State Ex Rel. Hogan Lovells U.S., L.L.P. v. Department of Rehabilitation and Correction

2018 Ohio 5133, 123 N.E.3d 928, 156 Ohio St. 3d 56
CourtOhio Supreme Court
DecidedDecember 21, 2018
Docket2016-1776
StatusPublished
Cited by38 cases

This text of 2018 Ohio 5133 (State Ex Rel. Hogan Lovells U.S., L.L.P. v. Department of Rehabilitation and Correction) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Hogan Lovells U.S., L.L.P. v. Department of Rehabilitation and Correction, 2018 Ohio 5133, 123 N.E.3d 928, 156 Ohio St. 3d 56 (Ohio 2018).

Opinions

Kennedy, J.

*57{¶ 1} In this original action, relators, Elizabeth A. Och and Hogan Lovells U.S., L.L.P. (collectively, "Hogan Lovells"), seek *931a writ of mandamus to compel respondent, Ohio Department of Rehabilitation & Correction ("DRC"), to release records related to DRC's acquisition and supply of lethal-injection drugs. We grant the request for a writ of mandamus in part and deny it in part.

Background

{¶ 2} Hogan Lovells U.S., L.L.P., which employs Elizabeth Och, is an international law firm. On March 7, 2016, Hogan Lovells sent correspondence to DRC's public-information e-mail address requesting "copies of public records held by [DRC] relating to current supplies of drugs intended or considered for use in lethal injection executions." The letter detailed 15 specific categories of requested records.

{¶ 3} On March 25, 2016, DRC acknowledged receipt of Hogan Lovells's request. Hogan Lovells alleges it followed up with DRC twice in August, after having heard nothing since DRC's initial acknowledgement in March. DRC admits that it received Och's first follow-up e-mail but "cannot confirm or deny" that it received a second e-mail in August.

{¶ 4} On December 1, 2016, Hogan Lovells filed this original action for a writ of mandamus to compel DRC to release the requested records. Nearly a month later, on December 29, 2016, DRC produced some responsive records but refused to produce several others, claiming an exemption under R.C. 2949.221(B)(1), which prohibits the disclosure of information or records that identify or could reasonably lead to the identification of any person participating in any of several activities related to drugs for lethal injections, including the manufacturing, distribution, or supply of lethal-injection drugs.

{¶ 5} On January 13, 2017, DRC provided a supplemental response and additional records but continued to refuse to produce certain responsive records based on the R.C. 2949.221(B)(1) exemption.

{¶ 6} Attempts at court-sponsored mediation were unsuccessful. On May 31, 2017, we denied DRC's motion to dismiss and granted Hogan Lovells an alternative writ. 149 Ohio St.3d 1416, 2017-Ohio-4038, 75 N.E.3d 234. On June 20, 2017, the parties submitted evidence. On August 3, 2017, DRC filed a motion to strike incorrect statements contained in an affidavit included in its evidence submission. DRC also filed a notice of supplemental authority consisting of a federal magistrate's September 20, 2017 decision denying a request for the *58production of photographs in In re Ohio Execution Protocol Litigation , S.D. Ohio No. 2:11-cv-1016. On December 29, 2017, we sua sponte ordered DRC to file under seal for in camera inspection the documents it asserts are protected under R.C. 2949.221. 151 Ohio St.3d 1480, 2017-Ohio-9291, 88 N.E.3d 962. DRC complied with the court's order on January 8, 2018.

Documents filed under seal

{¶ 7} The sealed documents include four pages of unredacted documents that DRC sent to Hogan Lovells with redactions as part of DRC's first production of records in December 2016. The redacted versions omitted DRC employee-identification numbers and the names of persons copied on DRC internal correspondence regarding execution-team training.

{¶ 8} The remaining sealed documents have not been disclosed to Hogan Lovells and fall into two categories: (1) records corresponding to entries in DRC's Exhibit 7, a September 23, 2015 "log of privileged communications," and (2) records corresponding to entries in DRC's Exhibit 8, a December 7, 2016 "privilege log of withheld records."

{¶ 9} The sealed records identified in the Exhibit 7 log are written requests for confidentiality in accordance with *932R.C. 2949.221(D) from six entities and DRC's responses to those requests.

{¶ 10} The sealed records identified in the Exhibit 8 log include e-mail correspondence, purchase orders, packing slips, invoices, inventories, and requisition forms related to DRC's purchase of execution drugs between July 8, 2016, and December 1, 2016.

Legal Analysis

DRC's motion

{¶ 11} DRC filed an unopposed motion to strike incorrect statements contained in an affidavit that it had submitted as evidence. DRC states that paragraph 8 of Lauren Chalupa's original affidavit inaccurately states that DRC did not withhold or redact any responsive records in its possession before March 7, 2016, the date of Hogan Lovells's request. In fact, "[p]artial redactions were applied to two records provided in response to Relators' [15th category of requested records], which were records in [DRC's] possession prior to March 7, 2016." We grant DRC's request to strike Chalupa's original affidavit and replace it with the corrected affidavit attached to its motion.

Mandamus and the Public Records Act

{¶ 12} Mandamus is an appropriate remedy to compel compliance with Ohio's Public Records Act. See R.C. 149.43(C)(1)(b). We have consistently held that the *59Public Records Act " 'is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.' " Gilbert v. Summit Cty. , 104 Ohio St.3d 660

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Bluebook (online)
2018 Ohio 5133, 123 N.E.3d 928, 156 Ohio St. 3d 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hogan-lovells-us-llp-v-department-of-rehabilitation-ohio-2018.