[Cite as Recker & Assocs. Co. v. State Dental Bd., 2019-Ohio-3268.]




FRANK R. RECKER &                                      Case No. 2019-00381PQ
ASSOCIATES CO., L.P.A.
                                                       Special Master Jeffery W. Clark
       Requester
                                                       REPORT AND RECOMMENDATION
       v.

OHIO STATE DENTAL BOARD

       Respondent

        {¶1} On March 14, 2018, requester Frank Recker made a public records request
to respondent Ohio State Dental Board (Board) seeking, in part:
        I am also requesting a copy of the consumer survey/study/poll relating to
        ‘dental specialties’ that was commissioned and/or requested by, and
        received by, the Board, and any documents actually requesting or
        commissioning the survey,
(Complaint at 5.) Following release of records in response to related requests, the
Board concluded its response to the above request as follows:
        Records were redacted and/or withheld as trial preparation records,
        attorney-client privileged communications and/or attorney work product,
        based upon R. C. 149.43(A)(1)(g), and R. C. 149.43(A)(1)(v).
(Id. at 8.) Among the records withheld were the questions used in the survey and the
results of the survey. (Reply at 2.)
        {¶2} On March 18, 2019, Recker filed a complaint under R.C. 2743.75 alleging
denial of access to public records in violation of R.C. 149.43(B). Following unsuccessful
mediation, the Board filed a combined response and motion to dismiss (Response) on
May 1, 2019. On May 24, 2019, Recker filed a response to respondent’s motion to
dismiss (Reply). On June 19, 2019, the Board filed additional documents as directed by
the special master’s order of June 5, 2019. On July 12, 2019, the Board filed a motion to
file additional documents under seal. Recker has filed no opposition to this motion,
which is hereby GRANTED.
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       Motion to Dismiss
       {¶3} Although titled as a combined response to the complaint and motion to
dismiss, the Board’s response does not assert any defense listed in Civ.R. 12(B)(1)
through (7). The Board’s sole defense is that the requested survey documents are
exempt from disclosure as trial preparation material and/or attorney work product.
(Response, passim.) The Board does not dispute that the documents exist, or that they
satisfy the definition of a “record” kept by the Board. R.C. 149.011(G). See State ex rel.
Beacon Journal Publg. Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d
180, ¶ 13.
       {¶4} The complaint neither concedes nor demonstrates that the requested
documents are subject to the claimed exemptions. Therefore, to the extent that the title
of the Board’s response asserts a motion to dismiss, I recommend that the court deny
the motion and determine the claim on the merits.
       Burdens of Proof
       {¶5} 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.).
       {¶6} Where 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 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
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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); accord Franklin Cty.
Sheriff’s Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 501, 589 N.E.2d 24
(1992) (“If there remains a question, R.C. 149.43 must be applied.”)
       Exceptions Claimed
       {¶7} The Public Records Act requires a public office to disclose records upon
request, unless an exception applies. State ex rel. Perrea v. Cincinnati Pub. Sch., 123
Ohio St.3d 410, 2009-Ohio-4762, 916 N.E.2d 1049, ¶ 15-16. An exception is a state or
federal law prohibiting or excusing disclosure of items that otherwise meet the definition
of a “record” of the office, including those listed in R.C. 149.43(A)(1).1
       {¶8} R.C. 149.43(A)(1) enumerates both specific exceptions from the definition of
“public record,” including trial preparation records, R.C. 149.43(A)(1)(g), and a catch-all
exception for “[r]ecords the release of which is prohibited by state or federal law.”
R.C. 149.43(A)(1)(v). The Board asserts that the withheld records are exempt in their
entirety as both trial preparation records pursuant to R.C. 149.43(A)(1)(g) and (A)(4),
and common law attorney work product. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385,
91 L.Ed. 451 (1947). These exceptions overlap to the extent that the statutory definition
of trial preparation record expressly includes “the independent thought processes and
personal trial preparation of an attorney.”
       {¶9} The Public Records Act provides that, as used in R.C. 149.43,
      “Trial preparation record” means any record that contains information that
      is specifically compiled in reasonable anticipation of, or in defense of, a
      civil or criminal action or proceeding, including the independent thought
      processes and personal trial preparation of an attorney.
R.C. 149.43(A)(4). This exception must be supported by affirmative evidence:


       1   The terms “exception” and “exemption” are used interchangeably in case law, and in this report.
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      Material cannot be excepted from disclosure simply by an agency’s broad
      assertion that it constitutes trial preparation records. For the trial
      preparation exception to apply, the records must have been “specifically
      compiled in reasonable anticipation” of litigation. R.C. 149.43(A)(4).
Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 502,
589 N.E.2d 24 (1992). The Supreme Court notes that:
      While Ohio’s public records law does not require the record to be compiled
      solely in anticipation of litigation, this court has consistently held that “* * *
      exceptions to disclosure enumerated in R.C. 149.43 are to be construed
      strictly against the custodian of public records and that all doubt should be
      resolved in favor of disclosure.” Lesak, supra, at 4, 9 OBR at 54, 457
      N.E. 2d at 823.
State ex rel. Natl. Broad. Co. v. Cleveland, 38 Ohio St.3d 79, 85, 526 N.E.2d 786
(1988). For example, where a standard questionnaire regarding lead exposure was
routinely used to assist a public office in determining where environmental sampling
should be conducted, the affidavit of the office’s counsel asserting that every completed
questionnaire reporting an elevated lead blood level was immediately handled as a
potential legal claim was held to be insufficient evidence to support the claim that these
documents were “prepared in anticipation of litigation.” 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, ¶ 44; State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous.
Auth., 190 Ohio App.3d 218, 228, 2010-Ohio-3416, 941 N.E.2d 807, ¶ 37 (8th Dist.).
      {¶10} In this case, the Board asserts that it commissioned the survey from which
Recker seeks the questions and results for two purposes; first, for use in the ordinary
course of a Board-initiated process to revise its specialty rules, and, second, for use as
evidence in reasonable anticipation of civil litigation challenging its decisions in this
particular instance. The opening language of the questionnaire states only that the
purpose of the survey is “to better understand what Ohio residents value and expect in
their dental care.” (Respondent’s Exh. C: Survey and Focus Group Questions, under
seal.) See O’Shea cases, supra. However, in addition to the non-litigation purpose
Case No. 2019-00381PQ                       -5-     REPORT AND RECOMMENDATION


specified in the questionnaire, the Board attests to the following through the affidavit of
Executive Director Harry Kamdar:
       3. The Board discussed possible rule changes to its specialty advertising
       rules at its meeting on May 10, 2017. In March of 2017, Attorney Frank
       Recker submitted proposed language to the Board suggesting changes to
       the Board’s specialty advertising rules. Mr. Recker proposed revising the
       Board’s rules to accept the American Board of Dental Specialties
       (“ABDS”) as a recognized credentialing body for dental specialties. The
       Board labeled Mr. Recker’s submission as Option B.

       4. On May 9, 2017, Mr. Recker engaged in email communications with the
       Board’s Chief Legal Counsel at the time, Lyndsay Nash. A copy of the
       string of emails is attached as Exhibit A-1. In the email sent by Mr. Recker,
       he stated, “Since it appears that someone unilaterally altered my proposed
       Option B and deleted the American Board of Dental Specialties, I see no
       reason for my attendance at an apparently ‘rigged’ proceeding tomorrow. I
       have done my very best for the past year to avoid litigation. But, the forces
       against free market competition, maintaining the status quo, and those
       focused on the promotion of self interest (sic) seem to have prevailed,
       even before the discussion began.” The Board’s Chief Legal Counsel
       explained in her response that Mr. Recker was mistaken, and that ABDS
       had not been removed from Option B.

       5. From Mr. Recker’s email, and other interactions with him, it was clear
       that he intended to sue the Board if the Board did not adopt Option B, or
       some other version that recognized ABDS. Mr. Recker has sued the
       Board many times, and has sued several other state dental boards to
       challenge specialty advertising rules in other states, so I did not take his
       statement as an idle threat.

       6. I, along with members of the Board, was aware in 2017 that Mr. Recker
       had sued the Texas State Dental Board, and other state dental boards to
       challenge other boards’ specialty rules. We were also aware of the
       decision of the Fifth Circuit Court of appeals in the case against the Texas
       board.

       7. Under the direction of Board counsel, the Board entered into a contract
       with Measurement Resources Company (“MRC”) to study Ohio
       consumers’ attitudes and understanding about dental specialist training,
       certification, and advertising. The Board entered into a contract with MRC
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        on November 28, 2017. The Board hired MRC to use its expertise to
        design a survey process and survey questions that would provide the
        Board with qualitative and quantitative data to use in defense of civil
        litigation relating to the Board’s proposed specialty rules.

        8. The expenditure of the Board’s funds for the MRC contract would not
        have been approved if a lawsuit was not anticipated. If no lawsuit was
        expected, the Board could have relied on its own expertise, the expertise
        of its committees and subcommittees, and input from licensees,
        professional organizations, and members of the public to revise its
        specialty rules. I am not aware of the Board previously entering into a
        contract with an expert to obtain consumer information to guide the Board
        in how to revise its rules.

(Response, Kamdar Aff. at ¶ 3-8.)
        {¶11} Paragraphs four through six of the affidavit support the Board’s reasonable
anticipation that Recker would commence civil litigation to challenge the Board’s
proposed specialty rules.2 Paragraphs seven and eight are evidence that the choice to
commission a survey by an outside contractor was made specifically in anticipation of
civil litigation. The Board states that it contracted with MRC “to design a survey process
and survey questions that would provide the Board with qualitative and quantitative data
to use in defense of civil litigation relating to the Board’s proposed specialty rules.” (Id.
at ¶ 7.) The Board submitted a June 20, 2017 memorandum from its counsel that
affirms this assertion. (Exh. D at 8-9, under seal.) The Board submitted a June 19, 2019
affidavit of its counsel further affirming this assertion and documenting counsel’s role in
requesting the survey and consulting with MRC. (Exh. E at ¶ 3-5, under seal.) The
Board distinguishes the expenditure for the MRC contract from its past practice of
relying on the expertise of its staff, committees, licensees, professional organizations,
and members of the public to guide revision of its rules, and states that the reason for
this departure was its anticipation of litigation. (Kamdar Aff. at ¶ 8.)

        2   Recker subsequently did file a federal lawsuit challenging the constitutionality of the specialty
rules. (Id. at ¶ 9.)
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       {¶12} In his reply, Recker does not address, or even reference, R.C.
149.43(A)(1)(g) and (A)(4). Instead, Recker responds that the Board has failed to meet
“the burden of showing that the materials should not be discoverable” under the civil
rules governing attorney work product. (Reply at 3.) Recker asserts that the withheld
questions are “fact work product,” which receives lesser protection in discovery. (Id.)
However, and as Recker’s wording affirms, these arguments apply only to discovery
during civil litigation, which is governed by Civ.R. 26. They have no bearing on whether
records are exempt from public records disclosure pursuant to the separate statutory
exception set forth in R.C. 149.43(A)(1)(g) and (A)(4).
       {¶13} I find that while the survey questions and responses were not compiled
solely for the purposes of litigation, the Board presented sufficient evidence that it
specifically compiled this survey in a novel manner, in conscious and reasonable
anticipation of litigation, by contracting with an outside expert instead of through its
usual internal process. Weighing the evidence submitted by the Board against the lack
of evidence from Recker, I find that the Board has met its burden to show that the
requested survey records fall squarely within the definition of “trial preparation record”
as set forth in R.C. 149.43(A)(4).
       {¶14} The Board separately asserts that the withheld material is excepted from
disclosure as common law attorney work product. The Supreme Court of Ohio has
explained work product protection as follows:
               The work-product doctrine emanates from Hickman v. Taylor
       (1947), 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451, in which the
       Supreme Court of the United States recognized that “[p]roper preparation
       of a client’s case demands that [the attorney] assemble information, sift
       what he considers to be the relevant from the irrelevant facts, prepare his
       legal theories and plan his strategy without undue and needless
       interference. * * * This work is reflected, of course, in interviews,
       statements, memoranda, correspondence, briefs, mental impressions,
       personal beliefs, and countless other tangible and intangible ways - aptly
       though roughly termed by the Circuit Court of Appeals in this case as the
       ‘Work product of the lawyer.’ Were such materials open to opposing
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       counsel on mere demand, much of what is now put down in writing would
       remain unwritten. An attorney’s thoughts, heretofore inviolate, would not
       be his own. Inefficiency, unfairness and sharp practices would inevitably
       develop in the giving of legal advice and in the preparation of cases for
       trial. The effect on the legal profession would be demoralizing. And the
       interests of the clients and the cause of justice would be poorly served.”
               Addressing these concerns, the work-product doctrine provides a
       qualified privilege protecting the attorney’s mental processes in
       preparation of litigation, establishing “a zone of privacy in which lawyers
       can analyze and prepare their client’s case free from scrutiny or
       interference by an adversary.” However, as the Supreme Court of the
       United States has explained, “the doctrine is an intensely practical one,
       grounded in the realities of litigation in our adversary system,” and the
       privilege afforded by the work-product doctrine is not absolute.

Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp, 127 Ohio St.3d 161,
2010-0hio-4469, 937 N.E.2d 53, ¶ 54-55 (internal citations omitted).
       {¶15} On review of the pleadings, affidavits, and materials submitted under seal, I
find that, other than the bare assertion that Board counsel listed “subjects” for MRC to
cover in the survey (Exh. E at ¶ 4, under seal), there is insufficient support for the
proposition that the survey questions were drafted by or in consultation with counsel for
the Board so as to reflect the attorney’s mental processes in preparation of litigation.
The evidence does support that counsel advised the Board to enter into a contract with
MRC for the survey. (Kamdar Aff. at ¶ 7; Exh. D at 9, under seal; Exh. E at ¶ 3, under
seal.) Under these facts, I find that the common law attorney work product privilege
does not apply to the withheld records.
       {¶16} I find that the Board has met its burden to show that the requested records
are subject in their entirety to the statutory trial preparation exception, but has not met
that burden with respect to the common law attorney work product privilege. Based on
the finding that the trial preparation exception applies to the withheld records, I find that
Recker has failed to establish that the survey documents are public records subject to
disclosure.
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        Conclusion
        {¶17} Accordingly, I recommend that the court DENY requester’s claim for
production of records. I recommend that costs be assessed to requester.
        {¶18} 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 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 July 5, 2019
Sent to S.C. Reporter 8/15/19
