

Lauinger, D. Mont No. CV-07-166-BLG-CSO, 2009 U.S. Dist. LEXIS 675, *2 (Jan. 6, 

2009); Stern v. Shelley, N.D. Ga No. 3:09-CV-00082-JTC-RVG; 4:08-CV-2753-TLW, 

2009 U.S. Dist. LEXIS 130148, *30 (Aug. 31, 2009). The bulk of the letter is a verbatim 

copy of the Statement of Insured Client’s Rights from the Ohio Rules of Professional 

Conduct, Rule 1.8(f) – a public document. I find that the common-law attorney-client 

privilege does not apply to any portion of the letter. 

Conclusion 

{¶50} Accordingly, I recommend that the court find that the claims in this action 

are moot as to the records provided to requester prior to the issuance of this report and 

recommendation. I further recommend the court issue an order GRANTING requester’s 

claims for 1) production of the portions of the Title IX report found not subject to 

redaction, 2) a copy of the email dated November 1, 2017 from Jennifer Bergquist to 

Jon Saxton, and 3) a copy of the October 13, 2017 letter from McIntosh. I recommend 

that costs be assessed equally to the parties. 

{¶51} Pursuant to R.C. 2743.75(F)(2), either party 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 recommendation. Any objection shall be specific and state with 

particularity
Case No. 2018-00950PQ -25- REPORT AND RECOMMENDATION 

 all grounds for the objection. A party shall not assign as error on appeal the court’s 

adoption of any factual findings or legal conclusions in this report and recommendation 

unless a timely objection was filed thereto. R.C. 2743.75(G)(1). 

 

 JEFFERY W. CLARK 

Special Master 

Filed December 26, 2018 

Sent to S.C. Reporter 1/11/19