[Cite as State ex rel. Dunlap v. Smith, 2012-Ohio-4239.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., : JUDGES: SCOTT DUNLAP : : Hon. Patricia A. Delaney, P.J. Relator : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : Case No. 11-CA-60 CHRIS SMITH AND ROCHELLE : MENNINGEN : : Respondents : OPINION
CHARACTER OF PROCEEDING: Petition For Writ of Mandamus
JUDGMENT: WRIT DENIED
DATE OF JUDGMENT ENTRY: September 12, 2012
APPEARANCES:
For Relator: For Respondents:
WESLEY T. FORTUNE PAUL MICHAEL LAFAYETTE Fortune & Associates, LLC Poling/Petrello 421 Hill Road North 300 East Broad St. Suite 350 Pickerington, Ohio 43147 Columbus, Ohio 43215 And WILLIAM L. LOVELAND Loveland & Brosius, LLC 50 West Broad St. Suite 3300 Columbus, Ohio 43215 [Cite as State ex rel. Dunlap v. Smith, 2012-Ohio-4239.]
Delaney, J.
{¶1} Relator, Scott Dunlap, has filed a complaint for writ of mandamus
requesting this Court issue a writ ordering Respondents to produce certain legal billing
invoices. The named respondents are Chris Smith, the Violet Township Fiscal Officer
and Rochelle Menningen, Violet Township Fiscal Assistant. The Respondents will
collectively be referred to as “Violet Township.” Respondents have filed an Answer as
well as a Motion for Summary Judgment.
{¶2} On May 18, 2011, Relator submitted a public records request for “any and
all invoices from Loveland & Brosius LLC from October 1, 2010 through May 17, 2011
and copies of the office appointment calendars of Bill Yaple and Kelly Sarko for the
same time period.” On May 27, 2011, Relator was given unredacted copies of the
calendars and redacted copies of the invoices. Respondents advised Relator that the
redacted portions of the invoices were protected by the attorney/client privilege.
{¶3} A second public records request was made on October 17, 2011. Relator
requested records “regarding the meeting held at Violet Township Trustee Terry
Dunlap’s personal residence on November 17, 2010 . . . I am requesting copies of any
and all agendas, meeting notes/minutes (both hand written and those recorded via a
word processing program), from all parties in attendance, and the stated purpose of the
meeting. I am also requesting a copy of the detail of this meeting from Violet Township
attorney: Loveland & Brosius, LLC.”
{¶4} On November 9, 2011, Respondents again advised Relator that the
invoices were protected by the attorney/client privilege. On November 18, 2011, Fairfield County, Case No. 11-CA-60 3
Respondents advised Relator that no records existed relative to the remainder of the
October 17, 2011 request with the exception of notes taken by Attorney William
Loveland which were also protected by the attorney/client privilege.
SUMMARY JUDGMENT STANDARD
{¶5} The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75
Ohio St.3d 447, 448, 1996–Ohio–211 explained the standard for summary judgment:
“Civ.R. 56(C) provides that before summary judgment may be granted, it must be
determined that (1) no genuine issue as to any material fact remains to be litigated, (2)
the moving party is entitled to judgment as a matter of law, and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to
the party against whom the motion for summary judgment is made. State ex. rel.
Parsons v. Fleming, 68 Ohio St.3d 509, 511 (1994), citing Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 327 (1977).”
MANDAMUS
{¶6} “ ‘Mandamus is the appropriate remedy to compel compliance with R.C.
149.43, Ohio's Public Records Act.’ State ex rel. Physicians Commt. for Responsible
Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006–Ohio–903 ¶ 6;
R.C. 149.43(C). The Public Records Act implements the state's policy that ‘open
government serves the public interest and our democratic system.’ State ex rel. Dann v.
Taft, 109 Ohio St.3d 364, 2006–Ohio–1825 ¶ 20. ‘Consistent with this policy, we
construe R.C. 149.43 liberally in favor of broad access and resolve any doubt in favor of
disclosure of public records.’ State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008– Fairfield County, Case No. 11-CA-60 4
Ohio–4788 ¶ 13.” State ex rel. Perrea v. Cincinnati Pub. Schools, 123 Ohio St.3d 410,
2009–Ohio–4762 at ¶ 13.
{¶7} The Supreme Court recently addressed a nearly identical public records
mandamus claim where attorney billing invoices were sought from a school board. The
Supreme Court held, “The withheld records are either covered by the attorney-client
privilege or so inextricably intertwined with the privileged materials as to also be exempt
from disclosure. Therefore, the school district properly responded to [the Relator’s]
request for itemized invoices of law firms providing legal services to the district in
matters involving [Relator] and her children by providing her with summaries of the
invoices including the attorney's name, the fee total, and the general matter involved.
No further access to the detailed narratives contained in the itemized billing statements
was warranted.” State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio
St.3d 10, 16, 2011-Ohio-6009.
{¶8} Upon review of the record, Respondents in this case provided exactly the
same information as approved by the Supreme Court.
{¶9} Relator suggests Respondents are not entitled to invoke the
attorney/client privilege because the legal work performed was unlawful. Further,
Relator appears to suggest the privilege does not apply due to a lack of good faith and
fraud. Relator has provided no evidence of lack of good faith or fraud. Nor has Relator
provided any evidence that the legal work performed by counsel for Respondents was
unlawful. Relator does not even make an argument based upon any known facts of the
existence of fraud, lack of good faith or unlawfulness. Rather, Relator merely states the Fairfield County, Case No. 11-CA-60 5
existence of these would negate the attorney/client privilege. Relator’s arguments are
devoid of any merit.
{¶10} Relator argues there is no evidence that Respondent Violet Township has
invoked the attorney/client privilege. This argument is also meritless. The Township
very clearly invoked the attorney/client privilege through their counsel by virtue of
numerous letters on behalf of the Township in response to the public records requests.
{¶11} Relator also argues the records he received in response to his request
were non-responsive to the request because the records he received did not contain
stamps, notations, and initials. Relator asks us to compare the records he received with
sample duplicate copies which are identical in content with the exception that the
duplicates contain stamps, notations, and initials which appear to be ministerial
notations from the accounts payable department. Relator requested copies of the
invoices not copies of the accounts payable records. Relator received the exact items
he requested.
{¶12} Finally, Relator in a supplemental pleading in reply to the motion for
summary judgment attaches an email wherein he states he has received an unredacted
copy of an invoice from a “confidential source.” Because he received an unredacted
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[Cite as State ex rel. Dunlap v. Smith, 2012-Ohio-4239.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., : JUDGES: SCOTT DUNLAP : : Hon. Patricia A. Delaney, P.J. Relator : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : Case No. 11-CA-60 CHRIS SMITH AND ROCHELLE : MENNINGEN : : Respondents : OPINION
CHARACTER OF PROCEEDING: Petition For Writ of Mandamus
JUDGMENT: WRIT DENIED
DATE OF JUDGMENT ENTRY: September 12, 2012
APPEARANCES:
For Relator: For Respondents:
WESLEY T. FORTUNE PAUL MICHAEL LAFAYETTE Fortune & Associates, LLC Poling/Petrello 421 Hill Road North 300 East Broad St. Suite 350 Pickerington, Ohio 43147 Columbus, Ohio 43215 And WILLIAM L. LOVELAND Loveland & Brosius, LLC 50 West Broad St. Suite 3300 Columbus, Ohio 43215 [Cite as State ex rel. Dunlap v. Smith, 2012-Ohio-4239.]
Delaney, J.
{¶1} Relator, Scott Dunlap, has filed a complaint for writ of mandamus
requesting this Court issue a writ ordering Respondents to produce certain legal billing
invoices. The named respondents are Chris Smith, the Violet Township Fiscal Officer
and Rochelle Menningen, Violet Township Fiscal Assistant. The Respondents will
collectively be referred to as “Violet Township.” Respondents have filed an Answer as
well as a Motion for Summary Judgment.
{¶2} On May 18, 2011, Relator submitted a public records request for “any and
all invoices from Loveland & Brosius LLC from October 1, 2010 through May 17, 2011
and copies of the office appointment calendars of Bill Yaple and Kelly Sarko for the
same time period.” On May 27, 2011, Relator was given unredacted copies of the
calendars and redacted copies of the invoices. Respondents advised Relator that the
redacted portions of the invoices were protected by the attorney/client privilege.
{¶3} A second public records request was made on October 17, 2011. Relator
requested records “regarding the meeting held at Violet Township Trustee Terry
Dunlap’s personal residence on November 17, 2010 . . . I am requesting copies of any
and all agendas, meeting notes/minutes (both hand written and those recorded via a
word processing program), from all parties in attendance, and the stated purpose of the
meeting. I am also requesting a copy of the detail of this meeting from Violet Township
attorney: Loveland & Brosius, LLC.”
{¶4} On November 9, 2011, Respondents again advised Relator that the
invoices were protected by the attorney/client privilege. On November 18, 2011, Fairfield County, Case No. 11-CA-60 3
Respondents advised Relator that no records existed relative to the remainder of the
October 17, 2011 request with the exception of notes taken by Attorney William
Loveland which were also protected by the attorney/client privilege.
SUMMARY JUDGMENT STANDARD
{¶5} The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75
Ohio St.3d 447, 448, 1996–Ohio–211 explained the standard for summary judgment:
“Civ.R. 56(C) provides that before summary judgment may be granted, it must be
determined that (1) no genuine issue as to any material fact remains to be litigated, (2)
the moving party is entitled to judgment as a matter of law, and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to
the party against whom the motion for summary judgment is made. State ex. rel.
Parsons v. Fleming, 68 Ohio St.3d 509, 511 (1994), citing Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 327 (1977).”
MANDAMUS
{¶6} “ ‘Mandamus is the appropriate remedy to compel compliance with R.C.
149.43, Ohio's Public Records Act.’ State ex rel. Physicians Commt. for Responsible
Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006–Ohio–903 ¶ 6;
R.C. 149.43(C). The Public Records Act implements the state's policy that ‘open
government serves the public interest and our democratic system.’ State ex rel. Dann v.
Taft, 109 Ohio St.3d 364, 2006–Ohio–1825 ¶ 20. ‘Consistent with this policy, we
construe R.C. 149.43 liberally in favor of broad access and resolve any doubt in favor of
disclosure of public records.’ State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008– Fairfield County, Case No. 11-CA-60 4
Ohio–4788 ¶ 13.” State ex rel. Perrea v. Cincinnati Pub. Schools, 123 Ohio St.3d 410,
2009–Ohio–4762 at ¶ 13.
{¶7} The Supreme Court recently addressed a nearly identical public records
mandamus claim where attorney billing invoices were sought from a school board. The
Supreme Court held, “The withheld records are either covered by the attorney-client
privilege or so inextricably intertwined with the privileged materials as to also be exempt
from disclosure. Therefore, the school district properly responded to [the Relator’s]
request for itemized invoices of law firms providing legal services to the district in
matters involving [Relator] and her children by providing her with summaries of the
invoices including the attorney's name, the fee total, and the general matter involved.
No further access to the detailed narratives contained in the itemized billing statements
was warranted.” State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio
St.3d 10, 16, 2011-Ohio-6009.
{¶8} Upon review of the record, Respondents in this case provided exactly the
same information as approved by the Supreme Court.
{¶9} Relator suggests Respondents are not entitled to invoke the
attorney/client privilege because the legal work performed was unlawful. Further,
Relator appears to suggest the privilege does not apply due to a lack of good faith and
fraud. Relator has provided no evidence of lack of good faith or fraud. Nor has Relator
provided any evidence that the legal work performed by counsel for Respondents was
unlawful. Relator does not even make an argument based upon any known facts of the
existence of fraud, lack of good faith or unlawfulness. Rather, Relator merely states the Fairfield County, Case No. 11-CA-60 5
existence of these would negate the attorney/client privilege. Relator’s arguments are
devoid of any merit.
{¶10} Relator argues there is no evidence that Respondent Violet Township has
invoked the attorney/client privilege. This argument is also meritless. The Township
very clearly invoked the attorney/client privilege through their counsel by virtue of
numerous letters on behalf of the Township in response to the public records requests.
{¶11} Relator also argues the records he received in response to his request
were non-responsive to the request because the records he received did not contain
stamps, notations, and initials. Relator asks us to compare the records he received with
sample duplicate copies which are identical in content with the exception that the
duplicates contain stamps, notations, and initials which appear to be ministerial
notations from the accounts payable department. Relator requested copies of the
invoices not copies of the accounts payable records. Relator received the exact items
he requested.
{¶12} Finally, Relator in a supplemental pleading in reply to the motion for
summary judgment attaches an email wherein he states he has received an unredacted
copy of an invoice from a “confidential source.” Because he received an unredacted
copy of one of the invoices, Relator argues Respondents have waived the
attorney/client privilege. Relator offers no evidence that the unredacted invoice was
received from Violet Township. Rather, Relator simply states that the invoice was
received from a “confidential source.” There is no evidence that the confidential source
has the ability to waive the attorney/client privilege on the part of Violet Township. In
fact, when the Township learned that the unredacted invoice was in Relator’s Fairfield County, Case No. 11-CA-60 6
possession, Respondents requested that the record and all copies be given to
Respondents. There is absolutely no evidence that Violet Township knowingly provided
the document in its unredacted form. There is no evidence that Violet Township waived
the attorney/client privilege. To the contrary, the evidence demonstrates that Violet
Township repeatedly invoked the privilege and has attempted to protect all records
covered by that privilege.
{¶13} For these reasons and based upon the Supreme Court’s holding in
Dawson, we deny the requested writ of mandamus.
PETITION FOR WRIT DENIED.
COSTS TO RELATOR.
By: Delaney, P.J.
Farmer, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE [Cite as State ex rel. Dunlap v. Smith, 2012-Ohio-4239.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., SCOTT DUNLAP : : Relator : : -vs- : JUDGMENT ENTRY : CHRIS SMITH AND ROCHELLE : MENNINGEN : : Case No. 11-CA-60 Respondents :
For the reasons stated in the Memorandum-Opinion on file, Relator’s
Petition for Writ of Mandamus is hereby denied. Costs taxed to Relator.
_________________________________ HON. PATRICIA A. DELANEY
_________________________________ HON. SHEILA G. FARMER
_________________________________ HON. JOHN W. WISE