[Cite as State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995.] 

THE STATE EX REL. MAHAJAN v. STATE MEDICAL BOARD OF OHIO. 

[Cite as State ex rel. Mahajan v. State Med. Bd. of Ohio, 

127 Ohio St.3d 497, 2010-Ohio-5995.] 

Mandamus — Public records — R.C. 149.43 — Confidential law-enforcement 

investigatory records — R.C. 4731.22(F)(5) — Confidentiality of 

information received by Medical Board pursuant to an investigation — 

Writ granted in part and denied in part — Request for statutory damages 

and attorney fees denied. 

(No. 2009-2293 — Submitted September 14, 2010 — Decided 

December 15, 2010.) 

IN MANDAMUS. 

__________________ 

Per Curiam. 

{¶ 1} This is an action for a writ of mandamus to compel respondent, the 

State Medical Board of Ohio, to provide access to unredacted copies of certain 

records related to one of its enforcement attorneys, pursuant to the Ohio Public 

Records Act, R.C. 149.43, and to award statutory damages and attorney fees. For 

those few parts of the requested records that the board improperly redacted, we 

grant the writ. For the vast majority of the records, in which the board properly 

redacted those portions that are exempt from disclosure, we deny the writ. We 

also deny relator’s request for statutory damages and attorney fees. 

I. Facts

{¶ 2} Relator, Mahendra Kumar Mahajan, M.D., is a physician licensed 

by the State Medical Board of Ohio to practice medicine in Ohio. Dr. Mahajan is 

a psychiatrist who has practiced in Dayton since 1982. On May 4, 2007, in 

connection with the board’s investigation of Dr. Mahajan, David P. Katko, an 
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enforcement attorney employed by the board, deposed him. On that same day, 

Nicholas E. Subashi, Dr. Mahajan’s counsel, mailed a letter to the board’s director 

complaining about Katko’s deposition conduct, which Subashi described as “rude, 

unprofessional, threatening, and intimidating.” Rebecca Marshall, the board’s 

chief enforcement attorney, responded that she and the director had met with 

Katko “to counsel him about the unprofessional impression that arose” from his 

conduct at the deposition. 

{¶ 3} The board notified Dr. Mahajan of its intent to take disciplinary 

action against him for violating R.C. 4731.22 by failing to maintain minimal 

standards of care. It held a hearing on the disciplinary charges against Dr. 

Mahajan in January 2009. After the hearing, Dr. Mahajan requested that the 

board provide him with copies of certain records, including the board’s personnel 

file for Katko. The board produced over 8,000 pages and several CDs of 

responsive records, including Katko’s personnel file. The personnel file did not 

contain letters to or from Dr. Mahajan’s counsel. 

{¶ 4} Because Dr. Mahajan’s attorney was surprised that his 

correspondence with the board was not included in the copy of Katko’s personnel 

file provided by the board, on April 9, 2009, he made a new request for 11 

categories of records relating to Katko. The board contacted the doctor’s attorney 

to advise him that his new records request was overbroad and to give him an 

opportunity to narrow it. Dr. Mahajan’s counsel then amended his request to ask 

for only those records received or created by board members or managementlevel personnel related to Katko’s May 4, 2007 deposition of Dr. Mahajan and 

any similar incidents involving Katko. 

{¶ 5} On May 1, 2009, the board responded to Dr. Mahajan’s revised 

records request by providing him with additional records. The board redacted 

portions of the requested records and provided the following detailed reasons for 

not disclosing the redacted material: 
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{¶ 6} 1. May 17, 2007 e-mail from Katko to the board’s chief 

enforcement attorney. The board redacted the name of the physician and a 

quotation from a deposition transcript based on R.C. 4731.22(F)(5) (protecting 

information received by the board pursuant to an investigation). 

{¶ 7} 2. Notes of May 18, 2007 telephone conversation with the court 

reporter who transcribed Katko’s May 4, 2007 deposition of Dr. Mahajan. The 

board redacted a portion of a question asking for the court reporter’s opinion 

concerning Katko’s behavior during the deposition. The redaction was based on 

Section 12112(d)(3)(B) and (d)(4), Title 42, U.S.Code (treating as confidential 

medical-records information obtained regarding medical condition or history of 

applicant or employee). 

{¶ 8} 3. Notes of May 22, 2007 telephone conversation with Dr. 

Mahajan’s attorney, Subashi. The board redacted the name of the physician, the 

discussion of the investigation, and a question asking for the attorney’s opinion 

concerning Katko’s behavior. This redaction was based on R.C. 4731.22(F)(5) 

and Section 12112(d)(3), Title 42, U.S.Code. 

{¶ 9} 4. May 31, 2007 memorandum by the chief enforcement attorney 

to Katko’s employee file concerning his counseling by the board regarding his 

deposition conduct. The board redacted portions of the memorandum that it 

claimed to be excepted from disclosure under R.C. 4731.22(F)(5) and as 

confidential law-enforcement investigatory records, the release of which would 

create a high probability of disclosure of specific confidential investigatory 

techniques or procedures, under R.C. 149.43(A)(2). 

{¶ 10} 5. An e-mail thread beginning with an e-mail from Katko to the 

board’s chief enforcement officer on June 18, 2007, and continuing through a 

June 19, 2007 e-mail from the chief enforcement officer to the board’s assistant 

director. The board redacted the names of the physician based on R.C. 

4731.22(F)(5). It redacted other portions of the e-mails as investigative records 
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under that same statute and as confidential law-enforcement investigatory records, 

the release of which would create a high probability of disclosure of specific 

confidential investigatory techniques or procedures, under R.C. 149.43(A)(2). 

{¶ 11} 6. October 2, 2007 handwritten note regarding a discussion with 

Katko instructing him not to destroy prior versions of expert reports. The board 

redacted the name of the physician in a separate case before the board, pursuant to 

R.C. 4731.22(F)(5). 

{¶ 12} 7. An e-mail thread from October 5, 2007, regarding what Katko 

characterized as a reprimand by an assistant attorney general about his conduct. 

The board redacted the name of the subject of the investigation under R.C. 

4731.22(F)(5), the discussion of a particular investigatory matter between the 

board’s chief enforcement attorney and the board’s assistant director under the 

confidential-law-enforcement-investigatory-record exception in R.C. 

149.43(A)(2), and the message from an assistant attorney general to Katko based 

on the attorney-client privilege. 

{¶ 13} Dr. Mahajan objected to some of the board’s redactions, including 

some, but not all, of those previously specified. The board responded that after 

consultation with the attorney general’s office, it had “determined that the 

redactions cited in [the] letter dated May 1, 2009 are appropriate and that no 

additional documents will be provided.” In another letter dated September 29 

addressed to the attorney general’s office, Dr. Mahajan’s attorney urged the board 

to reconsider the redactions he had objected to in his earlier letter. The board, 

through the attorney general’s office, again refused. 

{¶ 14} On December 21, 2009, Dr. Mahajan filed this action for a writ of 

mandamus to compel the board to provide him with access to unredacted copies 

of the seven responsive records previously discussed. The board filed an answer, 

and following unsuccessful mediation, we granted an alternative writ. 
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5

{¶ 15} On April 5, 2010, the board’s hearing examiner issued a report and 

recommendation in the disciplinary case concerning Dr. Mahajan. In his report, 

the hearing examiner recommended that Dr. Mahajan’s certificate to practice 

medicine be indefinitely suspended. After hearing the doctor’s objections to the 

report and recommendation, the board rejected the hearing examiner’s 

recommendation and instead imposed a three-year probationary term. 

{¶ 16} The parties have filed evidence and briefs in this public-records 

mandamus case. This cause is before us for our consideration of the merits. 

II. Legal Analysis 

A. Brady v. Maryland and Constitutional Due Process 

{¶ 17} In his merit brief, Mahajan asserts that he is entitled to the 

unredacted portions of the requested records based on Brady v. Maryland (1963), 

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and constitutional due process. In 

Brady, the United States Supreme Court held that due process requires that the 

prosecution provide criminal defendants with any evidence that is favorable to 

them whenever that evidence is material to their guilt or punishment. Id. at 87. 

See also State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 

67. 

{¶ 18} We need not consider the merits of Mahajan’s constitutional claim 

because he did not raise it in his complaint. Nor did he amend his complaint to 

raise this claim. And the board did not expressly or impliedly consent to its 

litigation. See State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio 

St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 64; State ex rel. Miller v. Reed

(1999), 87 Ohio St.3d 159, 160, 718 N.E.2d 428 (“we need not address the merits 

of [appellant’s] constitutional claim because [he] did not raise this issue in his 

complaint or amend his complaint to include this claim, and appellees did not 

expressly or impliedly consent to litigation of this claim”). 
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{¶ 19} Moreover, assuming that the board consented to the litigation of 

this claim by briefing its merits, insofar as Mahajan claims entitlement to the 

redacted portions of the records or suggests some deprivation of his due-process 

rights by the medical-board proceeding against him, he has or had an adequate 

remedy in the ordinary course of law by administrative appeal. See State ex rel. 

Natl. Emps. Network Alliance, Inc. v. Ryan, 125 Ohio St.3d 11, 2010-Ohio-578, 

925 N.E.2d 947, ¶ 1 (“An administrative appeal generally constitutes an adequate 

remedy in the ordinary course of law that precludes a writ of mandamus”); State 

ex rel. Russo v. Deters (1997), 80 Ohio St.3d 152, 154, 684 N.E.2d 1237 (“to the 

extent [appellant] claims entitlement to the videotape under Crim.R. 16 or some 

provision other than R.C. 149.43, he had adequate remedies in the ordinary course 

of law at trial and on appeal”); R.C. 119.12. 

{¶ 20} Therefore, Mahajan is not entitled to the requested writ based on 

his constitutional claim, and his Public Records Act claim is dispositive of his 

right to the requested extraordinary relief in mandamus. 

B. Mandamus in Public-Records Cases 

{¶ 21} “Mandamus is the appropriate remedy to compel compliance with 

R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for 

Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 

2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). “We 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. 

{¶ 22} The State Medical Board of Ohio is a public office for purposes of 

R.C. 149.43. State ex rel. Wallace v. State Med. Bd. of Ohio (2000), 89 Ohio 

St.3d 431, 434, 732 N.E.2d 960; R.C. 149.011(A) (“ ‘Public office’ includes any 

state agency”) and (B) (“ ‘State agency’ includes every * * * board * * * 

established by the constitution and laws of this state for the exercise of any 
January Term, 2010 

7

function of state government”); R.C. 4731.01 (“The governor, with the advice and 

consent of the senate, shall appoint a state medical board consisting of twelve 

members, eight of whom shall be physicians and surgeons licensed to practice in 

Ohio”); R.C. 4731.22 (board has power to take disciplinary actions against 

persons certificated to practice medicine). 

{¶ 23} The requested records generally constitute records for purposes of 

R.C. 149.43 insofar as they “document the organization, functions, policies, 

decisions, procedures, operations, or other activities of the office.” R.C. 

149.011(G). 

{¶ 24} The board redacted portions of the requested records based on its 

belief that they are excepted from disclosure. “Exceptions to disclosure under the 

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.” 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. 

{¶ 25} With these general standards guiding our analysis, we next 

consider the seven individual redacted records and the board’s claimed 

exemptions. 

 1. May 17, 2007 E-Mail 

{¶ 26} In a May 17, 2007 e-mail from Katko to Rebecca Marshall, the 

board’s chief enforcement attorney, the board redacted the name of the doctor 

being investigated for violations of the Medical Practices Act, R.C. Chapter 4731, 

as well as quotations and page numbers from an investigative deposition of the 

doctor taken by Katko. 

{¶ 27} For the name of the doctor being investigated, the board bases its 

redactions on the uncharged-suspect exception for confidential law-enforcement 

investigatory records under R.C. 149.43(A)(1)(h) and (2)(a) as well as the board’s 

confidentiality provision for its investigatory information, R.C. 4731.22(F)(5). 
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{¶ 28} “The applicability of the R.C. 149.43(A)(2) confidential-lawenforcement-investigatory-record exemption requires, first, that the records 

pertain to a law enforcement matter of a criminal, quasi-criminal, civil, or 

administrative nature, and, second, that the release of the records would create a 

high probability of disclosure of any of the four types of information specified in 

R.C. 149.43(A)(2).” State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Mentor

(2000), 89 Ohio St.3d 440, 444, 732 N.E.2d 969. 

{¶ 29} With respect to the first criterion, records compiled by the board 

while investigating whether a physician violated R.C. Chapter 4731 meet the 

requirement that the records pertain to a law-enforcement matter of an 

administrative nature. See State ex rel. McGee v. Ohio State Bd. of Psychology

(1990), 49 Ohio St.3d 59, 60, 550 N.E.2d 945, overruled in part on other grounds, 

State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83 (“The 

reference in R.C. 149.43(A)(2) to four types of law enforcement matters — 

criminal, quasi-criminal, civil, and administrative — evidences a clear statutory 

intention to include investigative activities of state licensing boards”); State ex rel. 

Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 53, 552 N.E.2d 635. 

{¶ 30} Nevertheless, as Mahajan contends, “[u]nder the first requirement, 

records are not confidential law-enforcement records if they relate to employment 

or personnel matters rather than directly to the enforcement of law.” State ex rel. 

Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 

1208, ¶ 49. Katko’s May 17 explanatory e-mail to his supervising attorney 

pertains to Katko’s own professional conduct instead of directly to the 

enforcement of the provisions of R.C. Chapter 4731. The e-mail is not exempt 

from disclosure as a confidential law-enforcement investigatory record. 

{¶ 31} The board also did not establish the second requirement of the 

uncharged-suspect exception because the doctor who was identified in the e-mail 
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had been charged by the board with violating R.C. 4731.22 by the time that Dr. 

Mahajan made his public-records requests. 

{¶ 32} Therefore, the uncharged-suspect exemption from public records 

does not allow the redaction of the doctor’s name in the e-mail. 

{¶ 33} In the alternative, the board asserts that the doctor’s name is 

exempt from disclosure under R.C. 4731.22(F)(5). See R.C. 149.43(A)(1)(v) 

(excepting from the definition of a public record subject to disclosure under the 

Public Records Act “[r]ecords the release of which is prohibited by state or 

federal law”). Under R.C. 4731.22(F)(1), “[t]he board shall investigate evidence 

that appears to show that a person has violated any provision of this chapter or 

any rule adopted under it.” R.C. 4731.22(F)(5) specifies that “[i]nformation 

received by the board pursuant to an investigation is confidential and not subject 

to discovery in any civil action.” 

{¶ 34} Mahajan claims that the names of the doctors investigated by the 

medical board are not confidential because R.C. 4731.22(F)(5) is limited to 

information concerning patients and complainants and is thus inapplicable to 

other persons, including the doctors being investigated. See R.C. 4731.22(F)(5) 

(“The board shall conduct all investigations and proceedings in a manner that 

protects the confidentiality of patients and persons who file complaints with the 

board”). Mahajan also argues that because any confidential information is 

contained in a record relating to Katko’s job performance, R.C. 4731.22(F)(5) 

does not apply. 

{¶ 35} Mahajan’s claims lack merit. The plain language of R.C. 

4731.22(F)(5) protects “[i]nformation received by the board pursuant to an 

investigation” – it is not restricted to information relating to patients and 

complainants. This language provides a “clear legislative directive” that 

“information received by the board during an investigation is confidential.” State 

Med. Bd. of Ohio v. Murray (1993), 66 Ohio St.3d 527, 536, 613 N.E.2d 636. 
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Although the remainder of R.C. 4731.22(F)(5) emphasizes the importance of 

protecting the confidentiality of patients and complainants, we have expressly 

recognized that under the statute, “[s]everal groups have a privilege of 

confidentiality in the Medical Board’s investigative files,” including “patients, 

physicians who are under investigation, investigation witnesses, and any other 

persons whose confidentiality right is implicated by a Medical Board 

investigation.” (Emphasis added.) Wallace, 89 Ohio St.3d at 435, 732 N.E.2d 

960, citing In re Kralik (1995), 101 Ohio App.3d 232, 236, 655 N.E.2d 273. This 

conclusion is supported by the breadth of the preliminary sentence in R.C. 

4731.22(F)(5). Therefore, R.C. 4731.22(F)(5) generally protects the names of 

physicians under investigation. 

{¶ 36} Nor does R.C. 4731.22(F)(5) specify that information is 

confidential only if it is contained in certain types of board records, i.e., in 

investigative as opposed to personnel records. The statutory language instead 

broadly protects any information received during the investigation regardless of 

the type of board record in which it is contained. 

{¶ 37} Nevertheless, the confidentiality provision in R.C. 4731.22(F)(5) 

may be waived by the holder of the privilege, which in this case is the doctor 

being investigated. Here, the doctor being investigated is the same doctor 

requesting an unredacted copy of the May 17, 2007 e-mail – Dr. Mahajan – so the 

R.C. 4731.22(F)(5) privilege of confidentiality is waived. Cf. Wallace, 89 Ohio 

St.3d at 435-436, 732 N.E.2d 960. Therefore, the name of the doctor being 

investigated should have been disclosed to Mahajan in response to his records 

requests. 

{¶ 38} In general, R.C. 4731.22(F)(5) supports the redactions of the 

quotes from the investigative deposition of Dr. Mahajan because the statements 

are “[i]nformation received by the board pursuant to an investigation.” But again, 

the redacted information does not implicate the statutory privilege of 
January Term, 2010 

11

confidentiality of any of the persons on whom it is conferred, and Mahajan has 

waived his privilege. Therefore, the quotes from Mahajan’s counsel during the 

deposition, which Katko claimed supported his behavior during the deposition, 

are also not exempt from disclosure under R.C. 4731.22(F)(5). 

{¶ 39} Finally, the redacted page numbers for the deposition quotations 

are not supported by any exemption from disclosure. 

{¶ 40} Therefore, Mahajan is entitled to an unredacted copy of the May 

17, 2007 e-mail. 

 2. May 18, 2007 Notes of Telephone Conversation 

{¶ 41} The board redacted one inquiry concerning Katko’s ability to 

perform his job-related functions from the May 18, 2007 notes of a telephone 

conversation by a board employee with the court reporter who had transcribed Dr. 

Mahajan’s deposition. The board asserts that this redaction is justified by R.C. 

2305.28 as referenced in R.C. 149.43, as well as Section 12112(d)(3)(B), Title 42, 

U.S.Code. See R.C. 149.43(A)(1)(v) (records are exempt from disclosure if their 

release is prohibited by state or federal law). 

{¶ 42} Because the board’s reliance on the Americans with Disabilities 

Act (“ADA”), Section 12101 et seq., Title 42, U.S.Code, is dispositive, we do not 

address the board’s reliance on R.C. 2305.28 and 149.43. The ADA was enacted 

in 1990 “to provide a clear and comprehensive national mandate for the 

elimination of discrimination against individuals with disabilities.” Section 

12101(b), Title 42, U.S. Code. Medical examinations and inquiries of current 

employees are prohibited if they seek to determine “whether such employee is an 

individual with a disability or as to the nature or severity of the disability, unless 

such examination or inquiry is shown to be job-related and consistent with 

business necessity.” Section 12112(d)(4)(A), Title 42, U.S. Code. 

{¶ 43} Under Section 12112(d)(4)(B), Title 42, U.S.Code, however, a 

“covered entity may conduct voluntary medical examinations, including voluntary 
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medical histories, which are part of an employee health program available to 

employees at that work site,” and a “covered entity may make inquiries into the 

ability of an employee to perform job-related functions.” The information 

obtained by the covered entity must be treated as a confidential medical record. 

Section 12112(d)(3)(B) and (4)(C), Title 42, U.S.Code; see also Section 

1630.14(c), Title 29, C.F.R.; Yoder v. Ingersoll-Rand Co. (C.A.6, 1998), 172 F.3d 

51 (table), 1998 WL 939885, * 1; Loschen v. Trinity United Methodist Church of 

Lincoln (Sept. 9, 2009), D.Neb. No. 4:08CV3143, 2009 WL 2902956, * 3. 

{¶ 44} Because the board employee’s questioning of the court reporter 

constituted an inquiry into whether Katko was able to perform his job-related 

functions, it was properly redacted by the board. The pertinent ADA provision 

does not limit the confidential nature of these inquiries to questions directed to 

employees or medical personnel. See Section 12112(d)(4)(B), Title 42, 

U.S.Code. 

{¶ 45} Therefore, Mahajan is not entitled to an unredacted copy of the 

May 18, 2007 notes of the telephone conversation with the court reporter. 

 3. May 22, 2007 Notes of Telephone Conversation 

{¶ 46} For the board’s notes of a May 22, 2007 telephone conversation 

with Mahajan’s counsel, for the same reasons previously discussed, the redaction 

of the doctor’s name is not justified by either the uncharged-suspect exemption of 

R.C. 149.43(A)(1)(h) and (A)(2)(a) or the board’s investigative-confidentiality 

provision, R.C. 4731.22(F)(5). Mahajan waived the privilege accorded his name 

in R.C. 4731.22(F)(5) by requesting these records. Similarly, he waived that 

same privilege of confidentiality for the redacted portion of the note indicating 

that Katko had previously deposed Mahajan without an attorney present. 

{¶ 47} The redaction of the board employee’s inquiry of Mahajan’s 

counsel, based on his observations of Katko’s behavior during his deposition of 
January Term, 2010 

13

the doctor, regarding Katko’s ability to perform job-related duties, however, was 

proper under Section 12112(d)(3)(B) and (4)(B) and (C), Title 42, U.S. Code. 

{¶ 48} The remaining redactions from the May 22, 2007 notes were 

appropriate under R.C. 4731.22(F)(5) because they referred to information 

obtained in conjunction with the board’s investigation of Mahajan, including 

substantive allegations concerning alleged misconduct and the potential 

settlement of the case. These redacted materials invoke confidentiality concerns 

that go beyond those of the doctor and the board, e.g., the concerns of witnesses 

testifying against Dr. Mahajan, so the R.C. 4731.22(F)(5) confidentiality 

provision is not waived. See Wallace, 89 Ohio St.3d at 435-436, 732 N.E.2d 960. 

{¶ 49} Therefore, in the May 22, 2007 note, Mahajan is entitled to 

disclosure of the doctor’s name and the fact that the doctor had previously been 

deposed by Katko. 

4. May 31, 2007 Memorandum 

{¶ 50} In the May 31, 2007 memorandum by Rebecca Marshall, the 

board’s chief enforcement attorney, to her employee file for Katko, entitled 

“Counseling regarding deposition conduct,” the board improperly redacted Dr. 

Mahajan’s name. The uncharged-suspect exemption does not justify this 

redaction, and the confidentiality that would otherwise be accorded to it by R.C. 

4731.22(F)(5) was waived by Mahajan. 

{¶ 51} The remaining redacted information, however, is protected by the 

confidential-law-enforcement-investigatory-record exemption for specific 

investigatory work product. R.C. 149.43(A)(1)(h) and (2)(c). Although the 

memorandum is contained in what appears to be the chief enforcement attorney’s 

general personnel file for Katko, the redacted information directly pertains to the 

board’s enforcement of R.C. Chapter 4731 in its case against Dr. Mahajan rather 

than to the ancillary employment issues concerning Katko. These portions of the 

memorandum thus differ from the May 17, 2007 e-mail from Katko to Marshall, 
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which did not pertain to the board’s enforcement of an administrative matter. 

They are not records made in the routine course of public employment before the 

board’s investigation of Dr. Mahajan commenced. Cf. Morgan, 112 Ohio St.3d 

33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 51. 

{¶ 52} The release of these portions of the memorandum would result in a 

high probability of disclosing specific investigatory work product. See State ex 

rel. Steckman v. Jackson, 70 Ohio St.3d at 434, 639 N.E.2d 83, quoting Black’s 

Law Dictionary (6th Ed.Rev.1990) 1660 (work product includes notes, working 

papers, memoranda, or similar materials prepared by law-enforcement officials in 

anticipation of litigation). The redacted portions of the memorandum of the 

board’s chief enforcement attorney reflected her and Katko’s work product, i.e., 

their assessment of the evidence and legal strategy for the board’s investigation of 

Dr. Mahajan, which ultimately led to the board’s disciplinary action against him. 

We have previously observed that “[e]xempt work product is information 

assembled by law enforcement officials in connection with a pending or highly 

probable criminal proceeding.” (Emphasis added and omitted.) Ohio 

Patrolmen’s Benevolent Assn., 89 Ohio St.3d at 445, 732 N.E.2d 969. See also 

State ex rel. Gannett Satellite Info. Network, Inc. v. Petro (1997), 80 Ohio St.3d 

261, 266-267, 685 N.E.2d 1223. But those were not cases in which the claimed 

work product pertained to a law-enforcement matter of an administrative nature, 

i.e., the board’s investigation of a doctor’s violation of the provisions of R.C. 

Chapter 4731. A contrary construction of the definition of “confidential law 

enforcement investigatory record” in R.C. 149.43(A)(2) would delete lawenforcement matters of a “quasi-criminal, civil, or administrative nature” from its 

scope, a result that is not intended by the inclusion of this language in the 

exemption. 

{¶ 53} Therefore, aside from the redaction of Dr. Mahajan’s name, the 

redactions in the memorandum by the board were appropriate. 
January Term, 2010 

15

 5. June 2007 E-mail 

{¶ 54} In related e-mails in June 2007, Marshall notified Katko that Dr. 

Mahajan’s attorney had sent a new letter to the board complaining about Katko’s 

conduct during a deposition of a witness in the board’s investigation. The board 

improperly redacted Mahajan’s name from the e-mails because he had waived any 

right to confidentiality under R.C. 4731.22(F)(5) by requesting the records. 

{¶ 55} Nevertheless, the board’s other redactions to the June 2007 e-mails 

were appropriate. The witness’s name was properly redacted under R.C. 

4731.22(F)(5) as information received by the board during its investigation, and 

the witness did not waive the statutory confidentiality. The remaining redacted 

material is composed of information received during the investigation of Mahajan 

intertwined with the board’s work product, e.g., its assessment of the evidence 

and its investigative strategy. 

 6. October 2, 2007 Note 

{¶ 56} In an October 2, 2007 handwritten note in conjunction with a 

different investigative case involving another doctor, a board employee stated that 

Katko had been instructed not to destroy preliminary reports submitted by experts 

prior to a final version. The board redacted the name of the physician in the 

investigative case. That redaction was appropriate because the name of the 

physician is confidential under R.C. 4731.22(F)(5), and there is no evidence that 

the doctor in that investigation had waived the privilege. 

 7. October 5, 2007 E-Mail 

{¶ 57} In e-mails sent on October 5, 2010, the redacted portion also 

consists of information received by the board in a different investigation 

concerning another doctor and correspondence from an assistant attorney general. 

The information is exempt from disclosure as confidential under R.C. 

4731.22(F)(5), as investigatory work product under R.C. 149.43(A)(1)(h) and 

(2)(c), and as material protected by the attorney-client privilege. See State ex rel. 
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Besser v. Ohio State Univ. (2000), 87 Ohio St.3d 535, 542, 721 N.E.2d 1044 

(“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 Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 

1221 (investigation conducted by attorney that was incident to or related to legal 

advice to government client was covered by attorney-client privilege). 

C. Mandamus 

{¶ 58} Based on the foregoing, Mahajan has established that he is entitled 

to a writ of mandamus to compel the disclosure of an unredacted copy of the May 

17, 2007 e-mail, the portions of the May 22, 2007 notes that refer to Mahajan’s 

name and the fact that he had previously been deposed by Katko, and the parts of 

the May 31, 2007 memorandum and June 2007 e-mails that note Mahajan’s name. 

In all other respects, however, the board’s redactions were appropriate based on 

applicable exemptions. 

D. Statutory Damages and Attorney Fees 

{¶ 59} Mahajan is not entitled to an award of statutory damages because 

he did not transmit any of his written records requests “by hand delivery or 

certified mail,” as required by R.C. 149.43(C)(1). Toledo Blade, 121 Ohio St.3d 

537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 35; State ex rel. Miller v. Brady, 123 

Ohio St.3d 255, 2009-Ohio-4942, 915 N.E.2d 1183, ¶ 17. Mahajan’s claim that 

this requirement is satisfied by the court’s service of his mandamus complaint on 

the board by certified mail contravenes the plain language of R.C. 149.43(C)(1) 

and would authorize simultaneously filing a records request and a complaint for a 

writ of mandamus, which is impermissible. See State ex rel. Lanham v. Smith, 

112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530, ¶ 14 (prior records request 

is a prerequisite for a public-records mandamus action). 
January Term, 2010 

17

{¶ 60} Mahajan is also not entitled to an award of attorney fees because, 

on the whole, the board acted appropriately in responding to his public-records 

request. See State ex rel. Citizens for Open, Responsive & Accountable Govt. v. 

Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 43 (relator is 

not entitled to an award of attorney fees in public-records mandamus case because 

its claims, “[f]or the most part,” lacked merit); State ex rel. Nix v. Cleveland

(1998), 83 Ohio St.3d 379, 385, 700 N.E.2d 12 (relators in public-records 

mandamus case were not entitled to an award of attorney fees “because their 

records requests were largely meritless”). And any minimal benefit conferred by 

the writ granted here is beneficial mainly to Mahajan rather than to the public in 

general. See Morgan, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 

58 (attorney fees denied to relator in public-records mandamus case when relator 

failed to establish a sufficient public benefit); State ex rel. Cranford v. Cleveland, 

103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 1218, ¶ 26 (same). The limited 

information that was improperly redacted by the board does not shed any material 

light on the purported misconduct of the board enforcement attorney who deposed 

Dr. Mahajan. 

{¶ 61} Therefore, we deny Mahajan’s request for statutory damages and 

attorney fees. 

E. Additional Motions 

{¶ 62} After the completion of briefing, in response to a separate publicrecords request by Dr. Mahajan’s counsel, the state medical board provided a 

redacted copy of a letter from a licensure applicant to the board’s executive 

director complaining in part about Katko’s conduct during an investigative 

deposition of the applicant. The board noted in its response that it appeared that 

this letter “would have been responsive to [counsel’s] April 9, 2009 request. 

However, the letter was not found in the search for public records responsive to 
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[the] request. If it had been found at that time, it would have been produced with 

redactions.” 

{¶ 63} Dr. Mahajan seeks leave to file the board’s response as 

supplemental evidence. We grant the motion because the evidence pertains to the 

public-records request that is the basis for this mandamus case. “ ‘[I]n mandamus 

actions, a court is not limited to considering the facts and conditions at the time a 

proceeding is instituted but should consider the facts and circumstances at the 

time it determines whether to issue the peremptory writ.’ ” State ex rel. Brown v. 

Lemmerman, 124 Ohio St.3d 296, 2010-Ohio-137, 921 N.E.2d 1049, ¶ 12, 

quoting State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations 

Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 54. 

{¶ 64} Nevertheless, in considering this supplemental evidence, Dr. 

Mahajan does not challenge the redacted portions of the letter. Therefore, by 

providing the letter to him, any additional mandamus claim against the board was 

rendered moot. See State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 

120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 43 (public-records claim 

rendered moot when records were provided). And although providing this 

requested record would not render requests for attorney fees and statutory 

damages moot, see, e.g., State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio 

St.3d 17, 2009-Ohio-5947, 918 N.E.2d 515, ¶ 10, Dr. Mahajan is still not entitled 

to fees or damages because he did not comply with R.C. 149.43(C)(1), and his 

public-records claims were mostly without merit. Therefore, Dr. Mahajan’s 

supplemental evidence does not justify a different result. We deny the board’s 

motion for leave to file supplemental evidence instanter and motion for leave to 

submit evidence under seal and Dr. Mahajan’s request for leave to depose the 

board’s general counsel, which are rendered moot by our disposition. 
January Term, 2010 

19

{¶ 65} We also deny Mahajan’s request for oral argument because the 

parties’ briefs are sufficient to resolve this public-records mandamus case. Toledo 

Blade, 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 35, fn. 2. 

III. Conclusion 

{¶ 66} “The Public Records Act serves a laudable purpose by ensuring 

that governmental functions are not conducted behind a shroud of secrecy. 

However, even in a society where an open government is considered essential to 

maintaining a properly functioning democracy, not every iota of information is 

subject to public scrutiny. Certain safeguards are necessary.” Wallace, 89 Ohio 

St.3d at 438, 732 N.E.2d 960. The General Assembly has provided these 

safeguards by balancing competing concerns and providing for certain 

exemptions from the release of public records pursuant to R.C. 149.43. See State 

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

1116, ¶ 36. The state medical board has met its burden for establishing the 

applicability of several of these exemptions. The board acted diligently and 

appropriately in the vast majority of its redactions to the requested records. 

{¶ 67} Other redactions were not covered by an exemption. Therefore, 

we grant a writ of mandamus to compel respondent to provide access to an 

unredacted copy of the May 17, 2007 e-mail, the portions of the May 22, 2007 

notes that refer to Mahajan’s name and the fact that he had been previously 

deposed by Katko, and the parts of the May 31, 2007 memorandum and June 

2007 e-mails that note Mahajan’s name. In all other respects, we deny the writ. 

We also deny relator’s request for statutory damages, attorney fees, and oral 

argument. 

Writ granted in part 

and denied in part. 

 BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur. 
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__________________ 

 Subashi & Wildermuth, Nicholas E. Subashi, and Halli J. Brownfield; and 

the Chandra Law Firm, L.L.C., and Subodh Chandra, for relator. 

 Richard Cordray, Attorney General, and Katherine J. Bockbrader, 

Assistant Attorney General, for respondent. 

______________________