[Cite as Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs. , 2020-Ohio-5281.]

{¶1} Respondent Hamilton County Board of Commissioners (Board) objec ts to a special master’s report and recommendation (R&R) issued on Augu st 25, 2020. I. Background {¶2} On July 11, 2019, pursuant to R.C. 2743.75(D), requester The Ci ncinnati Enquirer, A Division of Gannett GP Media, Inc. (Enquirer) broug ht a civil lawsuit against the Board wherein it alleged a denial of access to public recor ds. The court appointed a special master in the cause. The court, through the special ma ster, referred the case to mediation. After mediation failed to successfully resolve all disputed issues between the parties, the Board responded to the complaint and moved to dismiss. On August 25, 2020, the special master issued a R&R wherein the sp ecial master

recommended: Based on the pleadings, affidavits, and documents submitted in this action, I recommend the court order respondent to provide reque ster with copies of all withheld records other than as noted in the table of permitted exceptions. I further recommend the court find that respondent did not provide copies or any other response within a reasonable period of time in violation of R.C. 149.43(B)(1). I recommend the court order tha t requester is entitled to recover from respondent the amount of the filing fee of THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC.

Requester

v.

HAMILTON COUNTY BOARD OF COMMISSIONERS

Respondent Case No. 2019-00789PQ

Judge Patrick M. McGrath

DECISION & ENTRYCase No. 2019-00789PQ -2- DECISION & ENTRY

twenty-five dollars and any other costs associated with the act ion that it has incurred. I recommend costs be assessed to respondent. (R&R, 51.) {¶3} On September 22, 2020, after the court granted the Board’s requ est for an extension of time to file objections, the Board filed written o bjections to the R&R. The Board’s counsel served a copy of the Board’s objections on the Enquirer’s counsel by means of certified mail and email, according to a certificate o f service accompanying the objections. The Board concurrently moved for leave to exceed p age limits contained in L.C.C.R. 4(E) for supporting, opposing, or memorandum briefs. {¶4} On September 30, 2020, the Enquirer filed a written response to the Board’s objections. The Enquirer’s counsel served a copy of the Enquir er’s response on the Board’s counsel by means of the court’s Odyssey eFileOH system and email, according to a certificate of service accompanying the response. II. Law and Analysis {¶5} R.C. 2743.75(F)(2) governs objections to a special master’s R&R . Pursuant to R.C. 2743.75(F)(2), either party “may object to the report a nd recommendation within seven business days after receiving the report and recommendati on by filing a written objection with the clerk and sending a copy to the other party by certified mail, return receipt requested. * * * If either party timely objects, the ot her party may file with the clerk a response within seven business days after receiving the objection and send a copy of the response to the objecting party by certified mail, return receipt requested. The court, within seven business days after the response to the objection is filed, shall issue a final order that adopts, modifies, or rejects the repor t and recommendation.” {¶6} The Board has timely objected to the R&R and has complied with R.C. 2743.75(F)(2) requirement to serve a copy of its written object ions by certified mail. {¶7} The Enquirer has timely responded to the Board’s objections; ho wever, the Enquirer has failed to comply with R.C. 2743.75(F)(2) requireme nt to serve a copy of itsCase No. 2019-00789PQ -3- DECISION & ENTRY

response by certified mail, return receipt requested. The Enqu irer’s response therefore is procedurally deficient under R.C. 2743.75(F)(2). The court will nonetheless consider the Enquirer’s response in the interest of justice. {¶8} Pursuant to R.C. 2743.75(F)(2), any objection to a report and recommendation “shall be specific and state with particularity all grounds for the objection.” The Board presents the following objections: A. The R&R should not be adopted because attorney-client privil eged communications may be entirely withheld.

B. The R&R should not be adopted as the Board’s attorneys were acting as legal advisors in the negotia tions, and the attorney-client privilege applies to any legal services not j ust the provision of “legal advice.”

C. The R&R should not be adopted because inclusion of the Board ’s own consultant does not waive t he attorney-client privilege.

D. The R&R should not be adopted because the Board’s counsel’s work product, drafts and trade secret were appropriately withheld at the time the request was made.

E. The R&R should not be adopted as the request was ambiguous a nd it is unclear whether several of the emails are in scope of the re quest.

F. The R&R should not be adopted as the Board acted in a reason able manner and should not be liable for costs.

{¶9} Upon independent review, the court finds that the special maste r has properly applied the relevant law to the facts of this case. T he court determines that the Board’s objections should be overruled.

III. Conclusion {¶10} The court GRANTS the Board’s request for leave to exceed page l imits set forth in L.C.C.R. 4(E). The court OVERRULES the Board’s object ions. The court adopts the R&R. The court ORDERS the Board to forthwith provid e the Enquirer with copies of all withheld records other than as noted in the table of permitted exceptionsCase No. 2019-00789PQ -4- DECISION & ENTRY

that is set forth in the R&R. The Enquirer is entitled to reco ver from the Board the amount of the filing fee of twenty-five dollars and any other c osts associated with the action that are incurred by the Enquirer, but the Enquirer is n ot entitled to recover attorney fees. Judgment is rendered in favor of the Enquirer. Court costs are assessed against the Board. The clerk shall serve upon all parties noti ce of this judgment and its date of entry upon the journal.

PATRICK M. MCGRATH Jud g e

Filed October 6, 2020 Sent to S.C. Reporter 11/13/20