Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs.

2020 Ohio 4856

• Court: Ohio Court of Claims
• Decided: August 25, 2020
• Docket: 2019-00789PQ
• Status: Published

Opinion

[Cite as Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., 2020-Ohio-4856.]

THE CINCINNATI ENQUIRER, A Case No. 2019-00789PQ DIVISION OF GANNETT GP MEDIA, INC. Special Master Jeff Clark

Requester REPORT AND RECOMMENDATION

v.

HAMILTON COUNTY BOARD OF COMMISSIONERS

Respondent

The Ohio Public Records Act (PRA) {¶1} “Public records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance.” Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 16. “[T]he inherent, fundamental policy of R.C. 149.43 is to promote open government, not restrict it.” State ex. rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 398, 732 N.E.2d 373 (2000) (“Besser II”). Public records inform the significant public interest in the use of their tax money and other public funds. State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St.3d 258, 261-263, 602 N.E.2d 1159 (1992). Therefore, R.C. 149.43 must be construed liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12; Besser II at 405. Request for Communications of Public Officials Regarding Specific Agreements, Including Real Estate Purchases and Leases {¶2} On November 20, 2018, Sharon Coolidge, a reporter for requester Cincinnati Enquirer, made a public records request to the administrator for respondent Hamilton County Board of Commissioners (the Board), as follows: Case No. 2019-00789PQ -2- REPORT AND RECOMMENDATION

Pursuant to the Ohio Open Records Act (Ohio Rev. Code Ann. Sec. 149.43 to 149.44), I am writing to request emails related to the new Bengals agreement that involves the concert venue and purchasing Hilltop Concrete. Specifically, I am writing to request copies of the following emails: Date Range: October 1, 2018 — November 20, 2018 Subject: The CSO Concert Venue at the Banks; and/or Paul Brown Stadium; and/or Hilltop Concrete or any subsidiary thereof Sender: Jeff Alutto and/or Todd Portune, Chris Monzel, Denise Driehaus, John Bruggen, Judi Boyko, Tom Gabelman Recipient: Jeff Alutto and/or Todd Portune, Chris Monzel, Denise Driehaus, John Bruggen, Judi Boyko, Tom Gabelman (Complaint at 3.) Over three months passed. On March 6, 2019, the Board denied the request in its entirety: “After reviewing our files, the only records we located specific to your request are covered by attorney-client privilege and are therefore not subject to release under the Ohio Public Records Act.” (Id. at 9.) After additional correspondence, the Board provided the Enquirer with 275 pages of heavily redacted records, with only email headers visible. The substantive content of each email, letter, press release and other communication was obscured. (Id., Exhibit D.) {¶3} On July 11, 2019, the Enquirer filed a complaint pursuant to 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 September 25, 2019. On October 9, 2019, the Board filed an unredacted copy of the withheld records, under seal. On November 20, 2019, the Enquirer filed a response to the motion to dismiss (Reply). On January 27, 2020, the Board filed a privilege log regarding exemptions claimed for the withheld records. On April 8, 2020, the Board filed a descriptive list of correspondents to the withheld emails. On April 28, 2020, the Enquirer filed a further response. Motion to Dismiss Case No. 2019-00789PQ -3- REPORT AND RECOMMENDATION

{¶4} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10. The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988). A. Failure to Provide Records Promptly {¶5} “The primary duty of a public office when it has received a public-records request is to promptly provide any responsive records within a reasonable amount of time and when a records request is denied, to inform the requester of that denial and provide the reasons for that denial. R.C. 149.43(B)(1) and (3).” State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11. Timeliness is important because “[w]hen records are available for public inspection and copying is often as important as what records are available.” (Emphasis sic.) (Citations omitted.) State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 34. This is often significant for media reporters. Id. at ¶ 45. Whether a public office has complied with its duty to respond within a “reasonable period of time” is evaluated based on the pertinent facts and circumstances of each case. State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 19-20, 26-27. The requester bears the burden of demonstrating that the public office’s response was unreasonably delayed. Cordell at 12. {¶6} The Board asks the court to dismiss the claim that it violated the requirement of R.C. 149.43(B)(1) to provide copies of public records “within a Case No. 2019-00789PQ -4- REPORT AND RECOMMENDATION

reasonable period of time.” However, the Board admits that it did not respond to the request from November 20, 2018 until March 5, 2019. (Response at 3; Complaint, Greiner Aff. – Exh. B.) The only explanation offered is: “The Respondent misplaced the request and completely forgot that it was made.” (Response at 12.) This statement amounts to an admission of negligence rather than support for a legal defense. I find that the absence of any response for three and a half months, without justification, constituted a violation of the timely response requirement in R.C. 149.43(B)(1). Cordell at ¶ 13-14; State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 20-21 (two months without any response constituted unreasonable delay). Moreover, the Board’s initial delay had the follow-on effect of delaying the later partial production of redacted records (on May 17, 2019) far beyond a reasonable period of time. (Response at 3-4.) This constituted a further violation of both R.C. 149.43(B)(1) and (B)(7). {¶7} Public offices are required to organize their offices and employ their staff in such a way as to be able to make records available when requested. R.C. 149.43(B)(2);1 State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 36; State ex rel. Beacon Journal Pub. Co. v. Andrews, 48 Ohio St.2d 283, 289, 2 Ohio Op.3d 434, 358 N.E.2d 565 (1976). The statutory requirement of organization implies capable administrative management of receipt, logging, processing, and response for public records requests. The Board cites no case precedent accepting inadvertence or neglect is a valid defense to an untimely response. The Supreme Court routinely rejects similar excuses for delay such as scarce resources, expense, time involved, or interference with other duties. State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53-54, 689 N.E.2d 25 (1998); Toledo Blade v. Seneca Cty. Bd. of Commrs. at ¶ 36; Beacon Journal v. Andrews at 289. In State ex rel.

1 “To facilitate broader access to public records, a public office or the person responsible for public records shall organize and maintain public records in a manner that they can be made available for inspection or copying in accordance with division (B) of this section.” R.C. 149.43(B)(2). Case No. 2019-00789PQ -5- REPORT AND RECOMMENDATION

Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio- 5133, 123 N.E.3d 928, the respondent alleged “that its failure to respond in a timely manner to the request was inadvertent and unintentional.” Id. at ¶ 31. The Supreme Court declined to allow “inadvertence” to excuse respondent’s violation of its obligation to timely respond. Id. at ¶ 31-33, 43-45. I find that the Board’s delay of more than three months in making any response to the written request was not excused by its own misplacement and forgetfulness. {¶8} The Board further argues as mitigation that when the Enquirer challenged its lengthy initial delay on February 28, 2020, it quickly reviewed the records and advised that the entire request was denied. However, this demonstrated ability to evaluate and deliver a response in six days only undermines the Board’s assertion that three months was a reasonable period of time to respond. See Wadd at 53 (City’s concession of its capabilities undermined the assertion that records were provided timely). Finally, the record evidences that the Board chose, at that time, to redact essentially all content other than header information from the communications – a minimally time-consuming task. Based on these facts and circumstances, I find that the Board failed to provide the requested records, or to inform Coolidge of denial, within a reasonable period of time after the request was made. B. Drafts are Records The Board states that the requested emails “contained draft documents exempt from disclosure.” (Response at 7-9.) However, all documents that a public office uses to document its activities are “records” of the office, even if in preliminary or draft form. See, e.g., Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20; State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 232, 729 N.E.2d 1182 (2000); State ex rel. Post v. Schweikert, 38 Ohio St.3d 170, 172-173, 527 N.E.2d 1230 (1988). Specifically, there is no exemption or defense as “non-record” for draft proposals exchanged in the process of negotiating a contract. State ex rel. Cincinnati Case No. 2019-00789PQ -6- REPORT AND RECOMMENDATION

Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 12-14, 18- 21 (settlement proposal). The Board provides no authority to the contrary, arguing only that it would prefer not to disclose records of its negotiations. The Supreme Court has rejected withholding of public records based solely on a public office’s policy preference. State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Edn., 97 Ohio St.3d 58, 2002 Ohio 5311, P54, 776 N.E.2d 82 at ¶ 21. Accord State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 37. The Board’s responsive draft documents are thus records that must be produced, except to the extent that any portion of a draft is subject to a public record exemption. {¶9} The Board alleges that some drafts have been “discarded or replaced.” By statute, public offices are only required to retain records that are necessary to document the activities of the office. R.C. 149.40. Thus, any drafts that the Board properly disposed of prior to Coolidge’s request need not be produced. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 24, fn. 1. However, this defense is not available for any drafts that were disposed of improperly, e.g., after Coolidge’s request was received. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961. I find the Board has not provided any evidence, or even asserted, that it properly disposed of any responsive drafts that existed at the time of the Enquirer’s request. {¶10} I recommend that the court deny the Board’s motion to dismiss the claim for production of draft documents kept by the Board at the time of the request. C. Scope of Requests {¶11} The Board pleads that it was confused prior to litigation as to whether the Enquirer had agreed to accept documents with all content other than headers redacted, rather than agreeing only to redaction of specific content for which a valid public records exemption was claimed. (Response at 4-5.) The Enquirer attests that it had accepted no such limitation on its request. (Reply, Greiner Aff. at ¶ 6, 8-9.) Case No. 2019-00789PQ -7- REPORT AND RECOMMENDATION

{¶12} The Board stops short of claiming that the documentary response based on this alleged misunderstanding renders the claim for production moot, and to the extent that the Board appears to offer the misunderstanding as grounds for dismissal I recommend that the court deny the motion. D. Assertion of Improperly Ambiguous Request {¶13} The Board states that Coolidge’s request for topical email involving senders Jeff Alutto, “and/or” six other names; and recipients Jeff Alutto, “and/or” the same six names, is vague and ambiguous as to what is meant by sender and recipient. It is unclear whether the request is for emails only between those individuals, or for any emails sent by any one of those individuals, or for any emails received by any one of those individuals. * * * To the extent that the emails are not between the exact list of senders and recipients, the emails are out of scope of the request and are not required to be produced.

(Response at 11-12.) However, a requester need only make a request such that the public office can reasonably identify what public records are being requested. R.C. 149.43(B)(2). Perfection is not required in a public records request, “particularly where, as here, it is evident that the public office was aware of the specific records requested.” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 37. Applying common grammar to the request, Coolidge gave the Board a list of correspondents from among whom she sought email, on a specific subject, over a short period of time. See State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 26. The Board’s alternate readings – that she might be seeking only email with no “extraneous” correspondents, or only those where one of the list was a solo sender or recipient – are not justified by the request’s wording, context, or any other indication that Coolidge was not seeking all topical emails involving those on the list. {¶14} Further, if the Board had found this aspect of the request vague and ambiguous, it was under a mandatory duty to offer Coolidge an opportunity to revise the Case No. 2019-00789PQ -8- REPORT AND RECOMMENDATION

request, after explaining to her how the Board organized and accessed its email records. R.C. 149.43(B)(2). The Board did not advise Coolidge prior to litigation that it found the request vague or ambiguous, or invite revision of the request, and later filed records with the court that included additional correspondents, recognizing that these were potentially responsive to the request. (Respondent’s Sept. 19, 2019 Motion for Extension of Time to Provide Court Ordered Documents at 3.) {¶15} I recommend the court deny the motion to dismiss on the grounds that any of the records submitted under seal were not within the scope of the request. E. Assertion of Attorney-Client Communication Privilege, Attorney Work Product, and Trade Secret Exceptions {¶16} The remainder of the Board’s response asserts public records exceptions based on the attorney-client privilege, attorney work product, and trade secret information. On review, the complaint neither concedes nor demonstrates that the requested documents are subject to these exceptions. Therefore, to the extent the Board intends to assert these as a motion to dismiss, I recommend that the court deny the motion as to these defenses, and determine the claim on the merits. Burdens of Proof {¶17} 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.). {¶18} However, when a public office asserts any exception to the release of records under the Act, the burden of proving the exception rests on the public office. Case No. 2019-00789PQ -9- REPORT AND RECOMMENDATION

State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office, 153 Ohio St.3d 63, 2017- Ohio-8988, 101 N.E.3d 396, ¶ 15. Exceptions to disclosure must be strictly construed against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. Id.; 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). Exceptions Abandoned Where Not Asserted {¶19} The Board makes general assertions that the contents of the withheld records were exempt entirely or in part as attorney-client privileged communication, attorney work product, and/or trade secret information. The special master ordered the Board to file a privilege log detailing the portions of each withheld record to which it asserts each exception applies. To the extent the Board’s privilege log limits application of an exception to specific pages, paragraphs, or information in the withheld records, that exception is no longer asserted against disclosure of the remainder of the withheld content. 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, ¶ 19; State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513, 525, 687 N.E.2d 661 (1997). Attorney-Client Privilege {¶20} “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 the attorney-client privilege bears the burden of showing the applicability of the privilege. State ex rel. Pietrangelo v. Avon Lake, 146 Ohio St.3d Case No. 2019-00789PQ -10- REPORT AND RECOMMENDATION

292, 2016-Ohio-2974, ¶ 9; MA Equip. Leasing I, LLC v. Tilton, 10th Dist. Franklin Nos. 12AP-564 and 12AP-586, 2012-Ohio-4668, ¶ 20-22. To satisfy this burden, the proponent must show that the communication meets all the following conditions: “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.’” (Citations omitted.)

State ex rel. Leslie v. Ohio Housing Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 21. A bare, general assertion that the privilege applies to communications does not meet the proponent’s burden. 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 Case No. 2019-00789PQ -11- REPORT AND RECOMMENDATION

privilege applied to subpoenaed documents).2 A record is not exempt merely because it is received from or sent to a public office’s legal counsel. Better Gov’t Bureau v. McGraw (In re Allen), 106 F.3d 582, 604, (1997). Nor does respondent cite any support for the proposition that non-legal documents, such as press releases, become privileged communications merely because they are reviewed by, or copied to, an attorney. {¶21} The Board summarizes its assertion of attorney-client privilege in this case as follows: The issue underlying this request deals with a very complicated lease negotiation and real property acquisition by the Respondent. Communication between attorneys and the parties related to this negotiation are necessary to move the negotiation forward. While any action taken by the public body must be performed in public, the negotiation, including discussions with attorneys, at times, must be conducted under the privilege. The fact that communications related to legal services occurred between attorney and client, and on behalf of the client to parties who share a common interest is enough to exempt the documents from disclosure.

(Response at 7.) As discussed below, the Board fails to support this assertion with adequate evidence. Evidence That Communication Related to Legal Advice {¶22} In order to elicit evidence regarding the Board’s claim of privilege, the special master issued an order requiring the Board to provide the following detailed information regarding each withheld communication: b. For each separate record submitted under seal, respondent shall:

i. Identify the correspondence by sender, date, and time sent;

2 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. 2019-00789PQ -12- REPORT AND RECOMMENDATION

ii. Identify by paragraph, line, and word, as appropriate, only those portions of the email or attachment that are alleged to meet the definition of attorney-client privileged material;

iii. For each portion so identified, describe the nature of the legal issue for which advice was being sought or provided, or how the communication was otherwise incident to or related to any legal advice;

iv. Support application of the elements of the attorney-client privilege to each identified portion, including by affidavit as appropriate.

(September 13, 2019 Order.) The Board’s resulting privilege log, submitted in final form on January 27, 2020, contains general, conclusory descriptions of withheld emails and attachments, and bare assertions that the content of each email was protected by attorney-client privilege in its entirety. (Privilege Log – see columns titled Privileged Material Location, and Privileged Explanation.) The Board filed supporting affidavits of its counsel on the same date, that contained no greater detail. Neither the affidavits nor the privilege log identifies with specificity what particular content in any withheld document is a confidential attorney-client communication, or why. In most instances, the Board states only that the entire content of the correspondence is a “communication” involving counsel, or a “discussion” of the general topic of “negotiations,” a “press release,” or “talking points,” “announcement of new lease amendment,” “joint statement,” a “draft document describing the negotiations,” “negotiation matrix,” and other publicity, strategic, and tactical, but not legal, matters. These documents do not contain any detailed, specific explanation as to how each communication’s content is related to legal advice. See Pietrangelo at ¶ 11-17. The special master additionally reviewed the withheld documents in camera for any material that might self-evidently meet the definition of attorney-client privileged material. {¶23} In a separate order, the special master invited the Board to explain the identity and role of each correspondent to the withheld communications, including: Case No. 2019-00789PQ -13- REPORT AND RECOMMENDATION

2. The nature of legal representation being provided at the time of the subject correspondence by each person who respondent asserts was giving or obtaining information subject to the attorney-client privilege through the correspondence.

3. The formal basis of the attorney-client relationship for every correspondent who respondent asserts was providing advice or gathering information in the role of a legal counsel to respondent.

(March 25, 2020 Order at 1.) In a list filed on April 8, 2020, the Board provided the following information regarding its outside legal counsel: Nature of Legal Representation Mr. Gabelman, and the law firm of Frost Brown Todd (“FBT”), were engaged to act as outside legal counsel for the Board of County Commissioners for Hamilton County. The particular emphasis of this representation was for the negotiation of agreements pertaining to the redevelopment of the riverfront, including the development of The Banks project along the Ohio River. All correspondence and documentation generated by Mr. Gabelman and/or the FBT attorneys represent attorney- client privileged communications and/or attorney work product which are the subject of specific request in this pending matter. Such request pertains to communications and work product documentation regarding the negotiation of numerous agreements regarding the development of The Banks Project, including the negotiation of numerous agreements relating to the development of a music venue, the acquisition of riverfront property by Hamilton County, as well as lease negotiations between Hamilton County and the Cincinnati Bengals. Such negotiations also pertained to Hamilton County and Cincinnati Bengals development of a funding and financing structure with respect to the acquisition of real property on the Cincinnati riverfront.

Formal Basis for Attorney Client Privilege Mr. Gabelman and the law firm of Frost Brown Todd, were retained as outside legal counsel to assist the Hamilton County Board of County Commissioners and Hamilton County Prosecuting Attorney's Office to develop property on the riverfront known as The Banks, as well as negotiate various agreements with the City of Cincinnati, the Cincinnati Reds, the Cincinnati Bengals, US Bank Arena, the National Underground Railroad Freedom Center, and various developers on The Banks. Case No. 2019-00789PQ -14- REPORT AND RECOMMENDATION

Hamilton County Board of County Commissioners entered into an agreement for such legal counsel services in 1997.

(April 8, 2020 List at 1.) The first paragraph describes Mr. Gabelman’s role as a negotiator of agreements for the Board, and makes a bare assertion that any and all requested communications by Mr. Gabelman or his firm regarding those negotiations are attorney-client privileged communications. The second paragraph states that Mr. Gabelman and his firm were retained as legal counsel to assist the Board in property development and to “negotiate various agreements.” The Board did not provide the terms of Mr. Gabelman’s 1997 agreement for his legal counsel services. Neither paragraph specifies any legal issue for which Mr. Gabelman provided or facilitated legal advice through the withheld communications. {¶24} The description of Assistant Prosecuting Attorney Roger Friedmann’s role is functionally identical to Mr. Gabelman’s: Nature of Legal Representation Mr. Friedmann is an Assistant Prosecuting Attorney for the Hamilton County Prosecutor's Office. Among his various roles, Mr. Friedmann is the lead attorney for the Prosecutor's Office on negotiations relating to property acquisition by Hamilton County, The Banks development and lease negotiations with the Cincinnati Bengals regarding the lease for the development and operation of Paul Brown Stadium, and property acquisition related issues.

Formal Basis for Attorney Client Privilege The Hamilton County Prosecuting Attorney is the statutory Legal Adviser to the Hamilton County Board of County Commissioners.

(Id. at 2.) The description of Mr. Friedmann’s representation is as a negotiator, not a provider of legal advice on any reasonably specified issue. The list of correspondents in fact draws no meaningful distinction between the roles of these attorneys, and of their clients - all described as involved in negotiating agreements on behalf of the Board. {¶25} The affidavits of Messrs. Gabelman and Friedmann filed on January 27, 2020 do not identify any legal issues on which advice was sought or given in the Case No. 2019-00789PQ -15- REPORT AND RECOMMENDATION

withheld communications, referring only to the affiants’ roles as negotiators. (e.g., Friedmann Aff. at ¶ 7, 11-19; Gabelman Aff. at ¶ 7, 9-16.) The bare statements of counsel that they “believed” all their communications were privileged, confidential,3 and not waived (Freidmann Aff. at ¶ 7-8, 11; Gabelman Aff. at ¶ 7-9) is not sufficient, and only highlights the absence of evidence that any legal advice was sought or given in the text of these communications on particular legal issues. {¶26} The evidence shows only that the Board used its attorneys as negotiators, and included or copied them on discussions of contractual terms and meeting scheduling. That evidence, by itself, falls far short of proving that the substantive content of the communications falls squarely under the attorney-client privilege. In contrast, in 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 the respondent contracted with an attorney to identify and investigate the factual and legal issues concerning allegations that its president had committed improper, possibly criminal acts. Id. at ¶ 4, 29. Respondent submitted affidavits of the Port Authority Board Chairman and its attorney. The Supreme Court was provided with the legal issues on which advice was provided, and how that advice was evidenced in resulting documents: Both the port authority and its outside counsel knew that the investigation was replete with various legal issues and consequences that would be better resolved by the port authority's employing its long-time attorney to conduct the investigation and prepare the report. Legal issues included interpretation of Hartung's employment contract, an analysis of ethics law and criminal law, potential tort claims by Hartung and Teigland, and the construction of a confidentiality provision in the settlement agreement

3 Counsel’s assertions that they “made and received these communications in confidence” include no description of control exercised over recipient copies. One counsel admits using his personal email account for some of the communications. Compare Toledo-Lucas County Port Auth. at ¶ 5 (numbered copies of report given to board members in sealed envelopes during executive sessions and were later returned to the law firm. Members were informed that the report was confidential and could not be shown to any third party). The Enquirer disputes the confidentiality of email shared with third parties, including a public relations consultant, but not those limited to Board employees and counsel. Case No. 2019-00789PQ -16- REPORT AND RECOMMENDATION

concerning a previous port authority investigation. Legal analysis related to the facts in the investigation is integrated throughout the report.

(Id. at ¶ 29.) {¶27} The pleadings and affidavits filed in this case by the Hamilton County Board of Commissioners do not present comparable testimony or documentation supporting attorney-client privilege. The special master recognizes that, hypothetically, the text of a communication might not relate on its face to legal advice without additional explanation and context. To that end, as noted above, the Board was invited to submit specific support for its assertion of attorney-client privilege. In response, the Board failed to provide any additional evidence that its attorneys actually rendered legal advice, or that any specific communication reflected the attorneys’ “professional skills and judgment.” Id. at ¶ 27, 31. “[I]f a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.” Id. at ¶ 27. However, almost all the correspondence in this case reflects only the participation of legal counsel in policy, negotiation of terms, scheduling, or other business decisions that do not directly involve their professional services. See Williams v. Duke Energy Corp., S.D.Ohio No. 1:08-CV-00046, 2014 U.S. Dist. LEXIS 109835, *15-16 (Aug. 8, 2014). Communications to a lawyer for business purposes are not privileged. Documents prepared and emailed for review by both legal and nonlegal employees are often held to be not privileged because the communications were not made for the primary purpose of seeking legal advice. North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D. N.C. 1986). Documents whose “primary purpose” was “business negotiations” rather than “legal advice” are not privileged. United States v. Davis, 131 F.R.D. 391, 401 (S.D. N.Y. 1990).

Id. at *8 (see *41-88 for application to case documents including email). See Hinners v. Huron, Ct. of Cl. 2018-00549PQ, 2018-Ohio-3652, ¶ 10 (“[T]he general statement that an attorney was ‘utilized’ ‘to advise’ ‘on matters of real estate acquisition, negotiation Case No. 2019-00789PQ -17- REPORT AND RECOMMENDATION

and development’ falls short of clear proof that the attorney was providing legal advice in any particular correspondence related to those matters.”). Likewise, outlining business matters such as whether a meeting is planned or has occurred does not constitute attorney-client communication. McFarland v. West Congregation of Jehovah’s Witnesses, Lorain, OH, Inc., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 70 (9th Dist.). {¶28} I find that the Board’s assertions of attorney-client privilege are based solely on conclusory descriptions and statements. Neither the affidavits nor the privilege log meets the Board’s minimal burden to identify and explain the nature of any legal issue upon which advice was sought or provided through a given communication. Williams v. Duke Energy Corp. at *14-15. Disclosure of Communication to Non-Essential Third Party {¶29} Separately, the assertion of privilege has been waived for many of the withheld communications. “[T]he attorney-client privilege is destroyed by voluntary disclosure to others of the content of the statement.” State v. Post, 32 Ohio St.3d 380, 385, 513 N.E.2d 754 (1987). Because a client’s voluntary disclosure of confidential communications is inconsistent with an assertion of the privilege, voluntary disclosure of privileged communications to a third party waives a claim of privilege with regard to communications on the same subject matter. Hollingsworth v. Time Warner Cable, 157 Ohio App.3d 539, 2004-Ohio-3130, ¶ 65, 812 N.E.2d 976 (1st Dist.), citing Mid-Am. Nat’l Bank & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App. 3d 481, 599 N.E.2d 699 (6th Dist.1991), and United States v. Skeddle, 989 F.Supp. 905, 908 (N.D.Ohio 1997). See also In re Teleglobe Communications Corp. v. BCE Inc., 493 F.3d 345, 361 (3d Cir.2007) (“Disclosing a communication to a third party unquestionably waives the privilege.”).

MA Equip. Leasing I, LLC v. Tilton, 980 N.E.2d 1072, 2012-Ohio-4668, ¶ 20 (10th Dist.). In addition to communications directly shared, disclosure to a third party waives the claim of privilege with regard to all other communications on the same subject matter. Case No. 2019-00789PQ -18- REPORT AND RECOMMENDATION

Hollingsworth v. Time Warner Cable, 157 Ohio App.3d 539, 2004-Ohio-3130, 812 N.E.2d 976, ¶ 65. The ‘same subject matter’ standard is, however, applied narrowly. Id. {¶30} In determining whether a person to whom a communication was disclosed is a third party or not, the party asserting the privilege bears the burden of proof. MA Equip. Leasing at ¶ 21-22. On review of the evidence submitted I find, first, that certain correspondence included a communications and public relations consultant retained by the Board, Anne C. Sesler (Correspondent List at 5), as a correspondent. The Board provides no explanation as to how Ms. Sesler’s participation was essential to the provision of legal advice. There is no evidence as to how her inclusion in any communication of legal advice was necessary, as opposed to merely convenient. See Foulk v. Upper Arlington, Ct. of Cl. No. 2017-00132PQ, 2017-Ohio-4249, ¶ 20-21, and cases cited therein. I find that the attorney-client privilege either did not attach, or was waived, for those communications in which Ms. Sesler was included as a party correspondent. {¶31} Next, certain withheld records (Bates Nos. 277-381) include as correspondents one or more employees of an entirely separate, private entity, the Cincinnati Bengals organization. The Board asserts that the attorney-client privilege applies to these communications because they involved negotiation of real estate matters on which the Board’s counsel were providing legal advice to the Board. However, under the cases cited above, disclosure of information to a third party waives the privilege, even assuming, arguendo, that the Board had shown its counsel provided it with legal advice on the matter. Indeed, the concept of waiver assumes that there was something to waive. The Board cites no authority to the contrary. {¶32} Finally, internal communications from a client to an attorney, conveying authority to act on the client’s behalf in entering into an agreement, are by their nature not intended to be confidential and are not privileged. The purpose of the privilege is to permit complete freedom of disclosure by a client to his attorney without fear that any facts so disclosed will be Case No. 2019-00789PQ -19- REPORT AND RECOMMENDATION

used against him. Where the communication is not intended to be confidential, it is not within the privilege. Taylor v. Sheldon (1961), 172 Ohio St. 118 [15 O.O.2d 206]; Emley v. Selepchak (1945), 76 Ohio App. 257 [31 O.O. 558]. By its very nature, a communication from a client to his attorney conveying authority to the attorney to act on his behalf as his agent in entering into an agreement with the opposing party, is a communication which is intended to be communicated to the opposing party. Because such a conversation is not intended to be confidential, it is not privileged. See In re Martin (1943), 141 Ohio St. 87, at 104 [25 O.O. 225].

Walsh v. Barcelona Associates, Inc., 16 Ohio App.3d 470, 472, 476 N.E.2d 1090 (10th Dist.1984). Accord Lutz v. Carter, 2nd Dist. Clark No. No. 2660, 1990 Ohio App. LEXIS 4342, *12 (Oct. 3, 1990); Cannell v. Rhodes, 31 Ohio App.3d 183, 186, 509 N.E.2d 963 (8th Dist.1986). The privilege has been waived for such documents. Common Interest {¶33} The Board asserts that the privilege was not waived for correspondence that included counsel and employees of the Cincinnati Bengals organization, because of the “common interest” doctrine. [T]he common interest doctrine operates as an exception to the general rule that disclosure of privileged materials to a third party waives the privilege. This exception typically arises when parties “‘are either represented by the same attorney or are individually represented, but have the same goal in litigation.’” William F. Shea, LLC v. Bonutti Research, Inc., S.D.Ohio No. 2:10-CV-615, 2013 U.S. Dist. LEXIS 48819, *5-6 (Apr. 4, 2013), quoting Cooey v. Strickland, 269 F.R.D. 643, 652 (S.D.Ohio 2010).

Condos. at Stonebridge Owners’ Assn. v. K&D Group, Inc., 8th Dist. Cuyahoga No. 100261, 2014-Ohio-503, ¶ 10-16. Apparently, the so-called “common interest privilege” of the attorney-client privilege is succinctly set forth in McCormick on Evidence (6 Ed.2006) 413-414, Section 91.1:

Another step beyond the joint client situation is the instance where two or more clients, each represented by their own Case No. 2019-00789PQ -20- REPORT AND RECOMMENDATION

lawyers, meet to discuss matters of common interest- commonly called a joint defense agreement or pooled information situation. Such communications among the clients and their lawyers are within the privilege. Although it originated in the context of criminal cases, the doctrine has been applied in civil cases and to plaintiffs in litigation as well as defendants. * * *

State ex rel. Bardwell v. Cordray, 181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 87 (10th Dist.). To fall within the common interest exception, it must be shown that “(1) the communications were made in the course of a joint defense effort; [and] (2) the statements were designed to further the effort * * *.” Travelers Cas. and Sur. Co. v. Excess Ins. Co. Ltd., 197 F.R.D. 601, 606 (S.D.Oh. 2000), quoting In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir.1986). The common interest exception should be construed narrowly. Cigna Ins. Co. v. Cooper Tires and Rubber, Inc., N.D.Ohio No. 3:99CV7397, 2001 WL 640703, *2 (May 24, 2001). Therefore, the exception will only apply where the “disclosures are made in the course of formulating a common legal strategy.” (Internal quotations and citations omitted.) Id.

Buckeye Corrugated, Inc. v. Cincinnati Ins. Co., 9th Dist. Summit No. 26634, 2013- Ohio-3508, ¶ 15. {¶34} On the evidence submitted, I find that the Board’s and the Cincinnati Bengals’ interests were not aligned in these negotiations. The two entities were not jointly pursuing or defending litigation, were not represented by the same attorney, were not formulating a common “legal strategy,” and in the event of dispute over the agreements they entered might instead be opposing parties. The Board was involved in an arm’s-length negotiation with an independent, private entity represented by its own counsel to negotiate their respective costs and other consideration in entering agreements and acquiring property. I find that the Board has provided no support for the proposition that negotiating any relevant agreement constituted a “common interest” so as to preclude waiver of the attorney-client privilege. Case No. 2019-00789PQ -21- REPORT AND RECOMMENDATION

{¶35} I therefore find that the Board waived the attorney-client privilege with respect to all communications and attachments sent to and received from Bengals’ counsel and/or employees in the course of their negotiations. {¶36} On the basis of the evidence before the court, or lack thereof, regarding identification of legal issues, confidentiality, and disclosure to third parties, I conclude that the Board has not shown that the withheld communications fall squarely within the common law attorney-client communication privilege,4 Attorney Work Product {¶37} The Board separately asserts that the withheld material is excepted from disclosure as common law attorney work product. The party seeking protection under the work-product doctrine bears the burden of establishing that the doctrine applies. In re Special Grand Jury Investigation, 2019-Ohio-4014, 145 N.E.3d 1206, ¶ 12 (10th Dist.). 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 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

4 With the few exceptions noted in the table of permitted exemptions, below. Case No. 2019-00789PQ -22- REPORT AND RECOMMENDATION

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-Ohio-4469, 937 N.E.2d 53, ¶ 54-55 (internal citations omitted). Thus, the two elements of common law attorney work-product are: 1) the document must be a product of the respondent’s attorney’s mental processes, and 2) have been made in anticipation of litigation. {¶38} On review of the pleadings, affidavits, privilege log, correspondent list, and materials submitted under seal, I find that a number of the communications involving Board attorneys do not appear to have been drafted by or in consultation with Board counsel so as to reflect the attorney’s mental processes. But more importantly, and dispositive as to all the withheld records, nowhere in its pleadings, affidavits, privilege log, or correspondent list does the Board assert that any of the records were created in anticipation of litigation. To determine whether a document was prepared “in anticipation of litigation,” the court must evaluate “whether the document was created because of a party’s subjective anticipation of litigation, as contrasted with an ordinary business purpose.” (Citation omitted.) In re Special Grand Jury Investigation at ¶ 13. In the few instances where one Board attorney communicated legal advice it was transactional in nature, not in anticipation of litigation. {¶39} Accordingly, I find that the Board has not met its burden to show that any of the withheld records were subject to the common law attorney work product privilege. Ohio Uniform Trade Secrets Act {¶40} A public office’s own trade secret, in its possession, is a record the release of which is prohibited by state or federal law. State ex rel. Luken v. Corp. for Findlay Mkt. of Cincinnati, 135 Ohio St.3d 416, 420, 2015-Ohio-1532, 988 N.E.2d 546, ¶ 17. Case No. 2019-00789PQ -23- REPORT AND RECOMMENDATION

See State ex rel. Perrea v. Cincinnati Pub. Sch., 123 Ohio St.3d. 410, 2009-Ohio-4762, 916 N.E.2d 1049, ¶ 19. An in camera inspection is usually necessary to determine the merits of a trade secret claim. State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 541-542, 721 N.E.2d 1044 (2000) (“Besser I”). The Ohio Uniform Trade Secrets Act defines “trade secret” as: information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:

(1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

(2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. R.C. 1333.61(D). {¶41} “An entity claiming trade secret status bears the burden to identify and demonstrate that the material is included in categories of protected information under the statute and additionally must take some active steps to maintain its secrecy.” Besser II, 89 Ohio St.3d 396, 400, 732 N.E.2d 373 (2000). To meet this burden, the entity must provide more than conclusory statements in affidavits to show which, if any, information is a “trade secret.” Id. at 400-404. Accord Harris v. Belvoir Energy, Inc., 8th Dist. Cuyahoga No. 103460, 2017-Ohio-2851, ¶ 16; Arnos v. MedCorp, Inc., 6th Dist. Lucas No. L-09-1248, 2010-Ohio-1883, ¶ 28. The following factors are used in trade secret analysis: (1) The extent to which the information is known outside the business; (2) the extent to which it is known to those inside the business, i.e., by the employees; (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information; (4) the savings effected and the value to the holder in having the information as against competitors; Case No. 2019-00789PQ -24- REPORT AND RECOMMENDATION

(5) the amount of effort or money expended in obtaining and developing the information; and (6) the amount of time and expense it would take for others to acquire and duplicate the information.

Besser II at 399-400. In support of its burden in this case, the Board asserts that, [t]he trade secret information relates to a complicated lease negotiation and potential real property acquisition. The information is not known outside of the Board, except by those whom the Board is directly dealing with in this negotiation. Only those at the Board who are involved in the negotiation know about this information. And this dissemination to third parties does not invalidate the trade secret nature of the information, as the owner of the trade secret can determine with whom they want to share the trade secret information. State, ex rel. Allright Parking of Cleveland, Inc., v. Cleveland, 63 Ohio St.3d 772, 775 (1992). The Board has taken great steps to guard the secrecy of this information, including withholding it from the Requester and the public at this time. The information, if made public, would cause price increases and competitive disadvantages and would result in a detrimental economic impact to the Board and Hamilton County ratepayers as a whole. The information was obtained through many months of negotiation and work and if disseminated widely would threaten that work. Finally, it is not clear that others could duplicate the work needed to obtain this information.

(Response at 10.) However, standing alone these are merely general, unquantified assertions of the Besser factors. {¶42} To elicit further evidence, the special master ordered the Board to file the unredacted communications under seal, and state with specificity what parts the Board can show are trade secret. In its privilege log, the Board claims that the following pages of the withheld records contain its own trade secrets: 132-133, 135-136, 138-139, 304- 311, 335-342, 347-360, 364-371, and 375-381. The affidavits of Board counsel (April 8, 2020 Friedmann Aff. at ¶ 18-23; Gabelman Aff. at ¶ 18-23) assert generally that the records contain information that meets the trade secret factors, but provide no specifics as to how. Neither do the affidavits of Board counsel establish expertise in the areas of finance and financial models, which are the only categories of information referenced in the privilege log as “trade secret.” I find that the Board provides no more than Case No. 2019-00789PQ -25- REPORT AND RECOMMENDATION

conclusory statements in affidavits to show which, if any, information is a “trade secret.” Besser II at 400-404. Application of Besser Factors (1) The extent to which the information is known outside the business. {¶43} The Board asserts only that “[t]he information is not known outside of the Board, except by those whom the Board is directly dealing with in this negotiation.” (Response at 10.) The Cincinnati Bengals organization and their counsel clearly have direct knowledge of the information contained in Withheld Records p. 304-311, 335-342, 347-360, 364-371, and 375-381. Further, so much of the information as was disclosed to the public as part of the final agreement or was voted on by the Board in an open meeting (Friedmann Aff. at ¶ 14, 26; Gabelman Aff. at ¶ 12, 24) is known outside the office and unequivocally became public record at that time. (2) The extent to which it is known to those inside the business, i.e., by the employees. {¶44} The Board attests that “[o]nly those at the Board who are involved in the negotiation know about this information.” (Response at 10.) The Board provides no more specific evidence addressing access of other Board employees to the information. However, the Enquirer does not challenge this representation. The court may therefore accept the representation of the Board on this factor. (3) The precautions taken by the holder of the trade secret to guard the secrecy of the information. {¶45} While trade secret is not waived by inclusion in an application or proposal, State ex rel. Seballos v. School Emp. Retirement Sys., 70 Ohio St.3d 667, 671, 640 N.E.2d 829 (1994), neither does a negotiating process enable blanket assertion of trade secret. “A business or possessor of a potential trade secret must take some active steps to maintain its secrecy in order to enjoy presumptive trade secret status.” State ex rel. Plain Dealer v. Ohio Dept. of Insurance, 80 Ohio St.3d 513, 525, 687 N.E.2d 661 (1997). “[T]he holder of a trade secret is protected against disclosure or unauthorized Case No. 2019-00789PQ -26- REPORT AND RECOMMENDATION

use of the trade secrets by those to whom it has been confided on the condition that the secret not be disclosed.” (Emphasis added.) R & R Plastics v. F.E. Myers Co., 92 Ohio App.3d 789, 802, 637 N.E.2d 332 (6th Dist.1993). The Board took no discernable steps to guard against disclosure of the withheld information by the Cincinnati Bengals organization, and the Board does not point to any legal restriction on the Bengals organization from disclosing any or all of the information they exchanged.5 {¶46} Likewise, the Board alleges no specific efforts to ensure that its own members, employees, or consultants maintain the secrecy of the information. “There is no presumption that any particular idea imparted to or acquired by an employee is a trade secret unless the possessor takes active steps to maintain its secrecy.” Hoffman- La Roche Inc. v. Yoder, 950 F.Supp. 1348, 1360 (S.D.Ohio 1997), citing Water Management, Inc. v. Stayanchi, 15 Ohio St.3d 83, 85-86, 472 N.E.2d 715 (1984). An entity claiming trade secret protections must demonstrate that it undertook reasonable security measures to protect information known to employees. Hoffman-La Roche at 1361. Such efforts may include written or oral confidentiality agreements, facial marking indicating confidentiality, internal or external controls on physical access to information, and policies for retrieval or collection of disseminated documents. Id. at 1361-1364. There is no evidence that the Board undertook such efforts in this matter. {¶47} Further, a party claiming trade secret protection must take reasonable steps to prevent disclosure by other parties with access to the information. See Jedson Eng., Inc. v. Spirit Constr. Servs., 720 F.Supp.2d 904, 922 (S.D.Ohio 2010) (subcontractor was not entitled to trade secret protection for drawings given to a general contractor where there was no evidence the subcontractor took active steps to maintain the secrecy of its drawings vis-à-vis third parties); R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 273-74 (6th Cir.2010) (software developer did nothing to prevent

5 In any case, “an agreement of confidentiality, standing alone, cannot support a trade secret claim.” State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513, 527, 687 N.E.2d 661 (1997). Case No. 2019-00789PQ -27- REPORT AND RECOMMENDATION

customers from allowing third parties to view its software interface); In re Alternative Energy Rider Contained in the Tariffs of Ohio Edison Co., 153 Ohio St.3d 289, 2018- Ohio-229, 106 N.E.3d 1, ¶ 40-43 (utility company took reasonable steps to maintain secrecy of supplier and bid information where it entered into protective agreements with suppliers and other parties with access to the information). “[A]n owner’s disclosure to potential or actual customers, absent a confidential agreement or understanding, will destroy any protection of that information as a trade secret.” R & R Plastics v. F.E. Myers Co., 92 Ohio App.3d 789, 802, 637 N.E.2d 332 (6th Dist.1993). In this case, the Board provides no evidence that the entity with which it was negotiating agreements, or its public relations consultant Ms. Sesler, agreed or understood that the information now claimed as trade secret was to remain confidential. {¶48} The Board’s bare assertion that it took unspecified “great steps to guard the secrecy of this information, including withholding it from the Requester and the public at this time” (Response at 10), is a conclusory statement with insufficient evidentiary value. Under the circumstances, I find the Board has not shown that it has taken any identified precautions to maintain secrecy of the information. (4) The savings effected and the value to the holder in having the information as against competitors.

{¶49} In In re Emily Opilo and the Morning Call v. Penn. Dept. of Comm. and Econ. Dev., No. AP 2018-0145, 2018 PA O.O.R.D. LEXIS 432, *20-26, a state office released part of its Amazon HQ2 proposal but asserted trade secret for the “incentive proposal” portion. Id. at *20-23. The office claimed that disclosure would harm agency “economic development initiatives to draw business to the Commonwealth by forcing them to negotiate in public.” Id at *23. In rejecting the claim, the Pennsylvania Office of Open Records found the assertions of harm speculative and conclusory, and that “[m]ost importantly, the Department does not adequately address how other persons can obtain economic value from the Incentive Proposal’s disclosure.” (Emphasis sic.) Id. Case No. 2019-00789PQ -28- REPORT AND RECOMMENDATION

The Board here likewise fails to address how other persons would gain an economic benefit from disclosure of the information it claims to be trade secret. {¶50} In general, records that detail strategy, planning, bids and negotiations do not automatically qualify as trade secrets. State ex rel. Plain Dealer v. Ohio Dept. of Insurance, 80 Ohio St.3d 513, 526, 687 N.E.2d 661 (1997). The Board makes no effort to quantify any savings effected, or the value to the Board in having the information as against future competitors. It attests only that [t]he information, if made public, would cause price increases and competitive disadvantages and would result in a detrimental economic impact to the Board and Hamilton County ratepayers as a whole. The information was obtained through many months of negotiation and work and if disseminated widely would threaten that work.

(Id.) With respect to financial models, the Supreme Court found in Besser II, 89 Ohio St.3d 396, 732 N.E.2d 373 (2000) that OSU’s business plan, staffing contract, profit/loss analysis, acquisition goal summaries, working assumptions for operations, notes and research on comparable hospitals, draft asset purchase agreement, and pro forma for acquisition of a hospital were not proven to be trade secret. Id. at 399-406. The Court rejected OSU’s argument that if it entered into future negotiations similar to the failed transaction, opposing parties could use these bid details “to determine OSU’s valuation process, negotiating style, and internal processes for making and receiving offers, and that competitors can use this information even now to attack, undermine, and circumvent OSU’s business strategies,” finding that OSU had provided no factual evidence to support its conclusory statements and arguments. Id. at 401-402. {¶51} Likewise, the Board provides no evidence to show that the financial information it used in this negotiation will have any value in future negotiations. The Board cannot affirm that a future administration will offer identical terms to a different partner, even in the unlikely event that market conditions remain static. See In re Alternative Energy Rider Contained in the Tariffs of Ohio Edison Co., 153 Ohio St.3d Case No. 2019-00789PQ -29- REPORT AND RECOMMENDATION

289, 2018-Ohio-229, 106 N.E.3d 1, ¶ 34, 36 (considering changes in market conditions when evaluating the continuing economic value of information). The Board has provided no factual evidence that its financial information relevant to this negotiation was so unique, compelling, or otherwise valuable that competitors would gain a cognizable economic benefit from their disclosure in the immediate future. At the same time, these negotiations were crafted for an ephemeral situation that the Board does not show will recur. See Plain Dealer, supra. The circumstances of future property negotiations will be different, and the Board has not shown that keeping this particular financial information a secret will benefit the Board at a later date. Besser II at 401-403. See Buduson v. Cleveland, Ct. of Cl. No. 2018-00300PQ, 2019-Ohio-963, ¶ 31-32. Instead of providing clear explanation and evidence, the Board does no more than aver vaguely that if it isn’t allowed to keep this correspondence secret, “bad things” will happen. {¶52} Further, the deal the Board was negotiating has apparently concluded. (Reply at 5, Exh. 2.) Information specific to a completed process generally does not retain independent economic value under the Ohio Uniform Trade Secrets Act, unless the entity claiming trade secret offers specific evidence that the information would still be beneficial to competitors. See Besser II at 403; Plain Dealer, supra; In re Alternative Energy Rider at ¶ 36. The Board has made no such showing. {¶53} Therefore, the Board fails to demonstrate that the financial information in these communications has any significant or persisting value as against the Board’s competitors in future transactions. (5) The amount of effort or money expended in obtaining and developing the information. {¶54} The Board makes no effort to quantify the “amount of effort or money expended in obtaining and developing the information” involved here. The Board states only that “[t]he information was obtained through many months of negotiation and work and if disseminated widely would threaten that work.” (Response at 10.) This statement Case No. 2019-00789PQ -30- REPORT AND RECOMMENDATION

is unquantified, vague, and conclusory. I find the Board has not shown that it expended a significant amount of money or effort in developing the information at issue. (6) The amount of time and expense it would take for others to acquire and duplicate the information. {¶55} The mere fact that obtaining information may take some effort does not make the information a trade secret. Brakefire, Inc. v. Oberveck, 144 Ohio Misc.2d 35, 2007-Ohio-6464, 878 N.E.2d 84, ¶ 33 (C.P.) The Board makes only the ambiguous statement that “it is not clear that others could duplicate the work needed to obtain this information.” (Emphasis added.) (Response at 10.) It makes no attempt to quantify this assertion. Again, both the Board and future negotiating partners will rely on different, updated information for future purchases. I find that the Board fails to adequately demonstrate “the amount of time and expense it would take for others to acquire and duplicate the information” that it lists as trade secret. The Besser Factors Do Not Support a Finding of Trade Secret

{¶56} The Board relies on general and conclusory statements regarding the economic value of keeping the bid information secret from the public rather than factual evidence or expert testimony in support. The Board submitted no evidence of how often it has been or reasonably expects to be presented with circumstances analogous to the negotiation here, and there is no reason to believe that the conditions of future property lease or acquisition would be identical. Review in camera fails to demonstrate that future “competitors” would accomplish any significant savings of time or expense by knowing the particular financial models and other information communicated under the particular circumstances of this negotiation. Respondent has provided no persuasive evidence of how any of the information “derives independent economic value, actual or potential, from not being generally known.” There is no credible evidence that the information withheld would benefit the Board in future transactions. Case No. 2019-00789PQ -31- REPORT AND RECOMMENDATION

{¶57} The Board satisfies neither of the two mandatory requirements for trade secret protection under the Ohio Uniform Trade Secrets Act: 1) by failing to identify efforts to prevent disclosure by other parties, the Board fails to show that it took efforts reasonable under the circumstances to maintain the secrecy of the information; (R.C. 1333.61(D)(2)) and, 2) by producing no evidence of the continuing value of the financial and other information, the Board fails to show that the information derives independent economic value (R.C. 1333.61(D)(1)). Thus, the information is not trade secret, and is not exempt from disclosure under R.C. 149.43. Considering the evidence in light of the Besser factors, I find that the Board has not met its burden to prove that any of the claimed information fits squarely within the trade secret exception. Records Containing Exemptions Must Be Redacted in a Manner That Discloses Non-Exempt Contents

{¶58} In its January 27, 2020 privilege log, the Board claims that every line of substantive text in the withheld records is privileged (compare January 27, 2020 Privilege Log, column titled Privileged Material Location, with the sealed records), rather than conceding that documents can be redacted to obscure only privileged portions. The Board asserts that any communication between an attorney and their client can be withheld in its entirety, and need not be redacted at all. (Response at 6.) This assertion is contrary to statutory and case law. {¶59} The Public Records Act provides that only the information within a record that is exempt may be withheld: If 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). Where specific information in a questionnaire, form or other record is exempt, only the protected information may be redacted. See Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group, 2013-Ohio-5736, 6 N.E.3d 631, ¶ 5, 29-31 (8th Case No. 2019-00789PQ -32- REPORT AND RECOMMENDATION

Dist.), affirmed by Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group, 145 Ohio St.3d 446, 2016-Ohio-556, 50 N.E.3d 499, ¶ 4, 12; State ex rel. Beacon Journal Publ. Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 13. When asserting attorney-client privilege, a public office must redact only the exempt portions of the record, and make available all of the information within the public record that is not exempt.6 State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 19 (affirming the “explicit duty” to do so in R.C. 149.43(B)(1)). Portions of an attorney communication that are 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. Id. at ¶ 15; Plogger v. Myers, 2017-Ohio- 8229, 100 N.E.3d 104, ¶ 9 (8th Dist.). The Supreme Court has consistently required an in camera inspection of records before determining whether they are excepted from disclosure, and “[i]f the court finds that these records contain excepted information, this information must be redacted and any remaining information must be released.” (Emphasis added.) State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio- 199, 985 N.E.2d 467, ¶ 22 (attorney-client privilege), citing State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), paragraph four of the syllabus. Thus, the Board should be ordered consistent with the directions in the table below to disclose all non-privileged portions of the withheld records. Non-Records “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.

6 Unless the exempt portion is “inextricably intertwined” with the remaining exempt material. Although this exception to the rule is not alleged by the Board, see Narciso v. Powell Police Dept., Ct. of Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 8-13 for discussion of redaction vs. “inextricably intertwined.” Case No. 2019-00789PQ -33- REPORT AND RECOMMENDATION

The definition of “record” does not include every piece of paper on which a public officer writes something, or every document received by a public office. State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236, 2010-Ohio-5680, 938 N.E.2d 347, ¶ 13. With regard to personal information contained in a public record, disclosure of information about private citizens is not required when such information “‘reveals little or nothing about an agency’s own conduct’” and “would do nothing to further the purposes of the Act.” 88 Ohio St.3d at 368 and 369, 725 N.E.2d 1144, quoting United States Dept. of Justice v. Reporters Commt. for Freedom of the Press (1989), 489 U.S. 749, 780, 109 S.Ct. 1468, 103 L.Ed.2d 774. State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio- 7117, 781 N.E.2d 180, ¶ 9-13. For example, employee home addresses that do not serve to document the functions, policies, decisions, procedures, operations, or other activities of the office are not a “record” of the office. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 20-41. {¶60} The Board argues that the personal email address of counsel is a non- record. (Friedmann Aff. at ¶ 9-10.) The Enquirer does not dispute this assertion, and there is no evidence that counsel’s personal email address was used for other than administrative convenience. See Dispatch at ¶ 25-26. I find that counsel’s personal email address may be redacted from the withheld records.

Permitted Exemptions in The Withheld Records {¶61} The Board did not meet its burden to establish that any withheld record contained attorney work product, and the table therefore makes no reference to that exemption.

Bates Description of Parties on Email Attorney-Client Privilege Trade Secret Non-Record No. Document correspondence 1-2 Email re wording Thomas Gabelman, No: 1) No showing that No of talking points re Anne Sesler, Jeff wordsmithing of publicity lease amendment Aluotto, Theresa Giglio, talking points regarding lease Roger Friedmann amendments is related to legal Case No. 2019-00789PQ -34- REPORT AND RECOMMENDATION

advice. 2) Ms. Sesler negates confidentiality as an unnecessary third-party public- relations consultant. 3-4 Poster with key Jeff Aluotto, Thomas No: 1) No showing that draft No talking points re Gabelman, Roger publicity talking points lease amendment Friedman, Anne Sesler, regarding lease amendments Theresa Giglio are related to legal advice. 2) Ms. Sesler negates confidentiality as an unnecessary third-party public- relations consultant. 5-7 Email circulating Thomas Gabelman, No: 1) cover emails circulating No proposed joint Todd Portune, Denise and inviting comment on a press statement Driehaus, Chris Monzel, draft joint press statement with reflecting Jeff Aluotto, Rodger Bengals organization are not additional input Friedmann, Anne Sesler, privileged communications. 2) from Bengals Patrick Woodside no evidence provided that content is related to Board legal advice. 3) Ms. Sesler negates confidentiality as an unnecessary third party public relations consultant. 8-9 Attachment- No: 1) a draft joint press No Proposed Joint statement with Bengals press statement organization is not a privileged reflecting input communication. 2) no evidence from Bengals provided that content is related to Board legal advice. 3) Ms. Sesler negates confidentiality as an unnecessary third party to emails to which the draft is attached.

10-11 Email circulating Thomas Gabelman, No: 1) cover emails circulating No proposed joint Todd Portune, Denise and inviting comment on a press statement Driehaus, Chris Monzel, draft joint press statement with reflecting Jeff Aluotto, Rodger Bengals organization are not additional input Friedmann, Anne Sesler, privileged communications. 2) from Bengals Patrick Woodside no evidence provided that content is related to Board legal advice. 3) Ms. Sesler negates confidentiality as an unnecessary third party public relations consultant. 12-13 Proposed Joint No: 1) a draft joint press No press statement statement with Bengals reflecting input organization is not a privileged from Bengals communication. 2) no evidence provided that content is related to Board legal advice. 3) Ms. Sesler negates confidentiality as an unnecessary third party to emails to which the draft is attached. 14-15 Email circulating Thomas Gabelman, No: 1) cover emails circulating No proposed joint Todd Portune, Denise and inviting comment on a press statement Driehaus, Chris Monzel, draft joint press statement with Case No. 2019-00789PQ -35- REPORT AND RECOMMENDATION

reflecting Jeff Aluotto, Rodger Bengals organization are not additional input Friedmann, Anne Sesler, privileged communications. 2) from Bengals Patrick Woodside no evidence provided that content is related to Board legal advice. 3) Ms. Sesler negates confidentiality as an unnecessary third party public relations consultant. 16-19 Proposed Joint No: 1) drafts of joint press No press statement statement with Bengals reflecting input organization are not privileged from Bengals communications. 2) no evidence provided that content is related to Board legal advice. 3) Ms. Sesler negates confidentiality as an unnecessary third party to emails to which the drafts are attached. 20-22 Forwarded No: 1) first cover email No Yes: message from (circulating attached email) is Personal Rodger not privileged. 2) remaining email address Friedmann, emails between Board counsel of atty. communications and Bengals counsel and staff Friedmann is between counsel regarding draft joint press non-record for the Bengals statement are not privileged that may be and counsel for and cannot be made so by redacted Hamilton County communicating them between Board and its counsel. 3) no evidence provided that content is related to Board legal advice. 23-24 Attachment from No: 1) a draft joint press No forwarded statement with Bengals message organization is not a privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) Content that is not privileged cannot be made so by communicating it between attorney and client. 25-26 Email circulating Thomas Gabelman, No: 1) Cover emails No proposed outline Todd Portune, Denise circulating and inviting and memorandum Driehaus, Chris Monzel, comment on attachments are of understanding Jeff Aluotto, Rodger not privileged communications. for the terms of an Friedmann, Margaret agreement Grossman between the Bengals and Hamilton county 27-30 Draft outline of No: 1) draft structural terms of No: 1) No proposed public- partnership is not privileged evidence private partnership communication. 2) no evidence provided that structure attached provided that content is related any content to p. 25-26 email to Board legal advice. 3) draft derives simply reflects negotiation independent position. economic value from not being generally Case No. 2019-00789PQ -36- REPORT AND RECOMMENDATION

known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 31-32 Draft MOU No: 1) draft structural terms of No: 1) No attached to p. 25- partnership is not privileged evidence 26 email communication. 2) no evidence provided that provided that content is related any content to Board legal advice. 3) draft derives simply reflects negotiation independent position. economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 33-34 Attorney seeking Thomas Gabelman, No: 1) cover email circulating No input from county Anne Sesler, Jeff and inviting comment on a consultant about Aluotto, Rodger draft joint press statement with an announcement Friedman Bengals organization is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) Ms. Sesler negates confidentiality as an unnecessary third party public relations consultant. 35-36 Attachment to p. No: 1) a draft joint press No: 1) No 33-34 email statement with Bengals evidence organization is not a privileged provided that communication. 2) no evidence any content provided that content is related derives to Board legal advice. 3) Ms. independent Sesler negates confidentiality economic as an unnecessary third party value from to emails to which the draft is not being attached. generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 37-38 Email in re: an Thomas Gabelman, Jeff No: 1) cover email circulating No announcement Aluotto, Rodger and inviting comment on a Friedmann draft joint press statement with Bengals organization is not privileged communication. 2) no evidence provided that Case No. 2019-00789PQ -37- REPORT AND RECOMMENDATION

content is related to Board legal advice. 39-40 Attachment to p. No: 1) a draft joint press No: 1) No 37-38 email statement with Bengals evidence organization is not a privileged provided that communication. 2) no evidence any content provided that content is related derives to Board legal advice. independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 41-42 Email circulating a Thomas Gabelman, Jeff No: 1) Cover emails No draft negotiation Aluotto, Rodger circulating and inviting matrix Friedmann, Patrick comment on attachments are Woodside not privileged communications. 43-50 Attachment to p. No: 1) draft structural terms of No: 1) No 41-42 email. "Draft partnership is not privileged evidence document communication. 2) no evidence provided that describing the provided that content is related any content negotiation to Board legal advice. derives between Hamilton independent County and economic Bengals" value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 51 Email circulating a Thomas Gabelman, No: 1) Cover email circulating No draft Rodger Friedmann, and inviting comment on Memorandum of Patrick Woodside, Jeff attachment is not privileged Understanding Aluotto communication. 52-53 Attachment to p. Draft MOU No: 1) draft structural terms of No: 1) No 51 email partnership is not privileged evidence communication. 2) no evidence provided that provided that content is related any content to Board legal advice. 3) draft derives simply reflects negotiation independent position. economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations Case No. 2019-00789PQ -38- REPORT AND RECOMMENDATION

concluded in final agreement. 54-58 Attachment to p. Draft outline of proposed No: 1) draft structural terms of No: 1) No 51 email public-private partnership is not privileged evidence partnership structure communication. 2) no evidence provided that provided that content is related any content to Board legal advice. 3) draft derives simply reflects negotiation independent position. economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 59-60 Circulating talking Thomas Gabelman, Jeff No: 1) cover email circulating No point in re County Aluotto, Rodger and inviting comment on a Bengals Friedmann draft joint press statement with Announcement Bengals organization is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 61-62 Attachment to p. No: 1) a draft joint press No 59-60 email statement with Bengals organization is not a privileged communication. 2) no evidence provided that content is related to Board legal advice. 63-64 Circulating draft Thomas Gabelman, Jeff No: 1) Cover email circulating No negotiation matrix Aluotto, Rodger attachment is not privileged Friedmann, Patrick communication. Woodside 65-72 Attachment to p. No: 1) draft structural terms of No: 1) No 63-64 email partnership is not privileged evidence communication. 2) no evidence provided that provided that content is related any content to Board legal advice. derives independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 73-74 Circulating draft Thomas Gabelman, Jeff No: 1) Cover email circulating No outline Aluotto, Rodger attachment is not privileged Friedmann, Patrick communication. Woodside Case No. 2019-00789PQ -39- REPORT AND RECOMMENDATION

75-82 Attachment to p. No: 1) draft structural terms of No: 1) No 73-74 email partnership is not privileged evidence communication. 2) no evidence provided that provided that content is related any content to Board legal advice. derives independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 83 Negotiation points Jeff Aluotto, Roger No: 1) Discussion of purely No: 1) No discussion with Friedmann, and Thomas business terms is not evidence counsel in Gabelman privileged communication. 2) provided that 11/12/18 email no evidence provided that any content content is related to Board derives legal advice. independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 83-86 Forwarded No: 1) email and attached No: 1) No message from draft between Board counsel evidence Bengals counsel and third-party Bengals provided that counsel and staff regarding any content budget is not privileged and derives cannot be made so by independent communicating it between economic Board and its counsel. value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 87 Forwarding draft Jeff Aluotto, Roger No: 1) Discussion of purely No document to other Friedmann, and Joe business terms is not county employees Feldkamp privileged communication. 2) no evidence provided that content is related to Board legal advice. 87-88 Forwarded No: 1) email and attached No Case No. 2019-00789PQ -40- REPORT AND RECOMMENDATION

message from draft between Board counsel Bengals counsel and third-party Bengals counsel and staff regarding lease is not privileged and cannot be made so by communicating it between Board and its counsel. 89-96 Document No: 1) draft structural terms of No: 1) No attached to partnership is not privileged evidence forwarded communication. 2) no evidence provided that message provided that content is related any content to Board legal advice. derives independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 97-98 Forwarding draft Thomas Gabelman, Jeff No: 1) Cover email circulating No outline for review Aluotto, Rodger attachment is not privileged by clients Friedmann, Patrick communication. Woodside 99-106 Attachment to p. No: 1) draft structural terms of No: 1) No 97-98 email partnership is not privileged evidence communication. 2) no evidence provided that provided that content is related any content to Board legal advice. derives independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 107 Forwarding draft Thomas Gabelman, Jeff No: 1) Cover email circulating No outline for review Aluotto, Rodger attachment is not privileged by clients Friedmann, Patrick communication. Woodside 108- Attachment to p. No: 1) draft structural terms of No: 1) No 115 107 email partnership is not privileged evidence communication. 2) no evidence provided that provided that content is related any content to Board legal advice. derives independent economic value from not being generally Case No. 2019-00789PQ -41- REPORT AND RECOMMENDATION

known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 116 Discussing Thomas Gabelman, Jeff No: 1) Discussion of purely No negotiation points Aluotto, Rodger business terms is not Friedmann, Patrick privileged communication. 2) Woodside no evidence provided that content is related to Board legal advice. 116- Forwarded No: 1) email and attached No 118 messages from draft between Board counsel Bengals counsel and third-party Bengals and between counsel and staff regarding counsel for lease is not privileged and Hamilton County cannot be made so by and counsel for communicating it between the Bengals Board and its counsel. 119- Attachment to p. No: 1) draft structural terms of No: 1) No 125 116-118 emails partnership is not privileged evidence communication. 2) no evidence provided that provided that content is related any content to Board legal advice. 3) derives attachment to email involving independent Bengals counsel and staff is economic not privileged and cannot be value from made so by communicating it not being between Board and its generally counsel. known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 126 Message Denise Driehaus, Jeff No: 1) This is not a No forwarding a Aluotto communication between message from attorney and client, there is no another Hamilton attorney in this communication. county employee 2) no evidence provided that content is related to Board legal advice. 126 Forwarded No: 1) This is not a No message between communication between two Hamilton attorney and client, there is no County Employees attorney in this communication. 2) no evidence provided that content is related to Board legal advice. 126- Forwarded No: 1) Discussion between No: 1) No 129 message between Board member and county evidence Hamilton County employee of purely business provided that employees and terms is not privileged any content counsel in re: communication. 2) no evidence derives drafting provided that content is related independent documents to Board legal advice. 3) economic Case No. 2019-00789PQ -42- REPORT AND RECOMMENDATION

counsel is only cc:d. value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 129- Forwarded No: 1) Cover email circulating No 130 message between attachment is not privileged Hamilton County communication. 2) Notice employees and regarding meeting is not counsel in re: privileged communication. drafting documents 131 Email asking Jeff Aluotto, Thomas No: 1) Request to forward attorney to forward Gabelman email is not privileged another email to a communication. 2) no evidence Hamilton county provided that content is related employee to Board legal advice. 131- Email about Thomas Gabelman, Jeff No: 1) Discussion of purely No: 1) No 132 financial aspects Aluotto business terms is not evidence of the deal privileged communication. 2) provided that no evidence provided that any content content is related to Board derives legal advice. independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 132- Email between No: 1) Discussion of purely No: 1) No 133 Hamilton County business terms is not evidence Attorneys privileged communication. 2) provided that no evidence provided that any content content is related to Board derives legal advice. independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 134- Email about Jeff Aluotto, Thomas No: 1) Discussion of purely No: 1) No 136 financial aspects Gabelman, Roger business terms is not evidence Case No. 2019-00789PQ -43- REPORT AND RECOMMENDATION

of the deal Friedmann, Patrick privileged communication. 2) provided that Woodside no evidence provided that any content content is related to Board derives legal advice. independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 137- Discussion of Jeff Aluotto, Thomas No: 1) Discussion of purely No: 1) No 139 financial aspects Gabelman, Roger business terms is not evidence of the deal Friedmann, Patrick privileged communication. 2) provided that Woodside no evidence provided that any content content is related to Board derives legal advice. independent economic value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 140 Discussion about Jeff Aluotto, Joe No: 1) Discussion between No: 1) No negotiation Feldkamp, Roger Board member and county evidence between two Friedmann, Lisa Doerger employee of purely business provided that Hamilton County terms is not privileged any content Employees communication. 2) no evidence derives provided that content is related independent to Board legal advice. 3) economic counsel is only cc:d. value from not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 140- Forwarded email No: 1) Discussion between No: 1) No 142 from Joe Board member and county evidence Feldcamp to Jeff employee of purely business provided that Aluotto terms is not privileged any content communication. 2) no evidence derives provided that content is related independent to Board legal advice. 3) economic counsel is only cc:d. value from not being Case No. 2019-00789PQ -44- REPORT AND RECOMMENDATION

generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 142 Forwarded email No: 1) Cover email circulating No: 1) No Yes: between Hamilton attachment is not privileged evidence Personal County Employees communication. provided that email address and counsel any content of atty. derives Friedmann is independent non-record economic that may be value from redacted not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 143- Continuation of No: 1) First sentence No: 1) No 146 that email regarding meeting is not evidence privileged communication. 2) provided that remainder discussing purely any content business terms is not derives privileged communication. 2) independent no evidence provided that economic content is related to Board value from legal advice. not being generally known. 2) Any benefit of confidentiality expired when negotiations concluded in final agreement. 147 Confirmation of a Jeff Aluotto, Roger No: 1) All three emails No Yes: meeting place Friedmann concern scheduling of meeting, Personal which is not privileged email address communication. of atty. Friedmann is non-record that may be redacted 148- Continuation of No: 1) Discussion of purely No 151 that email business terms is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 152- Negotiation points Joe Feldcamp, Jeff No: 1) Discussion between No 155 Aluotto, Roger Board member and county Case No. 2019-00789PQ -45- REPORT AND RECOMMENDATION

Friedmann, Lisa Doerger employee of purely business terms is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) counsel is only cc:d on Feldkamp email. 156- Attachments to No: 1) draft structural terms of No 165 email, draft partnership is not privileged negotiation matrix communication. 2) no evidence provided that content is related to Board legal advice. 166 Email thread about Jeff Aluotto, Roger Yes: Discussion with Board No Yes: lease negotiations Friedmann, Thomas attorney of legal effect of Personal Gabelman proposed terms. Only the email address message text is privileged of atty. communication, and not the Friedmann is associated header, salutation, non-record signature block, and other that may be metadata. redacted 167- Forward of Jeff Aluotto, Roger No: 1) Discussion of purely No 169 business proposal Friedmann, Thomas business terms is not summary Gabelman privileged communication. 2) no evidence provided that content is related to Board legal advice. 170- Email thread about Jeff Aluotto, Thomas No: 1) Discussion of purely No 173 lease negotiations Gabelman, Roger business terms is not Friedmann, Joe privileged communication. 2) Feldcamp, Lisa Doerger, no evidence provided that John Burggen content is related to Board legal advice. 174- Attachments to No: 1) draft structural terms of No 184 email, draft partnership is not privileged negotiation matrix communication. 2) no evidence provided that content is related to Board legal advice. 185- Email thread about Jeff Aluotto, Thomas Yes: Discussion with Board No 186 effect of lease Gabelman, Roger attorney of legal effect of terms Friedmann, Patrick proposed terms. Only the Woodside message text is privileged communication, and not the associated header, salutation, signature block, and other metadata. 186- Email forwarding Jeff Aluotto, Thomas No: 1) Discussion of purely No 189 proposed revisions Gabelman, Roger business terms is not Friedmann, Patrick privileged communication. 2) Woodside no evidence provided that content is related to Board legal advice. 190- Email thread about Jeff Aluotto, Roger No: 1) Discussion of purely No 191 hiring a consultant Friedmann, Thomas business terms is not Gabelman privileged communication. 2) no evidence provided that content is related to Board legal advice. 192- Email thread about Jeff Aluotto, Thomas Yes, in part: First email is No 195 lease negotiations Gabelman, Roger commissioner inquiry to Board Friedmann, Patrick attorney of legal effect of Case No. 2019-00789PQ -46- REPORT AND RECOMMENDATION

Woodside proposed term. Only the message text is privileged communication, and not the associated header, salutation, signature block, and other metadata. No: 2) Following the first email, discussion of purely business terms is not privileged communication. 3) no evidence provided that content is related to Board legal advice. 196- Email about lease Thomas Gabelman, Jeff No: 1) Discussion of purely No 198 negotiations Aluotto, Roger business terms is not Friedmann, Patrick privileged communication. 2) Woodside no evidence provided that content is related to Board legal advice. 199- Attachments to No: 1) draft structural terms of No 202 email, draft partnership is not privileged negotiation matrix communication. 2) no evidence provided that content is related to Board legal advice. 203- Email about lease Thomas Gabelman, Jeff No: 1) Discussion of purely No 205 negotiations Aluotto, Roger business terms is not Friedmann, Patrick privileged communication. 2) Woodside, Theresa no evidence provided that Giglio content is related to Board legal advice. 206- Attachments to No: 1) draft structural terms of No 216 email, draft partnership is not privileged negotiation matrix communication. 2) no evidence provided that content is related to Board legal advice. 217- Email about lease Thomas Gabelman, Jeff No: 1) Cover email forwarding No 218 negotiations Aluotto, Roger business proposal is not Friedmann, Patrick privileged communication. Woodside 219- Attachments to No: 1) draft structural terms of No 229 email, draft partnership is not privileged negotiation matrix communication. 2) no evidence provided that content is related to Board legal advice. 230 Request for a Thomas Gabelman, Jeff No: 1) request for meeting is No phone call Aluotto, Roger not privileged communication. Friedmann, Patrick Woodside 230- Email about Thomas Gabelman, Jeff No: 1) Cover email forwarding No 231 negotiation Aluotto, Roger business proposal is not Friedmann, Patrick privileged communication. Woodside, Robert Mecklenborg 232- Attachment to No: 1) introductory No 245 email, draft lease communication from Bengals is not a privileged communication. 2) Bengals response to draft structural terms of partnership is not privileged communication. 3) no evidence provided that Case No. 2019-00789PQ -47- REPORT AND RECOMMENDATION

content is related to Board legal advice. 246- Email about Thomas Gabelman, Jeff No: 1) Cover email forwarding No 247 negotiation Aluotto, Roger business proposal is not Friedmann, Patrick privileged communication. Woodside, Robert Mecklenborg 248- Attachment to No: 1) introductory No 260 email, draft lease communication from Bengals is not a privileged communication. 2) Bengals response to draft structural terms of partnership is not privileged communication. 3) no evidence provided that content is related to Board legal advice. 261 Email forwarding Jeff Aluotto, Todd No: 1) Cover email forwarding No message from Portune, Chris Monzel, other email is not privileged Bengals counsel Denise Driehaus, communication. 2) forwarded Victoria Parks, Lanita email from Bengals staff not Hanekamp, Alex Linser, privileged communication. John Bruggen, Judy Boyko, Roger Friedmann 262- Email chain about Theresa Giglio, Thomas No: 1) Cover email forwarding No 263 letter to Bengals Gabelman, Jeff Aluotto, letter to Bengals is not Roger Friedmann privileged communication. 2) no evidence provided that content is related to Board legal advice. 264- Attached letter to No: 1) signed, apparently No 266 Bengals since-delivered letter to Bengals. 267- Email about letter Thomas Gabelman, Jeff No: 1) Cover email forwarding No 268 to Bengals Aluotto, Theresa Giglio, draft letter to Bengals and Roger Friedmann giving instructions for delivery is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 269- Attached letter to No: 1) no evidence provided No 271 Bengals that content is related to Board legal advice. 272- Email about letter Thomas Gabelman, Jeff No: 1) Cover email forwarding No 273 to Bengals Aluotto, Roger draft letter to Bengals and Friedmann, Jennifer discussing execution and Goins copies is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 274- Attached draft No: 1) no evidence provided No 276 letter to Bengals that content is related to Board legal advice. 277 Email to Bengals From: Thomas No: 1) Bengals staff and No counsel with Gabelman To: Bob counsel negate confidentiality attached Giglio Bedinghaus, Stuart as third parties to cover email email and Dornette, Aaron Herzig with attachments. 2) no forwarded Cc: Roger Friedmann, evidence provided that content announcement Jeff Aluotto is related to Board legal Case No. 2019-00789PQ -48- REPORT AND RECOMMENDATION

advice. 3) not a communication between attorney and client. 277- Email attaching From: Theresa Giglio to No: 1) attached to email to No 278 Bengals Thomas Gabelman third party. 2) Mere announcement administrative cover email. 2) no evidence provided that content is related to Board legal advice. 279- Attached No: 1) final joint press No 280 announcement statement with Bengals organization, implicitly approved by vote in public meeting, is not a privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 281 Email about From: Thomas No: 1) Bengals staff and No Bengals Gabelman To: Bob counsel negate confidentiality announcement Bedinghaus, Stuart as third parties to cover email Dornette, Aaron Herzig with attachments. 2) no Cc: Roger Friedmann, evidence provided that content Jeff Aluotto, Patrick is related to Board legal Woodside advice.3) not a communication between attorney and client. 281- Email attaching From: Margaret No: 1) attached to email to 282 Bengals Grossman To: Thomas third party. 2) Mere announcement Gabelman administrative cover email. 2) no evidence provided that content is related to Board legal advice. 283- Attached No: 1) draft joint press No 284 announcement statement with Bengals organization is not a privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 285 Email about From: Thomas No: 1) Bengals staff and No Bengals Gabelman To: Bob counsel negate confidentiality announcement Bedinghaus, Stuart as third parties to cover email Dornette, Aaron Herzig with attachments. 2) no Cc: Roger Friedmann, evidence provided that content Jeff Aluotto is related to Board legal advice.3) not a communication between attorney and client. 285- Email attaching From: Margaret No: 1) attached to email to No 286 Bengals Grossman To: Thomas third party. 2) Mere announcement Gabelman administrative cover email. 2) no evidence provided that content is related to Board legal advice. 287- Attached No: 1) draft joint press No 288 announcement statement with Bengals organization is not a privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 289 Email about From: Thomas No: 1) Bengals staff and No Case No. 2019-00789PQ -49- REPORT AND RECOMMENDATION

Bengals Gabelman To: Bob counsel negate confidentiality announcement Bedinghaus, Stuart as third parties to cover email Dornette, Aaron Herzig with attachments. 2) no Cc: Roger Friedmann, evidence provided that content Jeff Aluotto, Patrick is related to Board legal Woodside advice.3) not a communication between attorney and client. 290- Attached No: 1) draft joint press No 291 announcement statement with Bengals organization is not a privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 292- Email attaching From: Thomas No: 1) Bengals staff and No 293 revised MOU Gabelman To: Stuart counsel negate confidentiality Dornette, Daniel Fausz, as third parties to cover email Aaron Herzig, Bob with attachments. 2) no Bedinghaus Cc: Roger evidence provided that content Friedmann, Jeff Aluotto, is related to Board legal Patrick Woodside advice.3) not a communication between attorney and client. 294- Revised No: 1) draft MOU with Bengals No 295 Memorandum of organization is not a privileged Understanding communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 296- Revised Lease No: 1) draft outline of No 299 Amendment agreement with Bengals organization is not a privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 300- Emails discussing Between: Stuart No: 1) Bengals staff and No 303 terms of lease Dornette, Thomas counsel negate confidentiality Gabelman Cc: Jeff as third parties to emails with Aluotto, Roger attachments. 2) no evidence Friedmann, Patrick provided that content is related Woodside, Bob to Board legal advice. 3) not Bedinghaus, Aaron communications between Herzig attorney and client. 304- Attachment, No: 1) draft structural terms of No 311 negotiation matrix partnership is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 312- Emails regarding Thomas Gabelman, Bob No: 1) Bengals staff and No 323 meeting with Bedinghaus Cc: Stuart counsel negate confidentiality CSMO Dornette, Aaron Herzig, as third parties to emails. 2) Roger Friedmann, Jeff scheduling of meeting is not Aluotto, Patrick privileged communication. 3) Woodside no evidence provided that content is related to Board legal advice. 4) not communications between attorney and client. 324- Emails discussing Thomas Gabelman, Bob No: 1) Bengals staff and No Case No. 2019-00789PQ -50- REPORT AND RECOMMENDATION

328 terms of lease Bedinghaus, Stuart counsel negate confidentiality Dornette, Cc: Aaron as third parties to emails. 2) Herzig, Roger proposed scheduling of Friedmann, Jeff Aluotto, meeting in second email is not Patrick Woodside privileged communication. 3) no evidence provided that content is related to Board legal advice. 4) not communications between attorney and client. 329- Emails discussing Thomas Gabelman, No: 1) Bengals staff and No 334 terms of lease Stuart Dornette Cc: Jeff counsel negate confidentiality Aluotto, Roger as third parties to emails and Friedmann, Patrick attachments. 2) no evidence Woodside, Bob provided that content is related Bedinghaus, Aaron to Board legal advice.3) not Herzig communications between attorney and client. 335- Attachment, No: 1) draft structural terms of No 342 negotiation matrix partnership is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 343- Email chain about Between: Stuart No: 1) Bengals staff and No 346 lease terms Dornette, Thomas counsel negate confidentiality Gabelman Cc: Jeff as third parties to emails and Aluotto, Roger attachments. 2) no evidence Friedmann, Patrick provided that content is related Woodside, Bob to Board legal advice.3) not Bedinghaus, Aaron communications between Herzig attorney and client. 347- Attachment, No: 1) draft structural terms of No 360 negotiation matrix partnership is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 361- Email chain about Between: Thomas No: 1) Bengals staff and No 363 lease terms Gabelman, Stuart counsel negate confidentiality Dornette Cc: Jeff as third parties to emails and Aluotto, Roger attachments. 2) no evidence Friedmann, Patrick provided that content is related Woodside, Bob to Board legal advice.3) not Bedinghaus, Aaron communications between Herzig attorney and client. 364- Attachment, No: 1) draft structural terms of No 371 negotiation matrix partnership is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party. 372- Email chain about Between: Thomas No: 1) Bengals staff and No 274 lease terms Gabelman, Stuart counsel negate confidentiality Dornette Cc: Jeff as third parties to emails and Aluotto, Roger attachments. 2) no evidence Friedmann, Patrick provided that content is related Woodside, Bob to Board legal advice.3) not Case No. 2019-00789PQ -51- REPORT AND RECOMMENDATION

Bedinghaus, Aaron communications between Herzig attorney and client. 375- Attachment, No: 1) draft structural terms of No 381 negotiation matrix partnership is not privileged communication. 2) no evidence provided that content is related to Board legal advice. 3) attached to email to third party.

Conclusion {¶62} Based on the pleadings, affidavits, and documents submitted in this action, I recommend the court order respondent to provide requester with copies of all withheld records other than as noted in the table of permitted exceptions. I further recommend the court find that respondent did not provide copies or any other response within a reasonable period of time in violation of R.C. 149.43(B)(1). I recommend the court order that requester is entitled to recover from respondent the amount of the filing fee of twenty-five dollars and any other costs associated with the action that it has incurred. I recommend costs be assessed to respondent. {¶63} 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).

JEFF CLARK Special Master Filed August 25, 2020 Sent to S.C. Reporter 10/9/20