[Cite as White v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-386.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

John L. White,                                       :

                Requester-Appellant,                 :
                                                                         No. 19AP-85
v.                                                   :            (Ct. of Cl. No. 2018-00762PQ)

Department of Rehabilitation and                     :            (REGULAR CALENDAR)
Correction,
                                                     :
                Respondent-Appellee.
                                                     :


                                           D E C I S I O N

                                   Rendered on February 6, 2020


                On Brief: John L. White, pro se.

                On Brief: Dave Yost, Attorney General, Jared S. Yee, and
                Thomas E. Madden, for respondent-appellee.

                            APPEAL from the Court of Claims of Ohio

BRUNNER, J.
        {¶ 1} Requester-appellant, John L. White, appeals an adverse judgment of the
Court of Claims of Ohio entered on January 10, 2019. The judgment held that respondent-
appellee, Ohio Department of Rehabilitation and Correction ("ODRC"), was not required
to provide White certain records he had requested because those records were exempted
from disclosure under Ohio's Public Records Law. In reaching its decision, the Court of
Claims adopted in part, rejected in part, and modified in part the special master's report
and recommendation of November 26, 2018 (the "R&R"). For the reasons that follow, we
affirm in part and reverse in part the Court of Claims' judgment.
I. FACTS AND PROCEDURAL BACKGROUND
        {¶ 2} The underlying matter arose from a public records dispute between White
and ODRC. White is an attorney and the founder of the Next Step, LLC ("Next Step"), a
No. 19AP-85                                                                               2


company that assists former inmates to find jobs. Next Step formerly had a contract and
multiple memoranda of understanding ("MOU") with ODRC. According to ODRC, White
had notified ODRC of potential litigation over alleged breach of the contract and the MOU
most recently executed between the parties.
       {¶ 3} On April 25, 2018, White sent ODRC a letter making 23 public records
requests. White requested records related to a contract and the MOUs ODRC had executed
with Next Step during the period of 2011 to 2018. Six days later, on May 1, 2018, White
commenced the underlying action by filing a complaint in the Court of Claims pursuant to
R.C. 2743.75, alleging a denial of access to public records in violation of R.C. 149.43(B).
       {¶ 4} The matter was assigned to a special master, who ordered mediation in
accordance with R.C. 2743.75. During the ongoing mediation process, ODRC provided
White with nearly 6,000 pages of responsive records, with explanations and legal authority
for a few dozen pages that contained redactions based on attorney-client privilege.
Mediation failed to resolve all the parties' disputes and the matter returned to the special
master for resolution.
       {¶ 5} On August 10, 2018, ODRC filed a motion to dismiss, or in the alternative, a
motion for summary judgment, stating that all but one of White's records requests had been
withdrawn or resolved during mediation. ODRC's motion stated in part as follows:
              The only reason mediation in this matter failed to successfully
              resolve all disputed claims between the parties, is [White's]
              claims that the assertions of [ODRC's] attorneys of attorney-
              client communications and attorney work product are not
              accurate. Based on the documents as they were so disclosed, it
              is readily and clearly apparent they are protected from
              disclosure, as asserted by [ODRC's] attorneys. Accordingly,
              [ODRC] respectfully requests this Court to dismiss [White's]
              complaint.

(Aug. 10, 2018 ODRC's Mot. to Dismiss or in the Alternative Mot. for Summ. Jgmt. at 5.)
Attached to ODRC's motion were the affidavit of Stephen Young, an ODRC in-house
counsel, and some exhibits.
       {¶ 6} On August 30, 2018, White filed a reply in which he acknowledged he "ha[d]
no information that ODRC had failed to provide copies of all existing ODRC records
responsive to his requests apart from the disputed claims of attorney-client or attorney
work product privilege," which he identified. (Aug. 30, 2018 White's Reply to Special
No. 19AP-85                                                                               3


Master's Order at 1.) White moved the special master to conduct an in-camera review of
each disputed redacted document.
       {¶ 7} The special master granted White's request and ordered ODRC to submit the
original, unredacted records under seal with a sur-reply explaining the redactions with
specificity. ODRC complied with the special master's order on September 20, 2018. ODRC
withdrew the assertion of attorney work product privilege but continued to assert attorney-
client privilege, stating the withheld records were exempt from disclosure because they
related directly to the drafting, timing, and legal guidance of the proposed terms of the
MOU and were communications between two ODRC attorneys and their clients, employees
of ODRC.
       {¶ 8} On October 1, 2018, the special master ordered ODRC to file a supplemental
sur-reply regarding the redactions on or before October 17, 2018. The record indicates that
ODRC filed a supplemental sur-reply, but not until October 23, 2018.
       {¶ 9} The special master reviewed in camera the documents ODRC had withheld
and, on November 26, 2018, issued his R&R stating that only two of the claimed exemptions
were subject to attorney-client privilege and all the remaining documents should be
disclosed. Thus, the special master found that "[O]DRC has failed to meet its burden to
prove by clear and convincing evidence that any other material meets all the factors of
common-law attorney client privilege." (Nov. 26, 2018 R&R at 8.) The special master
recommended that the Court of Claims grant White's claim for relief for partial production
of the withheld records and deny White's remaining claims. The R&R contains a table
describing the nature of each disputed document's content and stating whether it was
protected by attorney-client privilege. The special master also recommended that costs be
assessed to White "[b]ecause the claim was filed prematurely, and the vast majority of
request were either withdrawn or satisfied within a reasonable period of time." (R&R at 9.)
       {¶ 10} On December 12, 2018, ODRC filed objections to the R&R pursuant to R.C.
2743.75(F)(2), asserting "that the R&R on attorney-client privilege is contrary to law and
facts and does not consider [ODRC's] Supplemental Sur-Reply ("SS-R")." (Dec. 12, 2018
Objs. at 1.) ODRC asked the Court of Claims to "adopt in part (i.e., 'assessment of court
costs' against [White] and finding two paragraphs 'constitute [attorney-client] legal
opinion') and reject in part, the Special Master's [R&R] based on * * * errors relative to the
No. 19AP-85                                                                                       4


Special Master's findings of fact and conclusions of law, independently review the objected
matters, find * * * records are privileged attorney-client communications, and sustain
[ODRC's] objections to the Special Master's [R&R]. Special Master's recommendation for
full production of the withheld documents except for two paragraphs should not be
adopted." Id.
       {¶ 11} White filed his response to ODRC's objections on December 28, 2018. White
argued that ODRC's objections should be denied because "the correct law was applied and
there is no error on the face of the award." (Dec. 28, 2018 Resp. to Objs. at ¶ 16.) With
respect to the sanction imposed on him by the special master, White stated that he would
pay the ordered sanction "if it is upheld in full," but stated further that the special master
"was incorrect about the timing and history" of his public records request. Id. at ¶ 23. White
conceded, however, that he was partly at fault "for not making clear the history of his [public
records request] and addressing ODRC's repeated mischaracterization of the timing of [his]
initial request for public records under the OPRA law." 1 Id. at ¶ 24.
       {¶ 12} By judgment entry issued January 10, 2019, the Court of Claims found that
the special master had applied the incorrect standard of proof to ODRC's claim that the
records in question were not subject to the OPRA. The Court of Claims states in part:
                Based on the ordinary application of statutory law and case law,
                it therefore follows that under R.C. 2743.75 an allegedly
                aggrieved party is required to show an entitlement to relief by
                clear-and-convincing evidence, while under R.C. 2743.75 a
                party who claims that an exception applies is required to prove
                that the requested records fall squarely within the exception by
                a preponderance of the evidence.

                The special master's application of the standard of proof
                relative to [ODRC's] claim of attorney-client privilege is
                erroneous because the special master applied a clear-and-
                convincing standard of proof, instead of applying a
                preponderance of the evidence standard of proof relative to
                ODRC's claim of an exception to disclosure.

                In State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d
                261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 21, the Ohio Supreme

1 White states in his May 1, 2018 complaint that he had communicated his requests under the Ohio Public

Records Act ("OPRA") by email three times and then via "USPS" (U.S. Mail) on April 25, 2018. He further
states in his complaint that ODRC had not acknowledged receiving the requests, although ODRC had been
asked to do so.
No. 19AP-85                                                                               5


              Court stated: "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 by the legal adviser, (8) unless the protection is
              waived.' Reed v. Baxter (C.A.6. 1998), 134 F.3d 351, 355-356;
              Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28,
              2003-Ohio-3358, 790 N.E.2d 817, ¶ 12. Except under
              circumstances not relevant here, only the client can waive the
              privilege. * * *." * * *.

(Jan. 10, 2019 Decision at 4-5.)
       {¶ 13} The Court of Claims concluded from its review of the disputed records and
ODRC's objections and supplemental sur-reply that "the records are protected by attorney-
client privilege because the communications concern communications by [O]DRC
attorneys that facilitates the rendition of legal services, or advice." Id. at 5. The Court of
Claims cited in support of its conclusion State ex rel. Toledo Blade Co. v. Toledo-Lucas Port
Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 271, and Dunn v. State Farm Fire & Cas. Co.,
927 F.2d 869, 875 (5th Cir.1991). The Court of Claims found well-taken ODRC's contention
that the special master's recommendation relative to attorney-client privilege should not be
adopted.
       {¶ 14} The Court of Claims found that the special master's recommendation to
assess court costs on White constituted a sanction, which was inconsistent with the holding
of Symons v. Eichelberger, 110 Ohio St. 224 (1924), that costs are not to be considered a
penalty. The Court of Claims found, however, "as a matter of equity, that the circumstances
of this case warrant the assessment of court costs against White, because, as the special
master notes, White's claim 'was filed prematurely, and the vast majority of requests were
either withdrawn or satisfied within a reasonable period of time.' (R&R, 9.)" (Jan. 10, 2019
Decision at 6.)
       {¶ 15} The Court of Claims sustained ODRC's objections, and adopted in part,
rejected in part, and modified in part the special master's R&R. The Court of Claims
adopted the R&R as modified and did not adopt the special master's recommendation to
grant White's claim for relief.
       {¶ 16} White now appeals the judgment of the Court of Claim.
No. 19AP-85                                                                           6


II. ASSIGNMENTS OF ERRORS
      {¶ 17} White presents two assignments of error for our review:
              1. Requester/appellant contends that the trial judge below
              incorrectly modified the Report and Recommendation
              ("R&R") of Special Master ("SM") Jeffrey W. Clark, (R., #34),
              the result of which error was to permit the respondent/appellee
              ("[O]DRC") to withhold public records subject to the Ohio
              Public Records Act, R.C. 149.43, et seq. The specific error was
              in modifying the SM's R&R to apply the incorrect standard of
              proof to the [O]DRC's efforts to utilize one of the enumerated
              exceptions to the Ohio Public Records [A]ct, the common law
              attorney-client privilege. (R, #46)

              2. The trial court incorrectly and unfairly assessed the costs of
              this public records request against requester/appellant as a
              matter of equity. (R, #46)

III. LAW AND DISCUSSION
   A. First Assignment of Error
      {¶ 18} White filed his complaint pursuant to R.C. 2743.75, which provides a
statutory procedure as an alternative to a mandamus action to resolve disputes over public
records requests. R.C. 2743.75(A) states:
              In order to provide for an expeditious and economical
              procedure that attempts to resolve disputes alleging a denial of
              access to public records in violation of division (B) of section
              149.43 of the Revised Code, except for a court that hears a
              mandamus action pursuant to that section, the court of claims
              shall be the sole and exclusive authority in this state that
              adjudicates or resolves complaints based on alleged violations
              of that section. The clerk of the court of claims shall designate
              one or more current employees or hire one or more individuals
              to serve as special masters to hear complaints brought under
              this section. All special masters shall have been engaged in the
              practice of law in this state for at least four years and be in good
              standing with the supreme court at the time of designation or
              hiring. The clerk may assign administrative and clerical work
              associated with complaints brought under this section to
              current employees or may hire such additional employees as
              may be necessary to perform such work.

      {¶ 19} White contends the Court of Claims erred in modifying the R&R with respect
to the standard of proof applicable to ODRC's assertion that the records it withheld fell
within a statutory exemption, and thus were not public records. He argues that ODRC was
No. 19AP-85                                                                               7


required to prove by clear and convincing evidence that the records it withheld were
attorney-client privileged, and therefore not records for the purposes of OPRA, R.C. 149.43,
et seq.
          {¶ 20} ODRC's brief observes that White has filed suit against ODRC in a related
case, alleging breach of the MOU "that is the subject matter * * * contained in all of the
redacted attorney-client privileged communications currently at issue in this appeal.
TNSWS, LLC. v. Ohio Department of Rehabilitation and Correction, Court of Claims of
Ohio Case No. 2018-01272JD."            (ODRC Brief at 5.)      ODRC asserts that "[i]t is
uncontroverted that White was seeking pre-litigation discovery through his public records
request." Id. ODRC contends that White "is now attempting to assert, contrary to
established precedent, that the standards of attorney-client privilege in public records
request cases should be lower than that applied for the same information sought through
civil discovery." Id.
          {¶ 21} It is the well-settled law of Ohio that "[e]xceptions 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 records fall squarely within
the exception." State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-
Ohio-1770, paragraph two of the syllabus.
          {¶ 22} ODRC asserts that the requested records are exempt from disclosure because
of the attorney-client privilege exception. It is well-established that the attorney-client
privilege "is one of the oldest recognized privileges for confidential communications." State
ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 19. Modern
courts have affirmed that "the privilege is founded on the premise that confidences shared
in the attorney-client relationship are to remain confidential." Moskovitz v. Mt. Sinai Med.
Ctr., 69 Ohio St.3d 638, 660 (1994). Such affirmations recognize the importance of
permitting "complete freedom of disclosure by a client to his attorney without fear that any
facts so disclosed will be used against him." Leslie at ¶ 20.
          {¶ 23} R.C. 149.43(A)(1)(v) exempts "[r]ecords the release of which is prohibited by
state or federal law" from the definition of "public record." "The attorney-client privilege,
which covers records of communications between attorneys and their government clients
No. 19AP-85                                                                                8


pertaining to the attorneys' legal advice, is a state law prohibiting release of these records."
State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 542 (2000), citing State el rel.
Nix v. Cleveland, 83 Ohio St.3d 379, 383 (1998). "In Ohio, the attorney-client privilege is
governed both by statute, R.C. 2317.02(A), which provides a testimonial privilege, and by
common law, which broadly protects against any dissemination of information obtained in
the confidential attorney-client relationship." State ex rel. Dawson v. Bloom-Carroll Local
School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, ¶ 27, citing State ex rel. Toledo at ¶ 24,
quoting Leslie at ¶ 18.
       {¶ 24} The Supreme Court of Ohio set forth an eight-part test for the attorney-client
privilege in Leslie at ¶ 21, stating:
               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 by the legal adviser, (8) unless the protection is waived."
               Reed v. Baxter (C.A. 6. 1998), 134 F.3d 351, 355-356;
               Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28,
               2003-Oho-3358, 790 N.E.2d 817, ¶ 12. Except under
               circumstances not relevant here, only the client can waiver the
               privilege. * * *

       {¶ 25} Applying the test set forth in Leslie to this matter, the relevant question is
whether the records ODRC withheld provided "legal advice" from ODRC's attorneys to their
clients. In State ex rel. Toledo Blade at ¶ 27-28, the Supreme Court stated:
               The attorney-client privilege "does not require the
               communication to contain purely legal analysis or advice to be
               privileged. Instead, if a communication between a lawyer and
               client would facilitate the rendition of legal services or advice,
               the communication is privileged." Dunn, 927 F.2d at 875
               [Dunn v. State Farm Fire & Cas. Co. (C.A.5, 1991), 927 F.2d
               869]. "The fact that the task performed could have been
               accomplished as easily by a nonlawyer, does not necessarily
               mean that the privilege will not apply." 1 Rice, Attorney-Client
               Privilege in the United States (2d Ed.1999) 67, Section 7:9.

                The applicable test espoused by these authorities does not
               differ much from the test the court set forth for client
               communications to attorneys in Leslie, 105 Ohio St. 3d 261,
               2005 Ohio 1508, 824 N.E.2d 990, at [¶]29: "The [attorney-
               client] privilege applies when legal advice of any kind is sought
No. 19AP-85                                                                              9


              from the legal advisor in that capacity and the client's
              confidential communication relates to that purpose." * * *

       {¶ 26} Having conducted an in camera inspection of the records ODRC withheld,
and applying the Leslie test to these records, we conclude that the many, but not all, of the
records do provide legal advice from ODRC attorneys to their clients. Consequently, White
is not entitled to the withheld records for which ODRC has met its burden of establishing
the applicability of the attorney-client privilege, and thus are not public records. White is
entitled to receive the remaining withheld records for which ODRC did not establish the
applicability of the attorney-client privilege exemption.
       {¶ 27} Having independently considered the record and briefs, inspected the
records at issue, and reviewed the applicable law, we find that the Court of Claims erred in
concluding that all the records ODRC withheld were attorney-client privileged and exempt
under R.C. 149.43.
       {¶ 28} Accordingly, we find that White is entitled to the withheld records that are
not attorney-client privileged, and thus are public records. We deny that part of White's
first objection relating to his contention that ODRC was required to establish the attorney-
client exemption by clear and convincing evidence.
       {¶ 29} White's first assignment of error is sustained in part and overruled in part.

   B. B. Second Assignment of Error
       {¶ 30} In his second assignment of error, White contends that the special master
and the trial judge erred in assessing court costs against him for bringing the underlying
action prematurely; i.e., only five days after mailing the letter containing his 23-record
request.
       {¶ 31} We find that the Court of Claims' decision to assess court costs against White
is supported by the record. Consequently, we will not disturb it.
       {¶ 32} White's second assignment of error is overruled.
IV. CONCLUSION
       {¶ 33} Based on the foregoing reasons, we find that the Court of Claims erred in
concluding that all of the records ODRC withheld were exempt under R.C. 149.43.
Therefore, we sustain White's first assignment of error in part and overrule it in part. We
remand this case to the Court of Claims and return, under seal, the original unredacted
No. 19AP-85                                                                                            10


records and also a photocopy of those records with the records that this Court has
determined constitute or contain advice from ODRC's attorney(s) to it and/or are
confidential communications that are attorney-client privileged redacted.2 We instruct the
Court of Claims to review this Court's redaction of the records and to provide White access
to those records which this Court has identified as not constituting or containing advice
from ODRC's attorney(s) to it and/or are not confidential communications that are
attorney-client privileged.
        {¶ 34} Additionally, we overrule White's second assignments of error.
                                                     Judgment affirmed in part, reversed in part;
                                                             cause remanded with instructions.

                               BEATTY BLUNT, J., concurs.
                        NELSON, J., concurs in part and dissents in part.

NELSON, J., concurring in part and dissenting in part.
        {¶ 35} I would affirm the decision of the Court of Claims in full. Therefore, I join
with the majority here insofar as it upholds the determinations of privilege by the Court of
Claims and affirms the assessment of costs against requester White. But because I think
that the majority's construction and application of the accurately cited, controlling
precedent may be unduly constricted, I respectfully part company with the majority with
regard to the limited materials at issue that it finds not covered by attorney-client privilege
(excepting one email that appears already to have gone to the requester).
        {¶ 36} The majority states in paragraph 25 that "[a]pplying the test set forth in Leslie
to this matter, the relevant question is whether the records ODRC withheld provided 'legal
advice' from ODRC's attorneys to their clients." That puts the question too narrowly, I
think. As the majority recites at paragraph 24, Leslie confirms that attorney-client privilege
extends to " 'communications relating to' " confidential requests for or provision of " 'legal
advice of any kind.' " 2005-Ohio-1508, at ¶ 21 (citations omitted). The scope of the
privilege, that is, extends not only to materials from lawyers providing legal advice to their
clients, but also to communications by clients to their lawyers seeking or in aid of such
advice. That is, as the majority here further quotes the Supreme Court of Ohio, " 'if a


2The records redacted by this Court will be filed as a separate addendum, under seal, to this opinion for the
purpose of protecting the asserted privilege during the time in which further appeals may be pursued.
No. 19AP-85                                                                               11


communication between a lawyer and client would facilitate the rendition of legal services
or advice, the communication is privileged.' " Toledo Blade, 2009-Ohio-1767, at ¶ 27
(citation omitted).
       {¶ 37} Thus I would have thought, for example, that communications (however
mundane) from clients to lawyers with reference to client inquiries often would be
privileged. And I would have thought that a communication from a lawyer with drafting
instructions (however minimal) and requests for information would in the context of this
matter be privileged. As would certain communications between lawyers. And in this
context, too, a direct client communication to a lawyer relating to an expressed need for
legal guidance seems highly likely to be privileged as well.
       {¶ 38} One doesn't automatically make a document privileged, of course, simply by
including a lawyer in a list of those copied, or by having a lawyer pass it along. The purposes
of each communication have to be fully evaluated. Context does matter, however, and the
Court of Claims was appropriately mindful of the need to facilitate the provision of legal
advice in the context of impending litigation.
       {¶ 39} To the (perhaps relatively quite small) degree that the majority decision here
reverses the Court of Claims determinations of privilege, I respectfully dissent. In all other
regards, I concur with the majority decision.
