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

T HE S TATE EX REL . M AHAJAN v. S TATE M EDICAL B OARD OF O HIO . [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.)

I N M ANDAMUS

.

__________________ 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 st atutory 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 investigati on of Dr. Mahajan, David P. Katko, anS UPREME C OURT OF O HIO

2 enforcement attorney employed by the board, deposed him. On that same day, Nicholas E. Subashi, Dr. Ma hajan’s counsel, mailed a lette r to the board’s director complaining about Katko’s deposition conduc t, which Subashi de scribed as “rude, unprofessional, threatening, and intimida ting.” Rebecca Marshall, the board’s chief enforcement attorney, responded that she and the director had met with Katko “to counsel him about the unprofe ssional 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 hear ing, Dr. Mahajan requested that the board provide him with copi es 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 fro m Dr. Mahajan’s counsel. {¶ 4} Because Dr. Mahajan’s attorney was surprised that his correspondence with the board was not incl uded in the copy of Katko’s personnel file provided by the boa rd, 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 reque st was overbroad and to give him an opportunity to narrow it. Dr. Mahajan’s counsel then amended his request to askfor only those records received or created by board members or managementlevel personnel rela ted to Katko’s May 4, 2007 de position of Dr. Mahajan and any similar incidents involving Katko. {¶ 5} On May 1, 2009, the board responde d to Dr. Mahajan’s revised records request by providing him with additional records. The board redacted portions of the requested records and pr ovided the following detailed reasons for not disclosing the redacted material:January Term, 2010

3 {¶ 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 tele phone conversation with Dr. Mahajan’s attorney, Subashi. The board redacted the name of the physician, the discussion of the investigation, and a ques tion 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 hi s 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 enforcem ent officer to the board’s assistant

director. The board redacted the na mes of the physician based on R.C. 4731.22(F)(5). It redacted other portions of the e-mails as investigative recordsS UPREME C OURT OF O HIO

4 under that same statute and as confidentia l law-enforcement investigatory records, the release of which would create a high probability of disclosure of specific confidential investigator y 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 se parate 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 assist ant 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 particul ar 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 assi stant 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 object ed to in his earlier letter. The board, through the attorney general’s office, again refused. {¶ 14} On December 21, 2009, Dr. Mahajan f iled 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.January Term, 2010

5 {¶ 15} On April 5, 2010, the board’s hearing examiner issued a report and recommendation in the disciplinary case c oncerning 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”).S UPREME C OURT OF O HIO

6 {¶ 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 sugge sts 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 app eal generally constitu tes an adequate remedy in the ordinary course of la w 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 adequa te remedies in th e 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 anyJanuary Term, 2010

7 function of state government”); R.C. 4731.01 (“The governor, with the advice and consent of the senate, sha ll appoint a state medical boa rd consisting of twelve members, eight of whom shall be physicia ns 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 th e 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 strict ly 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, paragr aph two of the syllabus. {¶ 25} With these general standards gu iding our analysis, we next

consider the seven individual redact ed 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 th e 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 ex ception 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 inves tigatory information, R.C. 4731.22(F)(5).S UPREME C OURT OF O HIO

8 {¶ 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 th e 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 physicia n 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. Oh io 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 Maha jan contends, “[u]nder the first requirement, records are not confidential law-enforcement records if they relate to employment or personnel matters rather than dir ectly 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-mailJanuary Term, 2010

9 had been charged by the board with vi olating R.C. 4731.22 by the time that Dr. Mahajan made his pub lic-records requests. {¶ 32} Therefore, the uncharged-suspect exemption from public records

does not allow the redaction of th e 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 vi olated 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 inve stigation is confiden tial 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 be ing investigated. See R.C. 4731.22(F)(5) (“The board shall conduct all investiga tions 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.S UPREME C OURT OF O HIO

10 Although the remainder of R.C. 4731.22(F)(5) emphasizes the importance of protecting the confidentialit y of patients and complain ants, 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 witne sses, and any other persons whose confidentiality right is implicated by a Medical Board investigation.” (E mphasis 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 cer tain types of board records, i.e., in investigative as opposed to personnel reco rds. 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 confidentialit y 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 Ma y 17, 2007 e-mail – Dr. Mahajan – so the R.C. 4731.22(F)(5) privilege of c onfidentiality 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 purs uant to an investigation.” But again, the redacted information does not imp licate the statutory privilege ofJanuary Term, 2010

11 confidentiality of any of the persons on whom it is conferre d, and Mahajan has waived his privilege. Therefore, the quotes from Mahajan’s counsel during the deposition, which Katko cla imed supported his behavior during the deposition, are also not exempt from disc losure 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 fro m the May 18, 2007 notes of a telephone conversation by a board employee with th e 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) (record s 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 comp rehensive national mandate for the elimination of discrimination against individuals with disabilities.” Section 12101(b), Title 42, U.S. Code. Medical ex aminations 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 a nd 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 medi cal examinations, including voluntaryS UPREME C OURT OF O HIO

12 medical histories, which are part of an employee health program available to employees at that work site,” and a “c overed 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), T itle 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 Kat ko was able to perform his job-related functions, it was properly redacted by the board. The pertinent ADA provision

does not limit the confidential na ture 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 conve rsation 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 reas ons 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 investiga tive-confidentiality provision, R.C. 4731.22(F)(5). Mahajan waiv ed 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 Ma hajan without an attorney present. {¶ 47} The redaction of the board empl oyee’s inquiry of Mahajan’s counsel, based on his observations of Ka tko’s behavior during his deposition ofJanuary 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 conf identiality 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 f act 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 unc harged-suspect exemption does not justify this redaction, and the confidentia lity that would otherwise be accorded to it by R.C. 4731.22(F)(5) was waived by Mahajan. {¶ 51} The remaining redacted informati on, 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,S UPREME C OURT OF O HIO

14 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 specifi c 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 redact ed 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 st rategy 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 In fo. 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-enforcem ent matter of an administrative nature, i.e., the board’s investigation of a docto r’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 re dactions to the June 2007 e-mails were appropriate. The witness’s name was prope rly 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 recei ved during the investig ation of Mahajan intertwined with the board’s work produ ct, e.g., its assessment of the evidence and its investigative strategy. 6. October 2, 2007 Note {¶ 56} In an October 2, 2007 handwritte n note in conjunction with a different investigative case involving anot her doctor, a board em ployee 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 disc losure 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.S UPREME C OURT OF O HIO

16 Besser v. Ohio State Univ. (2000), 87 Ohio St.3d 535, 542, 721 N.E.2d 1044 (“The attorney-client privilege, which c overs 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 cove red 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 boar d’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 pub lic-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 f ees 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 boa rd enforcement attorney who deposed Dr. Mahajan. {¶ 61} Therefore, we deny Mahajan’s re quest 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 licensu re 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 responsiv e to [counsel’s] April 9, 2009 request. However, the letter was not found in the s earch for public records responsive toS UPREME C OURT OF O HIO

18 [the] request. If it had been found at th at 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 moti on 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 consider ing the facts and conditions at the time a proceeding is instituted but should consid er 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. Ass n., 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 challe nge 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 provi ded). And although providing this requested record would not render reques ts 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 di fferent result. We deny the board’s motion for leave to file supplemental ev idence instanter and motion for leave to submit evidence under seal and Dr. Mahaja n’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 c onducted 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 Mahaja n’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 stat utory damages, attorney fees, and oral argument. Writ granted in part and denied in part.

B ROWN , C.J., and P FEIFER , L UNDBERG S TRATTON , O’C ONNOR , O’D ONNELL , L ANZINGER , and C UPP , JJ., concur.S UPREME C OURT OF O HIO

20 __________________ 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.

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