[Cite as Seiverth v. Perrysburg , 2023
- Ohio
- 2319.]

IN T HE COURT OF CLAIMS OF OHIO

{¶1} This matter is before the special mast er for a report and recommendatio n pursuant to R.C. 2743.75(F). He recommend s that:

- Respondent be ordered to produce to R equester unredacted copies of all records that were redacted based on attorney

- client privilege or R.C. 3707.17.

- Respondent be ordered to produce to Requester all recor ds filed with the court for in camera review.

- Requester recover his filing fee and the costs he incurred in connection with this case.
I. Background

. {¶2} Requester Jonathan Seiverth is an employee of the Respondent City of Perrys burg (“the City”), working in the City’s Fire Department. Their relationship has been contentious, resulting in grievances and compelled counseling with a psychologist at Bowling Green State University (“BGSU”). Complaint , filed December 16, 2022, at p. 2; By Order of the Special Master P ursuant to R.C. 2743.75(E)(3)(c) Submission of Evidence by the Requester , filed June 20, 2023, (“ Requester’s Evidence ”), p. 163. 1

1 All references to specific pag es of unpaginated matters filed in this case are to pages of the PDF copies posted on the Court’s online do cket. References to specific pages of internally paginated filings are based on their internal pagination. JONATHAN DOUGLAS SEIVERTH Requester

v. CITY OF PERRYSBURG Respondent Case No. 2022

- 00850PQ Special Master Todd Marti
REPORT AND RECOMMENDATIONCase No. 202 2

- 00850PQ

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- REPORT AND RECOMMENDATION

{¶3} Mr. Seiverth made several public records requests to explore the bases for the City’s actio ns. On May 7, 2022, he requested records related to the Fire Chief. On August 11, 2022, he requested records regarding his disciplinary proceedings. Sometime prior t o August 18, 2022, he apparently requested records related to the basis for a counseling le tter. Requester’s Evidence , p p. 1 299

- 1300 ; Complaint , pp. 48, 87, 99. The City produced records in response to those requests. Requester’s Evidence , p p. 164 , 2878

- 29 20 (Ex. J). Those requests are not at issue here. {¶4} Mr. Seiverth made the request giving rise to this case on September 18, 20 22. He sought, among other things, records concerning communications between officials in the City’s Fire Department and overall administration and records related to the BGSU
counse ling. 2 Complaint , pp. 10

- 11, 29, 37, 78

- 7 9; Requester’s Evidence , pp. 164, 166, 2860 , 2861. The City responded to those requests by producing unredacted records, redacted records, and by withholding other records. The City asserted attorney

- client privile ge as the basis for the redactions and wit hholdings. Requester’s Evidence , p p. 164, 176

- 395 (Ex. A), 2927

- 2928 (Ex. L ). {¶5} The City consulted attorneys and their agents in connection with those disputes and public records requests. It retained outside counsel and the City’s in

- house counsel was also involved. Those counsel retained individuals at BGSU as their agents to help them represent the City in its disputes with Mr . Seiverth. Evidence In Support of Defense of Case , filed May 30, 2023, pp. 3

- 4. The same o utside c ounsel ha ve represented the City in this case. Documents for In Camera Review , filed May 30, 2023 (“ In Camera Records ”) pp. 001

- 009 ; Notice of Appearance , f iled December 21, 2022. {¶6} Mr. Seiverth filed this case to contest the response to his September 18 request. The City produced additio nal records after the case was fi led , many of which
were redacted. Requester’s Evidence , pp. 167 , 396

- 729 (Ex. B1), 730

- 857 (Ex. B2), 863

- 2848 (Ex. C) , 2969

- 2931 (Ex. M), 2932

- 2936 (Ex. N)

. {¶7} Mediation failed to resolve all the issue s , so t he special maste r set a schedule for the parties to file evidence and memoranda supporting their positions. The City was

2 The other requests were withdrawn or resolved.Case No. 202 2

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also ordere d to file unredacted copies of all records responsive to Mr. Seiverth’s requests that it contends are exempted from production by R.C. 149.4 3(A)(1)(v) or some other law for camera review. Order Terminating Mediation , entered May 15, 2023. {¶8} The City did not file unredacted copies of records it produced in redacted form, but did file what appear to be some of the withheld records. In Camera Recor ds . It did not file any evidence explaining the redacted or withheld records. 3 It did file a motion asking that Mr. Seiverth’s complaint be dismissed pursuant to Civ. R. 12(B)(6). Respondent City of Perrysburg’s 12 (

B)(6) Motion to Dismiss Requester’s Compl aint , filed June 14, 2023 (“ MTD ”)

. {¶9} Mr. Seiverth argues that the City waived the attorney

- client privilege, that R.C. 3701.17 does not justify the City’s actions , and that the City’s productions were untimely in violation of R.C. 149.43(B)(1). Requester’s Evidence , pp. 166

- 175.
II. Analys is

. A. The City’s motion to dismiss should be denied

. {¶10} The City seeks dismissal because, in its view, the complaint fails to state a claim for relief. It makes several arguments in support of that proposition : that it has produc ed all responsive records not excepted from production b y R.C. 149.43(A)(1)(v), that Mr. Seiverth has not met his burden of proof, and that the City’s public records bo n a fides are established by its responding to other requests. MTD

. {¶11} “ A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. Thus, the movant may not rely on allegations or evidence outside the complaint [.].” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs ., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992) (autho rities omitted). Each of the bases for dismissal the City urges require consideration of matters outside the complaint. The special master therefore recommends that the motion should be denied and that this case be resolved o n the merits.
B. The City has not proven that the exemptions it invokes apply here

.

3 The City’s E vidence In Support of Defense of Case consisted entirely of arguments of counsel. It included no affidavits or other actual evidence.Case No. 202 2

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{¶12} The City does not contest that it is a public office, that the materials Mr. Seiverth requests are records, or that his requests were sufficient to tr igger obligations under R.C. 1 49.43. Instead, it argues that the redacted/withheld records are exempted from the class of public records by R.C. 149.43(a)(1)(v) because they are covered by the attorney

- client privilege and/or R.C.3701.17(B). The City has n ot met its burden of proving t hat those exemptio ns apply.
1. The City has the burden of proving the applicability of the exemptions it asserts

. {¶13} “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 d emocratic system.” State ex rel. Dann v. Taft , 109 Ohio St.3d 364, 2006

- Ohio

- 1825, 848 N.E.2d 472, ¶ 20. The Court has therefore “repeatedly espoused” the principle “that “R.C. 149.43 *** is construed liberally in favor of bro ad access, and any doubt is re solved in favor of disclosure of public records.” Id

. {¶14} Because of that, a public office asserting an exemption from its general duty to provide access to public records bears the burden to “prove facts clearly establishing the applicability of the exemptio n.” Welsh

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

. at ¶¶ 53, 77. “Unsupported conclusory statements *** are insufficient.” Id . at 3 5. {¶15} Courts determine whether a n office has met t hat burden by conducting “an individualized scrutiny of the records in question.” Id . at ¶ 29. The public office must produce extrinsic evidence if the applicability of the exemption is “not obviously apparen t and manifest just from the c ontent of the reco rd itself[.]” Id. at, ¶ 35. See also id . at ¶¶ 30, 50, 53. {¶16} The office must make a strong showing. It “does not meet this burden if it has not proven that the requested records fall squarely within the excepti on,” and the courts “resolve a ny doubt in favor of disclosure.” Id . at ¶¶ 27, 63 (emphasis added). See also id . at ¶¶ 50, 63. Given that, “it is not enough to say that a record is probably within a statutorily prescribed exemption[.]” Id . at ¶ 63 (emphasis sic.).Case No. 202 2

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2. The City has not prov en that i ts redactions or withholdings were justified by the attorney - client privilege. a. The City has the burden of proving that the records at issue are covered by the attorney - client privilege

. {¶17} Similar principles and standar ds control the attorney

- client privilege

. Because the privilege hinders discovery 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 exe mptions *** are distinctly exc eptional[. ]” In re Story , 159 Ohio St. 144, 148, 111 N.E.2d 385 (1953). “The investigation of truth and the enforcement of *** duty demand the restriction, not the expansion, of *** privileges,” so the privilege “should be r ecognized only within the narr owest limi ts required by principle.” Id . at 149. Accord, Perfection Corp. v. Travelers Cas. & Sur ., 153 Ohio App.3d 28, 2003

- Ohio

- 3358, 790 N.E.2d 817, ¶ 26 (8th Dist.) (“The privilege *** should be strictly confined within th e narrowest possible limits un derlying i ts purposes”). In short, there “must be good reason, plainly shown” for applying the privilege. In re Story , 159 Ohio St. at 149. {¶18} Because of those principles, “the party claiming the privilege has the burden of prov ing that the privilege applies [.]” Westf ield Ins. Group v. Silco Fire & Sec ., 5th Dist. Stark No. 2018CA00122, 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 Dis t.), ¶ 21. That requires proof of every element of the privilege. Cincinnati 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. LEX IS 109835, at *14 (Aug. 8, 2014); Soc. Corp. 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 differ ence between Ohio’s attorney

- c lient privilege and the federal attorney

- client privilege”). The privilege applies: “‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the co mmunications 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 by the legal adviser, (8) unless the protection isCase No. 202 2

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waived.’” State ex rel. Lanham v. DeWine , 13 5 Ohio St.3d 191, 201 3

- Ohio

- 199, 985 N.E.2d 467, ¶ 27.
b. The C ity has not proven the propriety of its attorney - client based redactions

. {¶19} As just discussed, the party asserting a privilege has the burden of proving facts establishing the elements of the privi lege. In the public r ecords setting, that usually
r equires the public office to file the disputed records for in camera review and, if the elements of the privilege are not evident from the records themselves, to submit other evidence establishing those el ements. Id . at ¶ 27 ; Welsh

- Huggins , 163 Ohio St.3d 337 , 35. See also id

. at ¶¶ 30, 50, 53. That allows a court to conduct “ an individualized scrutiny of the records in question.” Id . at ¶ 29. That is why the special master ordered the City to file unredacted copies of material s it claimed are exempted from pr oduction and any other evidence it relies upon to support its position. Order Terminating Mediation , ¶ B. {¶20} The City has provided nothing s upporting its redactions. Despite being ordered to do so, it did not file unredacted c opies of those records. It fil ed no other evidence that would allow the court to discern attorney

- client based grounds for the redactions. It has failed to carry its burd en regarding its attorney

- client

- based redactions. {¶21} That is not changed by the City’s assertion that Mr. Seiverth ha s n ot carried his burden of proof. MTD , p. 5. That assertion fails for two reasons. {¶22} First, the Supreme Court has rejected the proposition that an office’s “ burden of production does not arise unless and until the requester ha s established its burden of pe rsu asion .” Id

. at ¶ 54. The office’s assertion that the requester has not met its burden “does not in any way relieve the publi c office *** from having to prove the factual basis of the exemption on which it relies. ” Id

. To th e contrary, a public office’s “ as sertion of a statutory exemption activates the corresponding burden of production to prove facts establishing the clear appl icability of the exemption .” Id

. {¶23} Second , Mr. Seiverth fully met his burden. He was obligated to pr ove that he made a proper publ ic records request that was denied and to do so by clear and convincing evidence. Id . at ¶ 33. Mr. Seiverth pled those facts and provided unrebuttedCase No. 202 2

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evidence proving them. That constitutes clear and convincing evidence of thos e essential facts

. {¶24} The speci al master therefore recommends that the City be ordered to produce unredacted copies of all records redacted based o n attorney

- client privilege.

c. The City’s disclosure of some of the In Camera Records withheld based on attorn ey - client privilege resulted i n a waiver of the privilege for all the In Camera Records withheld on that basis

. {¶25} The City did not meet its burden of proving the eighth Lanham requirement as to the records withheld based on attorney

- client privilege, that t he privilege was not waived. T o the contrary, the evidence establishes a waiver by establishing that that the Cit y disclosed privileged records to Mr. Seiverth. {¶26} “ A client ’ s voluntary disclosure of privileged communications is inconsistent with an asserti on of the attorney

- client priv ilege. ” Hollingsworth v. Time Warner Cable , 157 Ohio App.3d 539, 2004

- Ohio

- 3130, 81 2 N.E.2d 976 (1st Dist.) , ¶ 65. “ Such disclosure waives any subsequent claim of privilege with regard to communications on the same subject mat ter. ” Id

. Accord, Mid

- American Natl. Bank & Trust Co. v. Cincinnati Ins. Co ., 74 Ohio App.3d 481, 4 90 , 599 N.E.2d 699 (6th Dist.1991) ; Cline v. Reliance Trust Co ., N.D.Ohio No. 1:04

- CV

- 02079, 2005 U.S. Dist. LEXIS 26066, at * *9

- 10 (Oct. 31, 2005) (applyin g Ohio law). The resulting wai ver “ is not limited to the disclosed document or communication, ” Id

. at * 11, but i nstead applies to “ all other communications which deal with the same subject matter .” Mid

- American , 74 Ohio App.3d at 490 . Those principles app ly to the privilege when it is asserted in response to public records requests. State ex rel. Hicks v. Fraley

, 166 Ohio St.3d 141, 2021

- Ohio

- 2724, 184 N.E.3d 13 , ¶¶ 2, 15

- 23; Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs. , Ct. of Cl. No. 2019

- 00789PQ, 2020

- Ohio

- 4856, ¶ 29 , adopted 2020

- Ohio

- 5281 (McGrath, J). {¶27} The City waived the privilege by producing otherwise privileged records in unredacted form

. The City claims that the privilege protects communications between the City’s Human Resources Manager ( Kelly Chafant), the City’s Law Director (Katheryn Sandretto), its outside counsel (Jonathan Downes , Jan tzen Mace ), and the persons at BGSU involved with Mr. Seiverth’s counseling (Dr. Dworsky, Theresa Kelso )

. Evidence In Support of Defense of Case , pp. 3

- 4

. It specifically identified several email exchangesCase No. 202 2

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between those persons as privileged by filing the m as pp. 001

- 009 of the In Camera Records . A comparison of those pages of the In Camera Records to records attached to the Complaint and filed in Reques ter ’s Evidence reveals that a number of those emails were produced to Mr. Seirverth in unredacted form, both before this case was filed (as evidenced by their being attached to the complaint) and after this case was filed . See Requester’s Evidence , pp. 167 , 396

- 729 (Ex. B1), 730

- 857 (E x. B2), 863

- 2848 (Ex. C), 2969

- 2931 (Ex. M), 2932

- 2936 (Ex. N)

. In Camera Record s p. Email Date/Time Complaint p p . Requester’s Evidence pp.

006 Thursday, August 18,

2022 8:50 AM 47, 9 6 734, 739

- 740, 753, 757, 761

- 762, 765 , 773, 805, 829, 844

- 845, 1222 , 1226, 1230, 1234, 1367

- 1368, 1779, 1785, 1791, 1796, 1801, 1806, 1861, 1865

- 1866, 1869, 1873, 1877

- 1878, 1881, 1889, 1898, 2299, 2305, 2335,

2344 006 Monday, August 22,

2022 11:07 AM 96 739, 765, 772, 805, 828, 1225, 1229, 1233, 1367, 1779, 1785, 1791, 1796, 1801, 1806, 1881, 1888, 1898, 2298, 2304, 2334

- 2335, 2343

- 2344 002 Tuesday, August 23 ,

2022 12:32 PM 46, 95 801, 825, 1894, 2933
001 Tuesday, August 23,

2022 3:18 PM 45, 94 80 0 , 8 25, 189 3 , 293 2

{¶28} The City has made no claim that those productions were inadvertent. Those

“ voluntary disclosure [s] of privileged communications [are] inconsistent with an assertion of the attorney

- client privilege” and waive any “ claim of privilege with regard to communications on the same s ubject matter.” Hollingsworth , 157 Ohio App.3d 539, ¶ 65. {¶29} That “subject matter” is the counseling that Mr. Seive rth was compelled to attend; that topic is common to both the disclosed documents and the balance of theCase No. 202 2

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documents withheld based on attorney

- c lient privilege. The special m aster therefore recommends that the City be ordered to produce all the In Camera Re cords withheld based on attorney

- client privilege. 3. The City has not proven that R.C. 3701.17(B) is applicable to the records at issue

. {¶30} The Ci ty’s argument that R.C. 3701 .17(B) prevents it from providing records responsive to Mr. Seiverth also fails for want of proof. That statute provides that:
Protected health information reported to or obtained by the director of health, the department of he alth, or a board of health o f a city or general health district is confidential and shall not be released witho ut the written consent of the individual who is the subject of the information unless the information is released pursuant to division (C) of thi s section or one of the foll owing applies (emphasis added). The plain text of this statute limits its applicabi lity to information “ reported to or obtained by ” the health

- related entities its lists. This court has therefore rejected arguments that R.C. 370 1.17(B) justifies other enti ties withholding records otherwise within the scope of R.C. 149.43. Shaffer v. Budish , Ct. of Cl. No. 2017

- 00690

- PQ, 2018

- Ohio

- 1539 , ¶ 40, adopted by order of February 22, 2018 (McGrath, J.). {¶31} The City has the burden of proving t he facts establishing the applicability of R.C. 3701.17(B) because it asserts the statute as an exemption from the general duty to produce public records. We lsh

- Huggins , 163 Ohio St.3d 337, ¶ 27. See also, Id . at ¶¶ 35, 54. It has produced no evidence that the information in the re dacted or withheld records was “ reported to or obtained by ” any of the entities listed in R.C. 3701.17(B). Its claim to that exempt ion fails for want of proof. The special master therefore recommends that the court reject the Cit y’s claim that R.C. 3701.1 7(B) prevents it from producing records responsive to Mr. Seiverth requests.
C. Costs

. {¶32} R.C. 2743.75(F)(3)(b) provides that the “agg rieved person shall be entitled to recover from the public office or person responsible for the pub lic records the amount of the filing fee of twenty

- five dollars and any other costs associated with the action[.]” Mr. Seiverth was aggrieved because the Cit y failed to produce records responsive to hisCase No. 202 2

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requests

. He is therefore entitled to recover her fil ing fee and all costs incu rred in this
case. D. There is no need to resolve Mr. Seiverth’s delay claim

. {¶33} Mr. Seiverth asserts a separate claim that the City violated R.C. 149.43(B)(1)’s timeliness requirement. T here is no need to decide the merits of t h is cla im because the s pecial m aster is already recommending that Mr. Seiverth be granted all the relief that would be available in this c ourt on t he claim (recovery of h is filing fee and costs). If “it is not necessary to decide more, it is necessary not to dec ide more , ” so there is n o need to address the timeliness claim

. Meyer v. UPS , 122 Ohio St.3d 104, 2009

- Ohio

2463, 909 N.E.2d 106, ¶ 53 (quoting PDK L aboratories Inc. v. United States DEA , 362 F.3d 786, 799 (2004) (Roberts J. concurring) ). III. Conclusion

. {¶34} In l ight of the foregoing, t he special master recommends that:

- Respondent be ordered to produce to R equester unredacted copies of all records that were redacted based on attorney

- client privilege and/or R.C. 3707.17.

- Respondent be ordered to produce to Reques ter all records filed wi th the court for in camera review.

- Requester recover his filing fee and the costs he incurred in connection with this case. {¶35} Pursuant to R.C. 2743.75(F)(2), either par ty may file a written objection with the clerk of the Court of Cl aims of Ohio within sev en (7) business days after receiving this report and recommendation. Any objection shall be specific and state with particularityCase No. 202 2

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all grounds for the objection. A party shall not assign as error on appeal the court’s adoption of any factual findings or le gal conclusions in th is report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).

TODD MARTI Special Master

Filed June 28, 2023 Sent to S.C. Reporter 7 / 7 /23