[Cite as Chillicothe Gazette v. Chillicothe City Schools, 2018-Ohio-5445.]




CHILLICOTHE GAZETTE                                     Case No. 2018-00950PQ

        Requester                                       Special Master Jeffery W. Clark

        v.                                              REPORT AND RECOMMENDATION

CHILLICOTHE CITY SCHOOLS

        Respondent


        {¶1} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of
records under R.C. 2743.75 if the court of claims determines that a public office has
denied access to public records in violation of R.C. 149.43(B). The policy underlying the
Act is that “open government serves the public interest and our democratic system.”
State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20.
“[O]ne of the salutary purposes of the Public Records Law is to ensure accountability of
government to those being governed.” State ex rel. Strothers v. Wertheim, 80 Ohio
St.3d 155, 158, 684 N.E.2d 1239 (1997). Therefore, “[w]e 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.
        {¶2} On      the    morning of         April 30,       2018, reporter Jona   Ison of   the
Chillicothe Gazette made a public records requests to respondent Chillicothe City
Schools (CS):
        I have heard rumor Jon Saxton has/is resigning today. Has he submitted a
        resignation letter? If so, please provide me a copy.
        Also, if the Title IX report by the attorneys has been completed and
        provided to the district, please provide me a copy. [Request No. 1]
(Am. Compl., Exh. E, p. 2-3.) Chillicothe CS promptly responded that
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       There are no documents which would satisfy your first request. The
       document which is the subject of your second request is protected by
       attorney-client privilege.
(Id.) On the afternoon of April 30, 2018, Ison added the following requests:
        The Gazette would like to receive copies of the following:
            Contract or other documentation outlining the cost and scope of
             work to be done by Freund, Freeze & Arnold and/or attorney
             Sandra R. McIntosh. [Request No. 2]
            Meeting minutes showing board approval to hire Freund, Freeze &
             Arnold and/or attorney Sandra R. McIntosh. [Request No. 3]
            All bills from Freund, Freeze & Arnold and/or                 attorney
             Sandra R. McIntosh for 2017 and 2018. [Request No. 4]
(Id., Exh. A, p. 2-3, with attachment Exh. B.) Chillicothe CS responded on May 4, 2018
that:
        Sandra was appointed as counsel through the District’s liability insurer,
        and was not engaged by the Board. Therefore, I can not produce meeting
        minutes or bills from her for 2017 and 2018 because we do not have any.
(Id., Exh. A, p. 2.) On May 7, 2018, Ison sent an email containing a final request:
        Please send me a copy of the insurance policy you referred to below as
        well as all correspondence with the insurance carrier related to Freund,
        Freeze & Arnold and/or attorney Sandra R. McIntosh being retained and
        throughout the retainer. [Request No. 5]
(Id., Exh. A, p. 1.) On May 21, 2018, Chillicothe CS produced a copy of the requested
insurance policy. (Id.; Reply, Exh. C.) On May 23, 2018, Chillicothe CS further
responded:
        I never got to speak with you about the questions you had about the date,
        scope of work, and who initiated it, etc.
        Here is what I can tell you. The date of the correspondence was
        10/13/2017, she is no longer actively engaged, and she was appointed
        insurance council [sic].
        This may not help you much but this is all the information I can provide
        you with.
(Am. Compl., Exh. C.) On May 29, 2018, counsel for the Gazette reiterated Ison’s
request for the “Title IX investigation report” and added a request for “an engagement
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letter in which the School District laid out the terms of the engagement. We believe this
is dated 10/13/17.” [Request No. 6]. (Id., Exh. D, p. 1.) On May 30, 2018, counsel for
Chillicothe CS responded that
       Ms. Ison requested records related to Sandy McIntosh and her firm,
       Freund, Freeze and Arnold. Ms. McIntosh was appointed as counsel by
       the District's liability insurance carrier. Ms. Lawwell properly indicated that
       any responsive documents are privileged. Ms. McIntosh has not prepared
       any "independent Title IX investigation report." That is/was not her role.
(Id., Exh. E, p. 1.)
       {¶3} On June 13, 2018, the Gazette filed a complaint under R.C. 2743.75
alleging denial of access to public records by Chillicothe CS in violation of
R.C. 149.43(B). On July 10, 2018, the Gazette filed an amended complaint. Following
unsuccessful mediation, Chillicothe CS filed a motion to dismiss (Response) on
September 14, 2018. On September 25, 2018, Chillicothe CS provided an additional
record to the Gazette. (Reply at 1, Reply Exh. A.) Chillicothe CS has filed a number of
withheld items under seal, and on November 9, 2018 filed a supplemental response.
       Motion to Dismiss
       {¶4} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must
presume that all factual allegations of the complaint are true and make all reasonable
inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d
190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it
must appear beyond doubt that plaintiff can prove no set of facts entitling him to
recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245,
327 N.E.2d 753 (1975).
       {¶5} Chillicothe CS moves to dismiss the complaint on the grounds that
1) requester has not identified the records sought with sufficient clarity, 2) any legal
services bills paid by the insurance carrier are not “records” of respondent, 3) meeting
minutes as described in the request do not exist, 4) the requested “independent Title IX
investigation report” does not exist, and 5) responsive communications between
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Attorney McIntosh and the Board are protected from disclosure by attorney-client
privilege. Although Chillicothe CS did not deny any of the requests on the grounds of
ambiguity or overbreadth prior to the filing of this action, it now asserts that “[t]he
inconsistency of the official public records request, original Complaint, and Amended
Complaint demonstrate the Requester has failed to request the records sought “with
reasonable clarity.” However, it is the public records request that must “reasonably
identify what public records are being requested,” not the complaint. See
R.C. 149.43(B)(2). While not a model of clarity, the complaint sufficiently pleads denial
of the requests attached to the complaint through the content of the correspondence,
the name of the school official responsible for the denial, and the date of final denial.
       {¶6} While part of Request No. 2, and all of Request No. 3, are ambiguous and
overly broad, Request No. 2 also includes a proper request, and Request No. 3 is
properly denied on multiple grounds. Therefore, these requests will be addressed below
on the merits. The other defenses presented by the City; non-existence, non-records,
common-law attorney-client privilege, and mootness, cannot be determined based
solely on the complaint and attachments thereto. I therefore recommend that the motion
to dismiss be DENIED, and the matters determined on the merits.
       Burdens of Proof
       {¶7} In an action to enforce Ohio’s Public Records Act (PRA), the burden is on
the requester to prove an alleged violation. In mandamus enforcement actions,
       [a]lthough the PRA is accorded liberal construction in favor of access to
       public records, “the relator must still establish entitlement to the requested
       extraordinary relief by clear and convincing evidence.”
State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d
598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by
clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153
¶ 27-30 (5th Dist.).
       {¶8} If a public office asserts an exception to the Public Records Act, the burden
of proving the exception rests on the public office. “Exceptions to disclosure under the
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Public Records Act, R.C. 149.43, are strictly construed against the public-records
custodian, and the custodian has the burden to establish the applicability of an
exception. A custodian does not meet this burden if it has not proven that the requested
records fall squarely within the exception.” State ex rel. Cincinnati Enquirer v. Jones-
Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the
syllabus. Any doubt should be resolved in favor of disclosure. State ex rel. James v.
Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).
        {¶9} However, the defense that an item is not a record does not assert an
exception, and the burden of proof remains with the requester. When this assertion is
made,
         a requester must establish that they are (1) documents, devices, or
         items, (2) created or received by or coming under the jurisdiction of
         CMHA, (3) which serve to document the organization, functions, policies,
         decisions, procedures, operations, or other activities of the office.
(Emphasis added.) State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro.
Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23. See State ex
rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d
274, ¶ 19 (If requester fails to prove any of these three requirements, the items are not
subject to disclosure under the Public Records Act).
        {¶10} The burden is thus on the requester to show that disputed items meet the
definition of a “record.” But see Hurt v. Liberty Twp. at ¶ 75-78. Similarly, where an
office attests that requested records do not exist, the requester has the burden to
establish that the records exist by clear and convincing evidence. State ex rel.
McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246,
976 N.E.2d 877, ¶ 22-26.
        Request No. 1 for “the Title IX report by the attorneys”
        {¶11} Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq.,
prohibits discrimination on the basis of sex in any educational program or activity that
receives certain federal funding. On April 4, 2011, the U.S. Department of Education
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Office for Civil Rights issued a Dear Colleague letter (“2011 Letter”)1 that, as relevant
here, addresses grievance procedures for resolution of complaints alleging actions
prohibited by Title IX. “As part of these procedures, schools generally conduct
investigations and hearings to determine whether sexual harassment or violence
occurred,” 2011 Letter at 10. Such an investigation is referred to as a “Title IX
investigation.”
       {¶12} Chillicothe CS commissioned two reports related to a student complaint
involving former employee Dr. Jeffrey Fisher, but only one is a Title IX investigation
report. The first report, titled Chillicothe High School Title IX Investigation (Dr.
Jeffrey R. Fisher), was prepared pursuant to board policy and has been disclosed to the
Gazette in redacted form. (Reply, Exh. A; Supplemental Response at 4-5.) The first
report addressed whether sexual harassment or violence occurred, and Chillicothe CS
does not dispute that the first report is a “Title IX report by the attorneys.” Chillicothe CS
redacted portions of the first report pursuant to the federal Family Education Rights
and Privacy Act (FERPA), 20 U.S.C. §1232g; 34 C.F.R. Part 99; and pursuant to
R.C. 3319.321. These exceptions will be reviewed separately below.
       {¶13} The purpose of the second report, titled Attorney-Client Report and
Recommendations Related to the Chillicothe High School Title IX Sex Harassment
Investigation (Jeffrey R. Fisher), was not to establish whether sexual harassment or
violence occurred. Instead, it contains the attorney’s analysis and recommendations for
future risk management and student safety improvements. (Id.; Oct. 10, 2018 Mullins
Aff. at ¶ 3; Oct. 10, 2018 Philemond Aff. at ¶ 3.). The second report was not a Title IX
investigation report, and thus not a record sought by the Gazette’s request. A public
office is only required to produce records that match the terms of the request. State ex
rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-
4246, 976 N.E.2d 877, ¶ 25; Ebersole v. Powell, Ct. of Cl. No. 2018-00478-PQ, 2018-


       1  The 2011 Letter is a “significant guidance document” for Title IX compliance, archived at
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (Accessed November 16, 2018.)
Case No. 2018-00950PQ                       -7-     REPORT AND RECOMMENDATION

Ohio-4597, ¶ 37. I find that the Gazette has not shown by clear and convincing
evidence that Chillicothe CS failed to comply with R.C. 149.43(B) by not providing the
second report. As this defense is dispositive, the assertion that attorney-client privilege
applies to the contents of the second report need not be determined.


      Family Education Rights and Privacy Act (FERPA)
      {¶14} FERPA, where applicable, constitutes a prohibition on the release of
records under the Public Records Act. State ex rel. ESPN, Inc. v. Ohio State Univ., 132
Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 18-25. As relevant here, FERPA
prohibits an educational institution from having
      a policy or practice of permitting the release of education records (or
      personally identifiable information contained therein other than directory
      information * * *) of students without the written consent of their parents to
      any individual, agency, or organization.

20 U.S.C. 1232g(b)(1). The term “education records” means materials which “(i) contain
information directly related to a student; and (ii) are maintained by an educational
agency or institution or by a person acting for such agency or institution.” 20
U.S.C. 1232g(a)(4). Although the Title IX investigation here was of an employee, rather
than a student, the report is an “education record” to the limited extent it contains
information identifying individual students. ESPN at ¶ 28-30.
      {¶15} FERPA permits an educational institution to disclose education records if it
has removed all personally identifiable information. See United States v. Miami Univ.,
294 F.3d 797, 811, 824 (6th Cir.2002). “Personally identifiable information” includes:
      (a) The student’s name;
      (b) The name of the student’s parent or other family members;
      (c) The address of the student or student’s family;
      (d) A personal identifier, such as the student’s social security number, student
          number, or biometric record;
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       (e) Other indirect identifiers, such as the student’s date of birth, place of birth,
           and mother’s maiden name;
       (f) Other information that, alone or in combination, is linked or linkable to a
           specific student that would allow a reasonable person in the school
           community, who does not have personal knowledge of the relevant
           circumstances, to identify the student with reasonable certainty; or
       (g) Information requested by a person who the educational agency or institution
           reasonably believes knows the identity of the student to whom the education
           record relates.
34 CFR 99.3. Based on the above, I find that that Chillicothe CS may redact personally
identifiable information of students identified in the Title IX report.
       R.C. 3319.321
       Like FERPA, Ohio’s R.C. 3319.321(B) provides:
       No person shall release, or permit access to, personally identifiable
       information other than directory information concerning any student
       attending a public school, for purposes other than those identified in
       division (C), (E), (G), or (H) of this section, without the written consent of
       the parent, guardian, or custodian of each such student who is less than
       eighteen years of age, or without the written consent of each such student
       who is eighteen years of age or older.
Unlike FERPA, the statute is not limited to “education records,” but broadly prohibits
release of any personally identifiable information other than directory information
concerning any student attending a public school. “Personally identifiable information” is
not defined in the Ohio Revised Code for purposes of Chapter 3319, and the court must
therefore refer to the related FERPA definition at 34 C.F.R. § 99.3. I conclude that in
this case R.C. 3319.321(B) provides an exception nearly identical to that in FERPA, and
requires Chillicothe CS to withhold all “personally identifiable information” of the
students identified in the Title IX report.
Case No. 2018-00950PQ                      -9-     REPORT AND RECOMMENDATION

      Extent of Redaction
      {¶16} FERPA and R.C. 3319.321(B) do not permit redaction of adjacent non-
exempt material. ESPN held that “[w]ith the personally identifiable information
concerning the names of the student-athlete, parents, parents’ addresses, and the other
person involved redacted, FERPA would not protect the remainder of these records.”
ESPN at ¶ 33-35. The Public Records Act likewise requires 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.
R.C. 149.43(B)(1). Surgical redaction that retains disclosure of non-exempt portions of a
record furthers this core purpose of the Act: “The Public Records Act serves a laudable
purpose by ensuring that government functions are not conducted behind a shroud of
secrecy.” ESPN at ¶ 40. Neither these statutes, nor any other public records exception,
permits withholding material from this report on the grounds that it is salacious,
embarrassing, or otherwise implicates generalized privacy concerns. See State ex rel.
WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116,
¶ 30-36. On review of the redacted report in camera, I find that Chillicothe CS redacted
all “personally identifiable information” that falls within categories (a) through (e).
However, additional material was redacted that does not fall within categories (a)
through (e).
      {¶17} Jessica Philemond states that she prepared the redacted copy of the Title
IX report “to remove personally identifiable student information in accordance with”
FERPA and R.C. 3319.321 while serving as legal counsel to Chillicothe CS. (Philemond
Aff. at ¶ 4.) Philemond states that she provided no professional services to Chillicothe
CS prior to December 18, 2017. (Id. at ¶ 2.) Philemond does not relate any source of
knowledge other than her own in determining what material was personally identifiable
information. Chillicothe CS did not claim, and provided no evidence, that any redacted
material falls under Personally Identifiable Information category (f). Nevertheless, some
Case No. 2018-00950PQ                       -10-     REPORT AND RECOMMENDATION

of the additional redacted information appears likely to allow a reasonable person in the
school community, who does not have personal knowledge of the relevant
circumstances, to identify the student with reasonable certainty.
       {¶18} I find on review of the unredacted Title IX report (Exh. 7, filed under seal),
and the report as released (Reply, Exh. A; Exh. 6, filed under seal), that Chillicothe CS
fails to show that the following material fell under any category of “personally identifiable
information.” The explanatory column identifies any items that may remain redacted:


 Non-Exempt Material       Explanation, And Material That May Remain Redacted
 Pg. 2, ¶ 2, line 5        Redacted word indicates only gender
 Pg. 4, ¶ 4, lines 6 & 7   Only student names, not action or inaction, may be redacted
 Pg. 4, ¶ 4, line 10       No FERPA exception applies to non-identifying statements
 Pg. 5, ¶ 1, lines 1 & 2   No FERPA exception applies to non-identifying statements
 Pg. 5, ¶ 3, line 3        No FERPA exception applies to description of Fisher’s
                           position at the time.
 Pg. 5, ¶ 3, title and Only the student name and class year may be redacted.
 lines 4-6             FERPA exceptions to not apply to actions, inactions, or
                       contents of statements.
 Pg. 5, ¶ 3, line 7        Only student name may be redacted.
 Pg. 5, ¶ 4                Only student names, not non-identifying statements and
                           actions, may be redacted.
 Pg. 5, ¶ 5                Only student names may be redacted. May also redact
                           brand names of gifts, as specific enough that may allow
                           reasonable person in the school community to identify.
 Pg. 5, ¶ 6 (continuing Only names and class years may be redacted. Action or
 onto Pg. 6, lines 1-2) inaction may not be redacted. Locations may not be
                        redacted – not specific enough to lead reasonable person
                        w/o personal knowledge to identity of student with
                        reasonable certainty.
 Pg. 5, fn. 3              No FERPA exception applies
 Pg. 6, ¶ 2, line 1        Phrase “was friends with” is not excepted under FERPA.
Case No. 2018-00950PQ                   -11-     REPORT AND RECOMMENDATION

Pg. 6, ¶ 2, lines 4-13   Only student names and dates which would identify class
                         year may be redacted.
Pg. 6, ¶ 3               Only student names, not actions or inaction, may be
                         redacted.
Pg. 6, ¶ 4, line 1-3     Only student name may be redacted.
Pg. 6, ¶ 4, lines 4-16   First four words in line 4 may remain redacted. Starting with
                         first full sentence in line 4, only student name may be
                         redacted. No other FERPA exceptions apply to the actions or
                         contents of the statements.
Pg. 6, ¶ 5, title and Only student name may be redacted.
lines 1-2
Pg. 7, ¶ 1               Only name, student nickname, and references to class years
                         may be redacted.
Pg. 7, ¶ 2               Only names and dates may be redacted.
Pg. 7, ¶ 3               Student and student relative’s names, and gift brand names,
                         may be redacted.
Pg. 7, ¶ 4               Only student names and all of line 5 may be redacted.
Pg. 8, ¶ 2, line 4       Redacted location not subject to FERPA exception.
Pg. 8, ¶ 4, lines 7-12   Only student names may be redacted. Dates not subject to
                         FERPA exception in this context. Contents of text
                         conversation not subject to FERPA exception.
Pg. 8, ¶ 5               Only student name and class year may be redacted.
Pg. 9, ¶ 1               Only student name may be redacted.
Pg. 9, ¶ 2               If the message sent was a “private” or “direct” Twitter
                         message, only student name may be redacted. If the
                         message was a public Twitter post, the current redaction is
                         acceptable.
Pg. 9, ¶ 3               Only student and relative’s names and class year may be
                         redacted.
Pg. 9, ¶ 4               Only student name, parent name, and class year may be
                         redacted.
Pg. 9, ¶ 5, lines 1-12   Only student name, class year, and all of lines 4 and 13 may
                         be redacted.
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 Pg. 9, ¶ 6, lines 7-10    Only student name may be redacted.
 Pg. 10, ¶ 1, lines 1-2    Only student name may be redacted.
 Pg. 11, ¶ 4, line 3       No FERPA exception applies to statement contents.

        Request No. 2 for “Contract or other documentation outlining the cost and
        scope of work to be done by Freund, Freeze & Arnold and/or attorney
        Sandra R. McIntosh”
        {¶19} A requester must reasonably identify the particular records sought. A
request that is ambiguous or overly broad may be denied “[i]f a requester makes an
ambiguous or overly broad request or has difficulty in making a request for copies or
inspection of public records under this section such that the public office or the person
responsible for the requested public record cannot reasonably identify what public
records are being requested.” R.C. 149.43(B)(2). It is “the responsibility of the person
who wishes to inspect and/or copy records to identify with reasonable clarity the records
at issue.” State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d
122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. See State ex rel. Zauderer v. Joseph, 62
Ohio App.3d 752, 756, 577 N.E.2d 444 (10th Dist.). A request for all records throughout
an office, based only on the description of a topic, is inherently problematic. See
Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl. No. 2017-00051-PQ,
2017-Ohio-4247, ¶ 10; Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio-
3475.
        {¶20} Judicial determination of whether an office has properly denied a request
as ambiguous or overly broad is based on the facts and circumstances in each case,
Zidonis at ¶ 26. I find that the phrase “or other documentation” in Request No. 2 is not
sufficiently specific to reasonably identify what records, other than a contract, were
sought by this request.
        Embedded Request
        {¶21} A proper request embedded within an otherwise ambiguous or overly broad
request may be enforceable. In State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391,
Case No. 2018-00950PQ                       -13-      REPORT AND RECOMMENDATION

2008-Ohio-4788, 894 N.E.2d 686, ¶ 5, 17-24, a request for all a state representative’s
email for five months was found overly broad, but embedded language – “including, but
not limited to [a particular house bill]” – was sufficiently narrow to be a proper request. I
find that by excising the phrase “or other documentation,” Request No. 2 contains a
sufficiently specific request for a “contract * * * outlining cost and scope of work to be
done” by the named law firm and/or attorney.
       Non-Existent Records
       {¶22} In response to the specific request for a copy of the described contract,
Chillicothe CS states that it has no such contract to provide. (Supplemental Response
at 2; McIntosh Aff. at ¶ 2.) A public office has no duty to provide records that do not
exist, or that it does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343,
2014-Ohio-869, 6 N.E.3d 471, ¶ 5, 8-9.
       Non-Records
       {¶23} Chillicothe CS further asserts that wherever bills for McIntosh’s legal
services to it might exist, they are not “records” of Chillicothe CS. (Response at 7.) To
constitute a public record subject to the Public Records Act a document must be a
“record” and must be “kept by” the public office. R.C. 149.43(A)(1); State ex rel. Sch.
Choice Ohio, Inc. v. Cincinnati Pub. Sch. Dist., 147 Ohio St.3d 256, 2016-Ohio-5026, 63
N.E.3d 1183, ¶ 13; State ex rel. Cincinnati Enquirer v. Cincinnati Bd. of Edn., 99 Ohio
St.3d 6, 2003-Ohio-2260, 788 N.E.2d 629, ¶ 11-15.
       “Records” are defined in R.C. 149.011(G) as including:
       any document, device, or item, regardless of physical form or
       characteristic, * * *, created or received by or coming under the jurisdiction
       of any public office of the state or its political subdivisions, which serves to
       document the organization, functions, policies, decisions, procedures,
       operations, or other activities of the office.
The Gazette has the burden to show that a contract for McIntosh’s legal services was
created by, received by, or came under the jurisdiction of Chillicothe CS, and that it
served to document the organization, functions, policies, decisions, procedures,
Case No. 2018-00950PQ                      -14-      REPORT AND RECOMMENDATION

operations, or other activities of Chillicothe CS. I find that the Gazette has not met this
burden. First, there is no affirmative showing that any contract was created by, received
by, or came under the jurisdiction of Chillicothe CS. Communication from Liberty Mutual
to Chillicothe CS did not include a contract for legal services or copies of invoices for
McIntosh’s legal fees. (Mullins Aff. at ¶ 2.a., b., d.) Legal services were arranged and
paid for by Liberty Mutual. (Supplemental Response at 2; McIntosh Aff. at ¶ 2.) The
requested document was therefore not created, received by, or under the jurisdiction of
Chillicothe CS. The same evidence establishes that the described contract was not
“kept by” Chillicothe CS.
       {¶24} Second, the purported contract did not document the organization,
functions, policies, decisions, procedures, operations or other activities of Chillicothe CS
because Chillicothe CS did not retain McIntosh’s services—Liberty Mutual did so after
Chillicothe CS made a claim for insurance benefits. (Mullins Aff. at ¶ 2; McIntosh Aff. at
¶ 2.) I find under these circumstances that the described contract for legal services was
not a record of Chillicothe CS.
       {¶25} I conclude that Request No. 2 was improperly ambiguous and overly broad
to the extent it requested “other documentation” regarding legal services. I further find
that no Chillicothe CS contract with the named firm or attorney existed, and if a contract
for the described services exists elsewhere, it is not a record of Chillicothe CS.
       Request No. 3 for “Meeting minutes showing board approval to hire
       Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh”

       {¶26} First, this request is a request for information or research, rather than a
request for specific existing records. The Public Records Act does not
       compel a governmental unit to do research or to identify records
       containing selected information. That is, relator has not established that a
       governmental unit has the clear legal duty to seek out and retrieve those
       records which would contain the information of interest to the requester.
       Cf. State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St.3d 177, 179, 464
       N.E.2d 556. Rather, it is the responsibility of the person who wishes to
Case No. 2018-00950PQ                     -15-     REPORT AND RECOMMENDATION

      inspect and/or copy records to identify with reasonable clarity the records
      at issue.

State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591,
*3-4 (April 28, 1993), aff’d, 68 Ohio St.3d 117, 623 N.E.2d 1202 (1993). Accordingly, a
request for meeting minutes that contain discussion of a particular topic is an improper
request for information rather than records. Salemi v. Cleveland Metroparks, 8th Dist.
Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 26; State ex rel. O'Shea & Assocs. Co.,
L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio App.3d 218, 222, 2010-Ohio-3416,
941 N.E.2d 807, ¶ 7-11. I find that the Gazette’s request for “meeting minutes showing
board approval to hire Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh”
was an improper request to search for records containing information of interest to the
requester.
      {¶27} Separately, Chillicothe CS has shown that meeting minutes as described in
the request do not exist. Chillicothe CS attests there were no meeting minutes
discussing McIntosh’s legal representation of the district, but that board meeting
minutes are available to the public online. (Mullins Aff. at ¶ 2.c.) The Gazette counters
that “[i]t seems unlikely that there would be no Board minutes related to Freund” (Reply
at 3-4), but offers no affirmative evidence that such minutes exist. Even a reasonable
and good faith belief by a requester, based only on inference and speculation, does not
constitute the clear and convincing evidence necessary to establish that responsive
documents exist. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133
Ohio St.3d 139, 2012-Ohio-4246, ¶ 22-26; State ex rel. Gooden v. Kagel, 138 Ohio
St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 8. I find that the Gazette fails to meet its
burden to prove that Chillicothe CS violated R.C. 149.43(B) in not producing “meeting
minutes showing board approval to hire Freund, Freeze & Arnold and/or attorney
Sandra R. McIntosh.”
      Request No. 4 for “All bills from Freund, Freeze & Arnold and/or attorney
      Sandra R. McIntosh for 2017 and 2018.”
Case No. 2018-00950PQ                       -16-     REPORT AND RECOMMENDATION

       {¶28} Chillicothe CS asserts that the requested bills from Freund, Freeze &
Arnold or McIntosh are not records of Chillicothe CS. (Response at 7). Chillicothe CS
explains that it was not responsible for, did not receive, and did not pay any legal fees to
McIntosh. (Mullins Aff. at ¶ 2.d.) Instead, Liberty Mutual engaged necessary legal
services pursuant to an insurance policy that has been provided to the Gazette. (Id.;
Reply, Exhibit C.) Based on the same evidence and authority used in the analysis of
Request No. 2, above, I find that “bills from Freund, Freeze & Arnold, and/or attorney
Sandra R. McIntosh for 2017 and 2018” were not created, received, come under the
jurisdiction of Chillicothe CS, or document the activities of Chillicothe CS. I find that the
described bills for legal services do not meet the definition of “records” of Chillicothe CS.


       Quasi-Agency
       {¶29} The Gazette contends that even if Chillicothe CS does not possess the
requested legal bills, it must obtain and produce the bills because the bills are not
“outside of its control.” (Reply at 3). In certain circumstances, records in the possession
of a private entity may be public records subject to the Public Records Act. State ex rel.
Toledo Blade v. Ohio Bur. of Worker’s Comp., 106 Ohio St.3d, 112, 2005-Ohio-3549,
832 N.E.2d 711, ¶ 20; State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654,
657, 758 N.E.2d 1135 (2001). Under the theory of “quasi-agency,” a private entity may
be a “person responsible” for public records. State ex rel. Carr v. Akron, 112 Ohio St.3d
351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 36. When records in the possession of a
private entity are thereby subject to the Public Records Act, a request made of the
public office should afford the requester access to the records in possession of the
private entity. Krings at 659; State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39,
550 N.E.2d 464 (1990).
       {¶30} This court has previously declined to analyze claims under a theory of
quasi-agency where the requester does not first establish that the requested documents
were “records” under the Public Records Act. Ebersole v. Powell, Ct. of Cl. No.
Case No. 2018-00950PQ                       -17-      REPORT AND RECOMMENDATION

2018-00478PQ, 2018-Ohio-4597, ¶ 19. A quasi-agency analysis is arguably
unnecessary in this case as well, because the Gazette fails to show by clear and
convincing evidence that the purported legal bills meet the definition of a “record” of
Chillicothe CS.
       {¶31} However, even if a quasi-agency analysis was necessary, the result would
not change. A private entity is a “responsible person” under R.C. 149.43(C) only if all
the following conditions are met: (1) the private entity must prepare the records in order
to carry out a public office’s responsibilities; (2) the public office must be able to monitor
the private entity’s performance; and (3) the public office must have access to the
records for the purpose of monitoring performance. Toledo Blade v. Ohio Bur. of
Worker’s Comp., at ¶ 20. In this case, no prong of the Ohio Supreme Court’s three-
prong test is satisfied.
       {¶32} Neither party addresses the first requirement of quasi-agency – whether
Liberty Mutual received legal bills “in order to carry out Chillicothe CS’s responsibilities.”
It appears that Liberty Mutual documented purchase of legal services as an internal
record of the delivery of insurance benefits, but providing insurance, even to a public or
governmental entity, “has not been established to be a historically governmental
function.” State ex rel. Brooks, 130 Ohio St.3d 87, 2011-Ohio-4897, 955 N.E.2d 987,
¶ 22. The Gazette might argue that legal defense of Chillicothe CS’ official actions is the
relevant “responsibility carried out” under this analysis, and that had the school district
sought legal representation directly, bills from counsel would have been subject to the
Public Records Act. State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio
St.3d 400, 403, 678 N.E.2d 557 (1997). However, unlike Shirey the facts in this case do
not involve a direct contracting of a task, but the purchase of an insurance policy for
which benefits are promised. Chillicothe CS purchased an insurance policy from Liberty
Mutual (Reply, Exh. C; Mullins Aff. at ¶ 2.d), and Liberty Mutual appointed McIntosh
pursuant to that policy. (Mullins Aff. at ¶ 2, 2.d; McIntosh Aff. at ¶ 2). The premium
amount and the terms of the insurance policy are records of Chillicothe CS that
Case No. 2018-00950PQ                              -18-      REPORT AND RECOMMENDATION

document its decisions and actions in obtaining liability insurance. However, because
there is no correspondence between the legal bills paid by Liberty Mutual, and the
premium paid by Chillicothe CS, I find that the legal bills were not created “in order to
carry out Chillicothe CS’ responsibilities.”
        {¶33} Second, the Gazette has not shown that the terms of the insurance policy
gave Chillicothe CS the ability to monitor Liberty Mutual’s performance in paying
McIntosh’s bills. Finally, the Gazette has not shown that Chillicothe CS had access to
those bills for the purpose of monitoring Liberty Mutual’s performance. Instead,
Chillicothe CS had access only to its policy, and its communications with McIntosh in
the course of her delivery of legal services. See State ex rel. ACLU of Ohio v. Cuyahoga
Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 52-54. I
find that the legal bills for McIntosh’s services are not subject to the Public Records Act
under the quasi-agency theory.
        {¶34} Under the facts and circumstances of this case, the Gazette has failed to
establish that the legal bills are public records subject to disclosure.2
        Request No. 5 for Copy of insurance policy and “all correspondence with
        the insurance carrier related to Freund, Freeze & Arnold and/or attorney
        Sandra R. McIntosh being retained and throughout the retainer.”
        {¶35} Chillicothe CS has produced a copy of the insurance policy. (Reply, Exh.
C). The Gazette’s claim is moot as it relates to this portion of the request.
        {¶36} Chillicothe CS asserts that “Requester has not identified the records sought
with reasonable clarity.” (Response at 5-6). Request No. 5 asks that a search be made
through “all correspondence” – a general terms that does not reasonably identify a
specific category of office records. See generally Gupta v. Cleveland, Ct. of Cl. No.
2017-00840PQ, 2018-Ohio-3475. In the analogous case of Kanter v. Cleveland Heights,
Ct.   of   Cl.   No.     2018-01092PQ,         2018-Ohio-4592,        the    requester      sought     “all

2  Even were the legal bills subject to the Public Records Act, Chillicothe CS has raised the defense of
attorney-client privilege. (Response at 7.) See State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St. 3d
292, 2016-Ohio-2974, 55 N.E.3d 1091. Due to the finding that the bills are not records of Chillicothe CS, I
find it unnecessary to address this defense.
Case No. 2018-00950PQ                      -19-     REPORT AND RECOMMENDATION

communications, messages, schedules, logs, and documents shared between the City
of Cleveland Heights…and employees of the Cleveland Jewish News between
March 20, 2013 and April 12, 2013, regarding Garry Kanter.” The request was found
ambiguous and overly broad. The Gazette’s request for “all correspondence” with the
insurance carrier “related to” the retainer of McIntosh is ambiguous and overly broad for
the same reasons.
      {¶37} First, the Gazette’s request does not name specific persons whose
correspondence is sought. Generally, a request is overly broad when it identifies
correspondents only by their relationship to offices, titles, groups or categories, for
which research is required to recognize membership. State ex rel. Oriana House, Inc. v.
Montgomery, 10th Dist. Franklin No. 04AP-492, 04AP-504, 2005-Ohio-3377, ¶ 9, rev’d
on other grounds, 107 Ohio St.3d 1694, 2005-N.E.2d 201; Gannett GP Media, Inc. v.
Ohio Dept. of Pub. Safety at ¶ 11; Kanter at ¶ 8. This request would require Chillicothe
CS to conduct research to find correspondents based on their membership in
organizations—i.e. the Chillicothe School Board and Liberty Mutual.
      {¶38} Second, requests for documents “regarding” or relating to a topic are
especially problematic:
      A request to find all communications “regarding” a topic, to or from any
      employee, anywhere in the office, requires a needle-in-the-haystack
      search through the office’s paper and electronic communications. It also
      requires judgment calls as to whether any given communication – whether
      persona, tenuous, or duplicative – is “regarding” the topic. If a public office
      attempts such a universal search, the time involved results in delay for the
      requester. Nor can a public office assume that by agreeing to “do the best
      it can” with an ambiguous or overly broad request, instead of denying it,
      will shield it from liability. See State ex rel. Bott Law Group, LLC v. Ohio
      Dep’t of Natural Res., 10th Dist. Franklin No. 12AP-448, 2013-Ohio-5219.
      The dilemma for the public office may not be whether the public office can
      identify any records responsive to the request, but whether the terms of
      the request permit it to reasonably identify all responsive records.

(Emphasis sic.) Gannet GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl. No.
2017-0051PQ, 2017-Ohio-4247, ¶ 10. See State ex rel. Dillery v. Icsman, 92 Ohio St.3d
Case No. 2018-00950PQ                       -20-     REPORT AND RECOMMENDATION

312, 314, 750 N.E.2d 156 (2001) (a request was overly broad where it asked for “any
and all records…containing any reference whatsoever to [the requester]”); State ex rel.
Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 246, 643 N.E.2d 126 (1994) (request
was overly broad where it sought information “regarding or related to” any pro-animal
rights action group or individual).
       {¶39} Third, this request asks for research through office records to find those
containing certain information, rather than reasonably identifying specific records. A
public office is not required to “seek out and retrieve those records which would contain
the information of interest to the requester.” State ex rel. Fant v. Tober, 8th Dist.
Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, * 3-4 (April 28, 1993), aff’d 68 Ohio
St.3d 117, 623 N.E.2d 1202 (1993). See also State ex rel. O’Shea & Associates Co.,
L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio App.3d 218, 2010-Ohio-3416, 941
N.E.2d 297, ¶¶ 7-11 rev’d in part on other grounds, 131 Ohio St.3d 149, 2012-Ohio-115,
692 N.E.2d 297; State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600,
2009-Ohio-1901, 609 N.E.2d 1105, ¶¶ 14-15; Ebersole v. Powell, Ct. of Cl. No.
2018-00478PQ, 2018-Ohio-4597, ¶ 28; Kanter at ¶ 11.
       {¶40} Fourth, the Gazette’s request for all correspondence relating to Freund,
Freeze & Arnold or McIntosh does not identify records in a way that reasonably enables
their identification and retrieval. The request is not limited by a specific department,
litigation file, physical location, record retention series, email domains, or any other
means of narrowing the boundaries for retrieval within the office. See Kanter at ¶ 10.
       {¶41} Finally, the request is not limited to any date range.
       {¶42} I find that the request for “all correspondence with the insurance carrier
related to Freund, Freeze & Arnold and/or Attorney Sandra R. McIntosh being retained
and throughout the retainer” is improperly ambiguous, overly broad, and does not
reasonably identify the records sought. I find the request is moot as to the requested
insurance policy.
       Documents Identified as Responsive to Request No. 5.
Case No. 2018-00950PQ                      -21-     REPORT AND RECOMMENDATION

       {¶43} A public office’s voluntary effort to provide some responsive records,
notwithstanding overbreadth of the request, is considered favorably in evaluating its
response. State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906
N.E.2d 1105, ¶ 6, 14. In response to the order of September 24, 2018, Chillicothe CS
identified and filed under seal two records it deems responsive to Request No. 5.
(Supplemental Response at 2). The records are (1) a copy an email dated November 1,
2017 from Jennifer Bergquist, a claims specialist for Liberty Mutual, to Jon Saxton, the
superintendent of Chillicothe CS (Exh. 1, filed under seal); and (2) a letter dated
October 9, 2018 from Bergquist to Deborah Lewwell, treasurer of Chillicothe CS (Exh. 2,
filed under seal.) Chillicothe CS has not claimed that either of these documents is
subject to any exception to disclosure. (Supplemental Response at 2-3). I find that
Chillicothe CS must provide the Gazette with a copy of the November 1, 2017 email.
However, the October 9, 2018 letter does not fall within the reach of Request No. 5, as it
did not exist at the time of the May 7, 2018 request. State ex rel. Hogan Lovells U.S.,
L.L.P. v. Dept. of Rehab. & Corr., Slip Opinion No. 2018-Ohio-5333, ¶ 29.
       Request No. 6 for “An engagement letter in which the School District laid
       out the terms of the engagement. We believe this is dated 10/13/17.”

       {¶44} This request is arguably ambiguous in that “engagement letter” is not
defined, and is identified only as a document “in which the School District laid out the
terms of the engagement” (See analysis above regarding ambiguity and overbreadth of
Request No. 5). The request is apparently based on a reference to “questions you had
about the date, scope of work, and who initiated it, etc.” in a May 23, 2018 email to Ison.
Lawwell stated: “Here is what I can tell you. The date of the correspondence was
10/13/2017, she is no longer actively engaged, and she was appointed insurance
council [sic].” (Am. Compl., Exh. C.)
       {¶45} In response to the special master’s order to produce the referenced letter
of that date, Chillicothe CS submitted Exh. 3 under seal. Exh. 3 is a representation
notice from McIntosh to Jon Saxton, and its content is primarily the Statement of
Case No. 2018-00950PQ                       -22-      REPORT AND RECOMMENDATION

Insured Client’s Rights provided in accordance with the Ohio Rules of Professional
Conduct. McIntosh identifies herself as counsel retained by Liberty Mutual, gives
contact information, and expresses her preferences regarding future communication.
The letter does not outline the scope of legal work to be done. I find that the letter is not
an “engagement letter” but that sufficient information was exchanged in the
correspondence for Chillicothe CS to identify a letter related to appointed defense
counsel, dated October 13, 2017.
       {¶46} Chillicothe CS argues that the letter is protected from disclosure by
common-law attorney-client privilege. (Response at 6-7; Supplemental Response at 3).
In Ohio, the attorney-client privilege is defined as follows:
       Under the attorney-client privilege, ‘(1) [w]here legal advice of any kind is
       sought (2) from a professional legal adviser in his capacity as such, (3) the
       communications relating to that purpose, (4) made in confidence, (5) by
       the client, (6) are at his instance permanently protected (7) from disclosure
       by himself or the legal adviser, (8) unless the protection is waived.

State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508,
824 N.E.2d 990, ¶ 21. “The attorney-client privilege, which covers 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 County Port Auth., 121 Ohio St.3d 537,
2009-Ohio-1767, 905 N.E.2d 1221, ¶ 22. The party asserting attorney-client privilege
must show the applicability of the privilege. MA Equip Leasing I, LLC v. Tilton,
2012-Ohio-4668, 980 N.E.2d 1072, ¶ 21 (10th Dist.).
       {¶47} A record is not excepted from disclosure under the Public Records Act
merely because it is received from a public office’s legal counsel—it must meet all the
elements of the privilege. Furthermore, any portion of a communication from an attorney
that is nonexempt, such as the general title of the matter being handled, underlying
facts of the case, dates of service, financial arrangements, and the like, must be
disclosed. State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320,
Case No. 2018-00950PQ                              -23-       REPORT AND RECOMMENDATION

980 N.E.2d 975, ¶ 15; Plogger v. Myers, 2017-Ohio-8229, 100 N.E.3d 104, ¶ 9 (8th
Dist.).
          {¶48} Chillicothe CS offers only the bare assertion that “[a]ll communications
between [Ms. McIntosh] and the Board are protected by the attorney-client privilege”
(McIntosh Aff. at ¶ 3, Mullins Aff. at ¶ 2, 2.b.) However, a general assertion of privilege
does not meet the burden of proving the elements of attorney-client privilege. Rather,
          The claim of privilege must be made question-by-question and document-
          by-document.
          Factual showing needed to demonstrate that a communications [sic]
          is privileged. Conclusory descriptions of documents in a privilege log are
          insufficient to meet the producing party’s burden of establishing that the
          document was an attorney-client communication. In re Search Warrant
          Executed at Law Offices of Stephen Garea, 1999 U.S. App. LEXIS 3861,
          1999 WL 137499, *1-*2 (6th Cir. March 5, 1999). The party asserting
          privilege “must make a minimal showing that the communication involved
          legal matters. This showing is not onerous and may be satisfied by as little
          as a statement in the privilege log explaining the nature of the legal issue
          for which advice was sought.” Id. That showing “must provide the
          reviewing court with enough information for it to make a determination that
          the document in question was, in fact, a confidential communication
          involving legal advice.” 1999 U.S. App. LEXIS 3861, [WL] *2.

Williams v. Duke Energy Corp., S.D. Ohio No. 1:08-CV-00046, 2014 U.S. Dist. LEXIS
109835, *14-15 (Aug. 8, 2014). See Williamson v. Recovery Ltd. P’ship., S.D. Ohio
No. 2:06-CV-292, 2016 U.S. Dist. LEXIS 125640, *8-10 (Sept. 15, 2016) (proponent
made only conclusory statements, rather than an actual showing, that the attorney-client
privilege applied to the subpoenaed documents).3 Neither the pleadings nor the
affidavits identify what particular content is confidential, or why. Neither the pleadings
nor the affidavits identify the nature of any legal issue upon which legal advice was
sought or provided. I find that Chillicothe CS fails to meet its burden to support, or


         3 There is no material difference between Ohio's attorney-client privilege and the federal attorney-

client privilege. Guy v. United Healthcare Corp., 154 F.R.D. 172, 177 (S.D. Ohio 1993), fn.3; Inhalation
Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., S.D. Ohio No. 2:07-CV-116, 2012 U.S. Dist. LEXIS
121830 (August 28, 2012).
Case No. 2018-00950PQ                       -24-         REPORT AND RECOMMENDATION

specifically assert, that this letter was a communication pertaining to an attorney’s legal
advice.
       {¶49} Review of Exh. 3 in camera confirms the absence of privileged content.
The October 13, 2017 letter merely identifies the general title of the matter being
handled, notifies the school board that Liberty Mutual had retained the author to
represent the board in that matter, gives contact information and communication
preferences, and copies a boilerplate Statement of Insured Client’s Rights. I find that the
letter contains only administrative arrangements preceding any legal advice or
communication pertaining to a legal issue. See McCollough v. Johnson, Rodenberg, &
Lauinger, D. Mont No. CV-07-166-BLG-CSO, 2009 U.S. Dist. LEXIS 675, *2 (Jan. 6,
2009); Stern v. Shelley, N.D. Ga No. 3:09-CV-00082-JTC-RVG; 4:08-CV-2753-TLW,
2009 U.S. Dist. LEXIS 130148, *30 (Aug. 31, 2009). The bulk of the letter is a verbatim
copy of the Statement of Insured Client’s Rights from the Ohio Rules of Professional
Conduct, Rule 1.8(f) – a public document. I find that the common-law attorney-client
privilege does not apply to any portion of the letter.
       Conclusion
       {¶50} Accordingly, I recommend that the court find that the claims in this action
are moot as to the records provided to requester prior to the issuance of this report and
recommendation. I further recommend the court issue an order GRANTING requester’s
claims for 1) production of the portions of the Title IX report found not subject to
redaction, 2) a copy of the email dated November 1, 2017 from Jennifer Bergquist to
Jon Saxton, and 3) a copy of the October 13, 2017 letter from McIntosh. I recommend
that costs be assessed equally to the parties.
       {¶51} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state with
particularity
Case No. 2018-00950PQ                     -25-     REPORT AND RECOMMENDATION

all grounds for the objection. A party shall not assign as error on appeal the court’s
adoption of any factual findings or legal conclusions in this report and recommendation
unless a timely objection was filed thereto. R.C. 2743.75(G)(1).




                                          JEFFERY W. CLARK
                                          Special Master


Filed December 26, 2018
Sent to S.C. Reporter 1/11/19
