[Cite as State ex rel. Dunlap v. Smith, 2012-Ohio-4239.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL.,                                :      JUDGES:
SCOTT DUNLAP                                           :
                                                       :      Hon. Patricia A. Delaney, P.J.
                       Relator                         :      Hon. Sheila G. Farmer, J.
                                                       :      Hon. John W. Wise, J.
-vs-                                                   :
                                                       :      Case No. 11-CA-60
CHRIS SMITH AND ROCHELLE                               :
MENNINGEN                                              :
                                                       :
                       Respondents                     :      OPINION



CHARACTER OF PROCEEDING:                                   Petition For Writ of Mandamus


JUDGMENT:                                                  WRIT DENIED

DATE OF JUDGMENT ENTRY:                                    September 12, 2012


APPEARANCES:

For Relator:                                                  For Respondents:

WESLEY T. FORTUNE                                             PAUL MICHAEL LAFAYETTE
Fortune & Associates, LLC                                     Poling/Petrello
421 Hill Road North                                           300 East Broad St. Suite 350
Pickerington, Ohio 43147                                      Columbus, Ohio 43215
                                                              And
                                                              WILLIAM L. LOVELAND
                                                              Loveland & Brosius, LLC
                                                              50 West Broad St. Suite 3300
                                                              Columbus, Ohio 43215
[Cite as State ex rel. Dunlap v. Smith, 2012-Ohio-4239.]


Delaney, J.

        {¶1}     Relator, Scott Dunlap, has filed a complaint for writ of mandamus

requesting this Court issue a writ ordering Respondents to produce certain legal billing

invoices. The named respondents are Chris Smith, the Violet Township Fiscal Officer

and Rochelle Menningen, Violet Township Fiscal Assistant.          The Respondents will

collectively be referred to as “Violet Township.” Respondents have filed an Answer as

well as a Motion for Summary Judgment.

        {¶2}     On May 18, 2011, Relator submitted a public records request for “any and

all invoices from Loveland & Brosius LLC from October 1, 2010 through May 17, 2011

and copies of the office appointment calendars of Bill Yaple and Kelly Sarko for the

same time period.” On May 27, 2011, Relator was given unredacted copies of the

calendars and redacted copies of the invoices. Respondents advised Relator that the

redacted portions of the invoices were protected by the attorney/client privilege.

        {¶3}     A second public records request was made on October 17, 2011. Relator

requested records “regarding the meeting held at Violet Township Trustee Terry

Dunlap’s personal residence on November 17, 2010 . . . I am requesting copies of any

and all agendas, meeting notes/minutes (both hand written and those recorded via a

word processing program), from all parties in attendance, and the stated purpose of the

meeting. I am also requesting a copy of the detail of this meeting from Violet Township

attorney: Loveland & Brosius, LLC.”

        {¶4}     On November 9, 2011, Respondents again advised Relator that the

invoices were protected by the attorney/client privilege. On November 18, 2011,
Fairfield County, Case No. 11-CA-60                                                    3


Respondents advised Relator that no records existed relative to the remainder of the

October 17, 2011 request with the exception of notes taken by Attorney William

Loveland which were also protected by the attorney/client privilege.


                             SUMMARY JUDGMENT STANDARD

      {¶5}    The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75

Ohio St.3d 447, 448, 1996–Ohio–211 explained the standard for summary judgment:

“Civ.R. 56(C) provides that before summary judgment may be granted, it must be

determined that (1) no genuine issue as to any material fact remains to be litigated, (2)

the moving party is entitled to judgment as a matter of law, and (3) it appears from the

evidence that reasonable minds can come to but one conclusion, and viewing such

evidence most strongly in favor of the nonmoving party, that conclusion is adverse to

the party against whom the motion for summary judgment is made. State ex. rel.

Parsons v. Fleming, 68 Ohio St.3d 509, 511 (1994), citing Temple v. Wean United, Inc.,

50 Ohio St.2d 317, 327 (1977).”

                                         MANDAMUS

      {¶6}    “ ‘Mandamus is the appropriate remedy to compel compliance with R.C.

149.43, Ohio's Public Records Act.’ State ex rel. Physicians Commt. for Responsible

Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006–Ohio–903 ¶ 6;

R.C. 149.43(C). The Public Records Act implements the state's policy 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 ¶ 20. ‘Consistent with this policy, we

construe R.C. 149.43 liberally in favor of broad access and resolve any doubt in favor of

disclosure of public records.’ State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008–
Fairfield County, Case No. 11-CA-60                                                       4

Ohio–4788 ¶ 13.” State ex rel. Perrea v. Cincinnati Pub. Schools, 123 Ohio St.3d 410,

2009–Ohio–4762 at ¶ 13.

      {¶7}   The Supreme Court recently addressed a nearly identical public records

mandamus claim where attorney billing invoices were sought from a school board. The

Supreme Court held, “The withheld records are either covered by the attorney-client

privilege or so inextricably intertwined with the privileged materials as to also be exempt

from disclosure. Therefore, the school district properly responded to [the Relator’s]

request for itemized invoices of law firms providing legal services to the district in

matters involving [Relator] and her children by providing her with summaries of the

invoices including the attorney's name, the fee total, and the general matter involved.

No further access to the detailed narratives contained in the itemized billing statements

was warranted.” State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio

St.3d 10, 16, 2011-Ohio-6009.

      {¶8}   Upon review of the record, Respondents in this case provided exactly the

same information as approved by the Supreme Court.

      {¶9}   Relator    suggests   Respondents      are   not   entitled   to   invoke   the

attorney/client privilege because the legal work performed was unlawful.           Further,

Relator appears to suggest the privilege does not apply due to a lack of good faith and

fraud. Relator has provided no evidence of lack of good faith or fraud. Nor has Relator

provided any evidence that the legal work performed by counsel for Respondents was

unlawful. Relator does not even make an argument based upon any known facts of the

existence of fraud, lack of good faith or unlawfulness. Rather, Relator merely states the
Fairfield County, Case No. 11-CA-60                                                      5


existence of these would negate the attorney/client privilege. Relator’s arguments are

devoid of any merit.

      {¶10} Relator argues there is no evidence that Respondent Violet Township has

invoked the attorney/client privilege. This argument is also meritless. The Township

very clearly invoked the attorney/client privilege through their counsel by virtue of

numerous letters on behalf of the Township in response to the public records requests.

       {¶11} Relator also argues the records he received in response to his request

were non-responsive to the request because the records he received did not contain

stamps, notations, and initials. Relator asks us to compare the records he received with

sample duplicate copies which are identical in content with the exception that the

duplicates contain stamps, notations, and initials which appear to be ministerial

notations from the accounts payable department.       Relator requested copies of the

invoices not copies of the accounts payable records. Relator received the exact items

he requested.

       {¶12} Finally, Relator in a supplemental pleading in reply to the motion for

summary judgment attaches an email wherein he states he has received an unredacted

copy of an invoice from a “confidential source.” Because he received an unredacted

copy of one of the invoices, Relator argues Respondents have waived the

attorney/client privilege. Relator offers no evidence that the unredacted invoice was

received from Violet Township.     Rather, Relator simply states that the invoice was

received from a “confidential source.” There is no evidence that the confidential source

has the ability to waive the attorney/client privilege on the part of Violet Township. In

fact, when the Township learned that the unredacted invoice was in Relator’s
Fairfield County, Case No. 11-CA-60                                                6


possession, Respondents requested that the record and all copies be given to

Respondents. There is absolutely no evidence that Violet Township knowingly provided

the document in its unredacted form. There is no evidence that Violet Township waived

the attorney/client privilege. To the contrary, the evidence demonstrates that Violet

Township repeatedly invoked the privilege and has attempted to protect all records

covered by that privilege.

       {¶13} For these reasons and based upon the Supreme Court’s holding in

Dawson, we deny the requested writ of mandamus.

       PETITION FOR WRIT DENIED.

       COSTS TO RELATOR.



By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. SHEILA G. FARMER



                                      HON. JOHN W. WISE
[Cite as State ex rel. Dunlap v. Smith, 2012-Ohio-4239.]


                 IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL.,
SCOTT DUNLAP                                           :
                                                       :
                  Relator                              :
                                                       :
-vs-                                                   :    JUDGMENT ENTRY
                                                       :
CHRIS SMITH AND ROCHELLE                               :
MENNINGEN                                              :
                                                       :    Case No. 11-CA-60
                  Respondents                          :




        For the reasons stated in the Memorandum-Opinion on file, Relator’s

Petition for Writ of Mandamus is hereby denied. Costs taxed to Relator.




                                                           _________________________________
                                                           HON. PATRICIA A. DELANEY


                                                           _________________________________
                                                           HON. SHEILA G. FARMER


                                                           _________________________________
                                                           HON. JOHN W. WISE
