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




ROBERT C. FOULK                                       Case No. 2017-00132-PQ

       Requester                                      Judge Patrick M. McGrath

       v.                                             ENTRY ADOPTING
                                                      RECOMMENDATION OF
CITY OF UPPER ARLINGTON, OHIO                         SPECIAL MASTER

       Respondent


        {¶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
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                               Mark R. Weaver
4380 Braunton Road                            Molly R. Gwin
Columbus, Ohio 43220-4304                     Two Miranova Place, Suite 700
                                              Columbus, Ohio 43215-5098
Filed June 19, 2017
Sent to S.C. Reporter 7/7/17
