State ex rel. Hogan Lovells U.S., L.L.P. v. Ohio Dep't of Rehab. & Corr.

179 N.E.3d 1150

The STATE EX REL. HOGAN LOVELLS U.S., L.L.P., et al.

v.OHIO DEPARTMENT OF REHABILITATION AND CORRECTION.

No. 2019-1511

Supreme Court of Ohio.

Submitted January 26, 2021

Decided May 26, 2021.

Graydon, Head & Ritchey, L.L.P., John C. Greiner, Cincinnati, and Darren W. Ford, for relators.

Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, Columbus, and Aaron M. Glasgow, for respondent.

Per Curiam Opinion announcing the judgment of the court.

{¶ 1} This is the second public-records action filed in this court by relators, Hogan Lovells U.S., L.L.P., and Elizabeth Och (collectively, "Hogan Lovells"), against respondent, the Ohio Department of Rehabilitation and Correction ("DRC"). In the previous case, we granted Hogan Lovells's request for a writ of mandamus in part and ordered DRC to provide certain records, with redactions, relating to DRC's supply of drugs for its use in lethal injections. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr. , 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 2, 48. This case involves another request for DRC's records relating to lethal injections.

{¶ 2} We deny the writ in this case. But because DRC failed to timely respond to Hogan Lovells's request, we grant Hogan Lovells's request for an award of statutory damages in the amount of $500. We deny Hogan Lovells's request for an award of court costs. We defer our decision on Hogan Lovells's request for attorney fees pending Hogan Lovells's submission of an itemized application.

I. BACKGROUND

{¶ 3} In March 2016, Hogan Lovells asked DRC to produce records relating to drugs intended to be used or considered for use in lethal injections. Id. at ¶ 2. After nearly nine months had passed without DRC providing a substantive response, Hogan Lovells filed a mandamus action in this court. Id. at ¶ 3-4. DRC eventually gave Hogan Lovells some responsive records, but it withheld or redacted other records based on a claimed exemption under R.C. 2949.221(B)(1), which prohibits the disclosure of records that identify or could reasonably lead to the identification of certain persons participating in activities relating to lethal-injection drugs. Id. at ¶ 4-5.

{¶ 4} We granted Hogan Lovells's requested writ in part, ordering DRC to produce redacted copies of four pieces of correspondence that DRC previously had withheld in their entirety. Hogan Lovells , 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, at ¶ 24. But we denied the writ concerning other records, either because protected information was "inextricably intertwined," id. at ¶ 24, with the remainder of the information in the record or because DRC had created or received the records after Hogan Lovells had made its request. Id. at ¶ 24, 30, 47. We determined that Hogan Lovells was entitled to an award of court costs and attorney fees. Id. at ¶ 46. We did not award statutory damages, however, because Hogan Lovells had not transmitted its request in a qualifying manner under the applicable version of R.C. 149.43(C)(2). Id. at ¶ 35.

{¶ 5} In July 2019, Hogan Lovells made another request for records relating to DRC's plans for carrying out executions by lethal injection. Hogan Lovells sent the request by e-mail to DRC's general public-information address, with "Ohio public records request" written in the subject line. This e-mail request was similar to the one Hogan Lovells had made in 2016 and sought 16 specific records that postdated the first request. Hogan Lovells brought this action in November 2019, after DRC had failed to acknowledge or respond to the request for more than three months. In addition to the records, Hogan Lovells seeks awards of statutory damages, attorney fees, and court costs.

{¶ 6} Four days after Hogan Lovells filed its complaint, DRC responded to the records request. Although DRC provided more than 120 pages of documents, it asserted that other documents were exempt from disclosure. Two specific requests—Nos. 11 and 16—are now at issue.

{¶ 7} In request No. 11, Hogan Lovells asked for correspondence between DRC and any other party from January 1, 2019, to July 19, 2019, "regarding any considered, proposed, or current execution protocols, regulations, guidelines, checklists, notes, or other documents that instruct or direct the carrying out of an execution." DRC produced a policy that establishes guidelines for carrying out executions. That policy is labeled "01-COM-11" and is dated as being effective October 7, 2016. But DRC withheld four other responsive documents from Hogan Lovells's request No. 11: (1) a summary of execution-protocol options prepared by DRC's chief counsel, (2) a May 16, 2019 e-mail and attached document sent by DRC's chief counsel to two DRC employees, (3) a May 21, 2019 e-mail and attached document sent by a DRC employee to DRC's chief counsel, and (4) a June 11, 2019 e-mail and attached document sent by DRC's chief counsel to the governor's chief counsel. DRC asserted that the withheld records were protected under the attorney-client and work-product privileges, and it noted that a federal court, in a case challenging Ohio's execution protocol, had found that those records were privileged.

{¶ 8} In request No. 16, Hogan Lovells asked for "[r]ecords pertaining to training activities or exercises related to execution procedures or protocol from January 1, 2019 through [July 19, 2019], including any and all records pertaining to any substances used during the training exercises and including any reports, evaluations, or other documents produced pursuant to such trainings." In response to that request, DRC produced training logs, training forms, agendas for planning and status meetings, and execution-team training schedules. But DRC withheld records of trainings or exercises conducted for the execution of specific inmates. DRC asserted that those records were exempt under R.C. 5120.21(F), which states that "records of inmates" generally "shall not be considered public records."

{¶ 9} After DRC filed its answer to Hogan Lovells's complaint, we granted an alternative writ and ordered the parties to submit evidence and file briefs in accordance with S.Ct.Prac.R. 12.05. 158 Ohio St.3d 1480, 2020-Ohio-1487, 143 N.E.3d 516. Pursuant to this court's subsequent order, DRC filed under seal for in camera inspection unredacted copies of all the records that it had withheld in response to Hogan Lovells's request Nos. 11 and 16. 159 Ohio St.3d 1467, 2020-Ohio-3884, 150 N.E.3d 121.

II. ANALYSIS

{¶ 10} R.C. 149.43(B)(1) requires a public office, on request, to make public records available for inspection within a reasonable period of time. A person denied access to public records may seek to compel their production in a mandamus action. R.C. 149.43(C)(1)(b). To prevail, the requester must establish by clear and convincing evidence a clear legal right to the records and a corresponding clear legal duty on the part of the respondent to provide them. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs. , 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 22-24 ; State ex rel. Cincinnati Enquirer v. Deters , 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 19. When a public office withholds responsive records, it has the burden of proving that they are statutorily exempted from disclosure. State ex rel. Cincinnati Enquirer v. Jones-Kelley , 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10.

A. Hogan Lovells's claim is not moot

{¶ 11} DRC argues that this case is moot because it has provided all nonexempt records responsive to Hogan Lovells's request. But as we discuss below, questions remain about whether DRC has properly withheld records (or portions of records) based on claimed statutory exemptions. And even if Hogan Lovells is not entitled to additional records, its requests for awards of statutory damages, attorney fees, and court costs are not moot. Because these matters are still in dispute, we must address the merits of Hogan Lovells's claim.

B. Request No. 11

{¶ 12} After learning that DRC had withheld four records in response to request No. 11 based on claims of attorney-client and work-product privilege, Hogan Lovells demanded that DRC produce copies of those records with any privileged information redacted. DRC eventually acceded to Hogan Lovells's demand by providing copies that were almost entirely redacted. The dispute concerning request No. 11 now centers on whether DRC's initial refusal to provide the records was proper and whether DRC's later redaction of the records was too extensive.

{¶ 13} Hogan Lovells does not squarely challenge DRC's claim that the four records, at least to some extent, are covered by the attorney-client or work-product privilege. It is well established that records covered by the attorney-client privilege are not public records. State ex rel. Lanham v. DeWine , 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 26 (applying R.C. 149.43(A)(1)(v) ). And under R.C. 149.43(A)(1)(g), records constituting attorney work product may be exempt from disclosure as "[t]rial preparation records." See Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. , 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 55 (stating that the work-product privilege protects "the attorney's mental processes in preparation of litigation"). Thus, to the extent that the attorney-client privilege or the trial-preparation exemption applies, the withheld records are exempt from disclosure.

{¶ 14} In demanding that DRC disclose more of the records with fewer redactions, Hogan Lovells relies on R.C. 149.43(B)(1), which provides that "[i]f a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt." DRC, in turn, relies on cases in which we have suggested that a public...