[Cite as Smith v. OSU Office of Univ. Compliance & Integrity , 2020-Ohio-5593.]

{¶1} “‘The Public Records Act serves a laudable purpose by ensuring that governmental functions are not conducted behind a shroud of sec recy.’” (Citation omitted.) State ex rel. ESPN, Inc. v. Ohio State Univ. , 132 Ohio St.3d 212, 2012-Ohio2690, 970 N.E.2d 939, ¶ 40. It has long been the rule in Ohio t hat public records are “the people’s records,” and the officials in whose custody they happen to be are merely trustees for the people. State ex rel. Kesterson v. Kent State Univ ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 9. Therefore, Ohio courts con strue the Public Records Act liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab.

& Corr ., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. A c laim under R.C.

2743.75 to enforce the Public Records Act must be established b y clear and convincing

evidence. Hurt v. Liberty Twp ., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). Request and Response {¶2} On April 30, 2020, requester Scott Elliot Smith made a request to respondent OSU for all “documents or other memorialized informa tion to or from the Ohio State University (OSU) that describes and details the sett lement of any of the following cases: United States District Court, Southern District of Ohio, Easter n Division

case Beaudin, et al vs. OSU , Case No. 2:19-cv-4634; SCOTT ELLIOT SMITH

Requester

v.

OSU OFFICE OF UNIVERSITY COMPLIANCE AND INTEGRITY

Respondent Case No. 2020-00442PQ

Special Master Jeff Clark

REPORT AND RECOMMENDATIONCase No. 2020-00442PQ -2- REPORT AND RECOMMENDATION

United States District Court, Southern District of Ohio, Easter n Division DeLong, et al. vs. OSU , Case No. 2:19-cv-5551; United States District Court, Southern District of Ohio, Easter n Division Disabato vs. OSU , Case No. 2:19-cv-02237; United States District Court, Southern District of Ohio, Easter n Division Doe et al vs. OSU , Case No. 2:19-cv-04433; United States District Court, Southern District of Ohio, Easter n Division Does 37-66 vs. OSU , Case No. 2:19-cv-03165; United States District Court, Southern District of Ohio, Easter n Division Does 67-87 vs. OSU , Case No. 2:19-cv-04397; United States District Court, Southern District of Ohio, Easter n Division

case Does 88-94 vs. OSU , Case No. 2:19-cv-04624; United States District Court, Southern District of Ohio, Easter n Division

case Does 140-150 vs. OSU , Case No. 2:20-cv-1188; United States District Court, Southern District of Ohio, Easter n Division

case Garrett vs. OSU , Case No. 2:18-cv-00692.” (Complaint, Exh. 1.) OSU’s Public Records Program Coordinator r esponded “This email acknowledges receipt of your public records request. We will re view your request and respond within a reasonable period of time.” ( Id ., Exh. 2.) On May 19, 2020, Smith sent a follow-up letter that concluded “Please provide the records o r advise a date you will be providing the records requested.” ( Id ., Exh. 3.) On May 20, 2020, OSU responded, “Please note that we are actively processing your request and w ill respond as soon as possible.” ( Id ., Exh. 4.) On May 21, 2020, Smith sent a third letter stating, in part: To date you have not complied with our request or provided a da te of anticipated compliance. To clarify our request, we seek * * * [ t]rue and accurate hard copies or electronically executed settlement docu ments or other memorialized settlement documentation signed by each part y and party representative and/or counsel for each party that sets fo rth all settlement terms and conditions of the settlement agreement for [the cases listed in the two previous letters]. ( Id ., Exh. 5.) On May 22, 2020, OSU replied, “We will review your clarified request and respond within a reasonable period of time.” ( Id ., Exh. 6.)Case No. 2020-00442PQ -3- REPORT AND RECOMMENDATION

{¶3} On July 16, 2020, with no further response from OSU, Smith file d a complaint pursuant to R.C. 2743.75 alleging OSU’s denial of tim ely access to public records in violation of R.C. 149.43(B). On October 2, 2020, OSU filed its response and a motion to file specified documents under seal. On October 5, 2020, the court granted the motion. On October 19, 2020, requester filed a reply as wel l as a memorandum in opposition to the motion to file under seal, and a motion to st rike.

Documents Filed Under Seal {¶4} As a preliminary matter, the special master granted OSU’s Sup.R . 45(E) motion to limit public access to 1) the withheld settlement agr eement, 2) an unredacted copy of the response, and 3) emails dated June 19 and June 20, 2020 that were referenced in the redacted response. Smith’s October 19, 2020 m emorandum in opposition to filing under seal and motion to strike argues 1) that discussion and filing of the emails is an improper disclosure of confidential mediation communications, 2) that

the “orders” contained in the emails are immaterial to this cas e, and, 3) that the settlement agreement is manifestly a public record which OSU fa ils to justify filing under seal. For the following reasons, I find no reason to disturb th e order of October 5, 2020 granting the motion to limit public access: 1) Both parties complain the other has violated or is attemptin g to violate mediation confidentiality. This court accepted documents repres ented as relevant to the public records issue in this action, after conf irming their potential relevance by review. Although the federal court emails are lik ely not protected mediation communications under the Uniform Mediation Act, 1 I determined their acceptance under seal was justified to assist determination of whether the district court rule serves as a public records e xception. In any

1 The confidentiality provision for mediation communications in R.C. 2710.07 excludes any records or communications that are subject to R.C. 149.43 or R. C. 121.22. Further, there is no privilege under R.C. 2710.03 for a mediation communication “contained in a written agreement evidenced by a record signed by all parties to the agreement.” R.C. 2710.05(A) (1).Case No. 2020-00442PQ -4- REPORT AND RECOMMENDATION

case, each party’s remedy for the other’s alleged violation of mediation confidentiality lies in the federal court. 2) Smith’s objection to the emails as immaterial begs the quest ion for which they were submitted. The special master and the court cannot evaluat e the issue of materiality without examining the emails. 3) The settlement agreement is both the subject of the claim fo r production, and alleged to document the asserted exception. Submission of such documents

for in camera review is a routine, often necessary practice in public record s

cases. State ex rel. Lanham v. DeWine , 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 22. I found that such review is necessary in this case. Accordingly, the motion to strike is DENIED. Settlement Agreements {¶5} Smith’s request was for nine “signed settlement documents.” The responsive document submitted by OSU under seal is a single Mas ter Settlement and Release encompassing settlement of eight of the cases Smith lis ted, but not of Garrett, et al. v. The Ohio State University , S.D. Ohio Case No. 2:18-cv-692, which the document indicates was still pending. (March 6, 2020 Master Set tlement and Release at

Section 23. Other Settlements , under seal.) {¶6} It is well-settled in Ohio that settlement agreements involving public offices are public records subject to disclosure. State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs ., 80 Ohio St.3d 134, 136, 684 N.E.2d 1222 (1997); State ex rel. WBNS TV, Inc. v. Dues , 101 Ohio St.3d 406, 2004-0hio-1497, 805 N.E.2d 1116, ¶ 23- 29; State ex rel. Sun Newspapers v. Westlake Bd. of Educ. , 76 Ohio App.3d 170, 601 N.E.2d 173 (8th Dist.1991) (settlement agreement is public desp ite parties’ agreement to not disclose terms); State ex rel. Kinsley v. Berea Bd. of Educ ., 64 Ohio App.3d 659, 582 N.E.2d 653 (8th Dist.1990) (settlement agreements are not t rial preparation records). Even drafts of settlement agreements are “records” th at document officeCase No. 2020-00442PQ -5- REPORT AND RECOMMENDATION

policies and decisions in the negotiation process. State ex rel. Cincinnati Enquirer v. Dupuis , 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163 ¶ 20. Altho ugh mediation continues in several related federal cases, the March 6, 2020 M aster Settlement and Release is a signed settlement agreement of the cases it encomp asses. (Response at 2.) Exception Asserted {¶7} OSU does not dispute that settlement agreements are, absent an applicable exception, 2 public records when kept by a public office. See Dues at 29. However, OSU asserts that a federal district court local rule, S.D. Ohio Civ .R. 16.3(c), serves as “federal law” prohibiting release of the settlement agreement a t issue. (Response at 7- 8.) See R.C. 149.43(A)(1)(v). OSU asserts no other exceptions. {¶8} The burden to establish applicability of the exception rests on OSU. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office , 153 Ohio St.3d 63, 2017-Ohio8988, 101 N.E.3d 396, ¶ 15. Exceptions to disclosure are strict ly construed against the public records custodian. State ex rel. Rogers v. Dept. of Rehab. & Corr ., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. A custodian do es not meet this burden if it has not proven that the requested records fall squ arely within the exception. State ex rel. Cincinnati Enquirer v. Jones-Kelley , 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 of public records. State ex rel. James v. Ohio State Univ. , 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994). {¶9} Ohio courts have long rejected the argument that local rules of courts, or agreed court orders, are state law prohibiting the release of r ecords. “A local rule of court cannot prevail when it is inconsistent with the express r equirements of a statute.”

State ex rel. MADD v. Gosser , 20 Ohio St.3d 30, 485 N.E.2d 706 (1985), paragraph

2 A public records exception is a law prohibiting or excusing di sclosure of records that would otherwise be public.Case No. 2020-00442PQ -6- REPORT AND RECOMMENDATION

three of the syllabus (rule restricting disclosure of court DWI records); State ex rel. Highlander v. Rudduck , 103 Ohio St.3d 370, 2004-Ohio-4952, 816 N.E.2d 213, ¶ 1, 11 (judge sealed case record upon agreed judgment entry); Dues at 30-39 (Court rejected judge’s “judicially created” exception). {¶10} S.D. Ohio Civ.R. 16.3 3 sets out provisions governing alternative dispute resolution in the United States District Court, Southern Distri ct of Ohio, and provides in pertinent part: (c) Confidentiality. (1) In addition to Fed.R.Evid. 408 and any other applicable pri vilege, pursuant to 28 U.S.C. § 652(d), evidence of conduct or statemen ts made in settlement negotiations is not admissible to prove liability for or the invalidity of a claim or its amount in the case in which the se ttlement negotiations occur. In order to promote candor and protect the integrity of this Court's ADR processes, in addition to other protections af forded by law, all communications made by any person (including, but not limited to parties, counsel, and Judge or other neutral participants) duri ng ADR proceedings conducted under the authority of this Court are con fidential and are subject to disclosure only as provided in subsection (c )(3) of this Rule. * * * (2) Communications deemed confidential by this Rule include, bu t are not limited to, statements or expressive conduct occurring during t he ADR proceeding itself, such as offers to compromise, statements abo ut the value of a case or claim, statements about the strength or weak ness of a claim or defense, and statements concerning the possible resolu tion of all or part of a case. Confidential communications also include communications made in connection with selecting an ADR process

, initiating the process, and selecting or retaining a mediator o r other neutral. (3) Communication deemed confidential by this Rule may be discl osed, if such disclosure is not otherwise prohibited by law or court ord er, only in the following circumstances:

* * *

3 https://www.ohsd.uscourts.gov/sites/ohsd/files//Local%20Rules%2 0%28effective%20January%2 01%2C%202020%29.pdf (Accessed Oct. 26, 2020.)Case No. 2020-00442PQ -7- REPORT AND RECOMMENDATION

(E) The disclosure is otherwise required by law.

* * * (e) Remedies and procedures not specified in this rule. (1) This Court, or any Division or location of this Court, may by general order provide supplemental procedures for ADR that are not inco nsistent with this Rule and applicable law.

Under Local Rule 16.3, A Written Settlement Agreement is not a “Mediation Communication”

The Southern District of Ohio has found that “Local Civil Rule 16.3(c) reaches only ‘communications’ and not the terms of the parties' Settlement A greement itself.” William F. Shea, LLC v. Bonutti Research, Inc ., E.D.Ohio No. 2:10-cv-615, 2014 U.S. Dist. LEXIS 129887, *7. Local Rule 16.3 does not apply to the settlem ent agreement before this court because such a concluded, signed contract is not a m ediation “communication.” This finding is independently dispositive of t he sole issue in this case. The Ohio Public Records Act Supe rsedes S.D. Ohio Civ.R. 16.3(c) as “Disclosure Otherwise Required by Law” {¶11} Separately, even were the Master Settlement and Release found t o be a mediation “communication,” it would still be excluded from conf identiality by another provision of the local rule. S.D. Ohio Civ.R. 16.3(c)(3)(E) pro vides that: “Communication deemed confidential by this Rule may be disclosed [if the] disc losure is otherwise required by law.” The phrase “otherwise required by law” broadl y refers and defers to any federal or state law that requires the communication to be disclosed. In State ex rel. Cincinnati Enquirer v. Daniels , 108 Ohio St.3d 518, 523, 2006-Ohio-1215, 844 N.E.2d 1181, the Court found that “health information” protected by th e federal Health Insurance Portability and Accountability Act (HIPAA) must be di sclosed in response to an Ohio public records request under an identical "required by law" exception in the HIPAA privacy rule. Id . at ¶ 25-28. The federal Southern District Court applies S.D. Ohio Civ.R. 16.3(c) in conformity with Daniels : “Although the Local Civil Rules do notCase No. 2020-00442PQ -8- REPORT AND RECOMMENDATION

expressly define ‘otherwise required by law,’ the obvious meani ng of this phrase encompasses statutory or common law mandates that would necessi tate disclosure.”

Shea v. Bonutti at *4. I conclude that public records production required by R. C. 149.43(B) is disclosure “required by law” within the meaning of S.D. Ohio Civ.R. 16.3(c)(E). Southern District of Ohio Supplem ental Procedures for Alternati ve Dispute Resolution

The Southern District has further held that Because Local Civil Rule 16.3(c) reaches only “communications” and not the terms of the parties’ Settlement Agreement itself, section 3.5 of Southern District of Ohio Supplemental Procedures for Alternati ve Dispute Resolution (“Section 3.5”) becomes relevant. That section provi des that the parties may not disclose the “terms of any agreed upon sett lement” unless all parties agree in writing or one of the exceptions set forth in Local Civil Rule 16.3 applies

. (Emphasis added.) Shea v. Bonutti at *7. Because the “required by law” exception set forth in S.D. Ohio Civ.R. 16.3(c)(3)(E) does apply to these facts and circumstances, the supplemental procedures, by their own terms, do not prohibit di sclosure. {¶12} Further, although the supplemental procedures are written pursu ant to Rule 16.3(e)(1), OSU offers no authority for the proposition that th ey, too, carry the “force of law.” It is far from clear that supplemental procedures permitt ed by a local rule could

ever rise to the level of a “federal law” to which the Ohio Pub lic Records Act must yield. {¶13} Finally, the phrase “the terms of any agreed upon settlement,” if read to include both verbal and written agreements, would exceed the su pplement’s authorized amplification of a Rule that applies only to “mediation communi cations” and not to signed settlement agreements. 4 An equally justified reading that this phrase includes

4 “This Court, or any Division or location of this Court, may by general order provide supplemental procedures for ADR that are not inconsistent with this Rule and applicable law.” S.D. Ohio Civ.R. 16.3(e)(1).Case No. 2020-00442PQ -9- REPORT AND RECOMMENDATION

only verbal communication of the terms of an “agreed upon settl ement,” but not a subsequent written settlement contract, avoids any conflict. {¶14} Thus, all relevant federal and state statutes, cases, court rul es, and supplemental procedures confirm that public office settlement a greements in general, and the settlement agreement before this court in particular, a re not excepted from public records release by the local rule or the supplemental pr ocedures. I find that OSU has not met its burden to prove that the withheld record falls squarely within a valid public records exception. Failure to Provide Explanation for Denial, Including Legal Auth ority {¶15} “The primary duty of a public office when it has received a pub lic-records request is to promptly provide any responsive records within a reasonable amount of

time and when a records request is denied, to inform the requester of that denial and provide the reasons for that denial. R.C. 149.43(B)(1) and (3).” Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11. First, with respect to its belief that an exception to disclosure applied, I find that OSU reason ably relied on direction it obtained from the mediator that instructed OSU not to produce t he agreement. 5 A court’s ultimate finding that a public office violated R.C. 149 .43(B) does not preclude a finding that it had a plausible reason for denial. State ex rel. Doe v. Smith , 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 39; State ex rel. Cincinnati Enquirer v. Sage , 2013-Ohio-2270, 992 N.E.2d 1178, ¶ 51-54 (12th Dist.). Howeve r, having decided to deny the request, OSU failed to provide Smith with a written explanation, including legal authority, as required by R.C. 149.43(B)(3). See Doe at ¶ 43. OSU was not precluded from citing the local court rule to Smith in the explanation, as it has in its public pleadings herein. Although Smith was informed at second hand by the mediator of the mediator’s belief that the local rule applied, I find th at OSU itself failed to timely

5 The emails are attached to the version of OSU’s response filed under seal. Smith appears in the headers of both as a recipient.Case No. 2020-00442PQ -10- REPORT AND RECOMMENDATION

provide Smith with a written denial and explanation for the den ial, including legal authority, in violation of R.C. 149.43(B)(3).

Remedies {¶16} The Court of Claims may order recovery by a requester of his fi ling fee and other costs associated with the action that he incurred, if it “determines that the public office * * * denied the aggrieved person access to the public r ecords in violation of division (B) of section 149.43 of the Revised Code.” R.C. 2743. 75(F)(3)(b). The court assigns court costs based in part on determination of violation s. {¶17} Smith also requests reasonable attorney fees in his prayer for relief. However, R.C. 2743.75 provides for an award of attorney fees to a requester in only

one circumstance: If a court of appeals in any appeal taken under division (G)(1) of this section by the public office * * * determines that the public o ffice * * * denied the aggrieved person access to the public records in vio lation of division (B) of section 149.43 of the Revised Code and obviousl y filed the appeal with the intent to either delay compliance with the cour t of claims' order from which the appeal is taken for no reasonable cause or unduly harass the aggrieved person, the court of appeals may award rea sonable attorney’s fees to the aggrieved person * * *. R.C. 2743.75(G)(2). Therefore, attorney fees may not be awarded at this stage of the proceedings. {¶18} Finally, because this report recommends production of the reque sted record, it must address OS U’s conditional request:

If this Honorable Court concludes that Mr. Smith is entitled to the March 6, 2020 settlement agreement at this time, Ohio State respectfully requests that the Court, not Ohio State, provide it to him and dismiss t his action as moot. (Response at 11.) Smith’s claim will not be rendered moot by th e decision and order of this court until appeal time has passed and OSU has complied wi th the order. Even had OSU produced the records prior to the court’s decision, that ac t would not render theCase No. 2020-00442PQ -11- REPORT AND RECOMMENDATION

entire action moot since additional claims of timeliness, expla nation, and costs

remained to be determined. See Burfitt v. Greene , Ct. of Cl. 2019-00766PQ, 2020-Ohio639, ¶ 13 and cases cited therein. More fundamentally, OSU cann ot simply delegate its statutory responsibilities to this court.

Conclusion {¶19} Upon consideration of the pleadings, attachments, and affidavit s filed in this case, I recommend the court find that respondent violated R.C. 149.43(A)(1), and order respondent to provide requester with a copy of the withhe ld Master Settlement and Release. I further recommend the court find that respondent failed to timely provide the required explanation and legal authority for denial of the request. I recommend the court find requester entitled to recover from respondent the am ount of the filing fee of twenty-five dollars and any other costs associated with the act ion that were incurred by requester, but that requester is not entitled to attorney fees. I recommend court costs be assessed to respondent. {¶20} 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 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).

JEFF CLARK Special Maste r

Filed October 27, 2020 Sent to S.C. Reporter 12/8/20