[Cite as Foulk v. Upper Arlington, 2017-Ohio-5767.]

{¶1} This case arises under R.C. 2743.75, on requester Robert Foulk’s claim that 

respondent City of Upper Arlington denied him access to public records in violation of 

division (B) of R.C. 149.43. The City Council withheld fourteen minutes from the 

requested audio recording of its January 10, 2017 public meeting, held pursuant to the 

Open Meetings Act, R.C. 121.22. The City asserted that discussion with the City 

Attorney captured in the withheld portions of the recording was subject to the 

common-law attorney-client privilege, because no member of the public was in physical 

attendance at the meeting. On May 25, 2017, Special Master Jeffery Clark issued a 

report finding that the discussion with the City Attorney took place during an open 

session of a public meeting, and, further, was conducted in the presence of an 

unnecessary third party. Special Master Clark concluded that the City failed to meet its 

burden of showing that communication with its counsel had been made “in confidence,” 

and therefore, the attorney-client privilege did not apply. 

{¶2} Special Master Clark found that affidavit testimony submitted by the City 

demonstrated that, subsequent to the filing of the complaint, the City produced the 

withheld fourteen minutes of audio recording to Foulk, rendering his claim for production 

MOOT. However, Special Master Clark found that the 88-day delay between the initial 

production of the redacted recording of the meeting, and the final production to Foulk of 

the remainder of the recording, violated the "reasonable period of time" for production of 

ROBERT C. FOULK 

 Requester 

 v. 

CITY OF UPPER ARLINGTON, OHIO 

 Respondent 

Case No. 2017-00132-PQ 

Judge Patrick M. McGrath 

ENTRY ADOPTING 

RECOMMENDATION OF 

SPECIAL MASTER 
Case No. 2017-00132-PQ -2- ENTRY 

all requested records. Special Master Clark recommends judgment for requester on the 

claim of violation of timely production required by R.C. 149.43(B)(1), and that requester 

be entitled to recover from respondent the amount of the filing fee of twenty-five dollars 

and any other costs associated with the action that he incurred. 

{¶3} Special Master Clark found that Foulk’s separate allegation that the City had 

failed to create complete minutes of the City Council meeting of January 10, 2017 

should be DISMISSED for lack of jurisdiction of this court over such claims. 

{¶4} R.C. 2743.75(F)(2) states, in part: “Either party may object to the report and 

recommendation within seven business days after receiving the report and 

recommendation by filing a written objection with the clerk * * *.” No objections have 

been filed. Upon review, the court determines that there is no error of law or other 

defect evident on the face of Special Master Clark's decision. The court therefore 

adopts Special Master Clark's report and recommendation of May 25, 2017 as its own, 

including the findings of fact and conclusions of law contained therein. 

{¶5} Accordingly, judgment is rendered in favor of Foulk, and his claim is 

GRANTED, in part, such that he be awarded the twenty-five dollar filing fee and any 

costs associated with this action that he incurred, pursuant to R.C. 2743.75(F)(3)(b). 

Court costs are assessed against respondent. The clerk shall serve upon all parties 

notice of this judgment and its date of entry upon the journal. 

 PATRICK M. McGRATH 

 Judge 

cc: 

James C. Becker 

4380 Braunton Road 

Columbus, Ohio 43220-4304 

Mark R. Weaver 

Molly R. Gwin 

Two Miranova Place, Suite 700 

Columbus, Ohio 43215-5098 

Filed June 19, 2017 

Sent to S.C. Reporter 7/7/17