The Ohio Department of Rehabilitation and Correction (DRC) was entitled to withhold information related to carrying out executions by lethal injection requested by a law firm, but must pay the firm $500 and a yet-to-be determined amount in legal fees for waiting three months to respond, the Ohio Supreme Court ruled today.

A divided Supreme Court determined the 120 pages of public records the department provided to Hogan Lovells, an international law firm, complied with the Ohio Public Records Act. The Court also indicated DRC was justified in withholding four pieces of correspondence written by the department’s general counsel.

In a per curiam opinion, the Court was split on whether the department had to turn over records regarding the training and rehearsals for the planned February 2019 execution of Warren Henness. Gov. Mike DeWine has delayed Henness’ execution date.

After reviewing 210 pages of records submitted to the justices for an in camera inspection, a Court majority ruled DRC properly withheld the execution rehearsal records. The Court’s lead opinion concluded the material was exempt as “records of inmates,” under R.C. 5120.21(F).

Chief Justice Maureen O’Connor and Justice Patrick F. Fischer and Jennifer Brunner joined the per curiam opinion. Justice Michael P. Donnelly concurred in judgment only.

In an opinion concurring in part and dissenting in part, Justice Sharon L. Kennedy wrote that the lead opinion’s interpretation of “records of inmates” contradicts the Court’s own case law and the Ohio Administrative Code. She stated the “potential impact of today’s decision is far-reaching” by finding that any record that in any way relates to an inmate is not a public record.

Justices R. Patrick DeWine and Melody J. Stewart joined Justice Kennedy’s opinion.

Firm Returns for More Records
This is the second time Hogan Lovells has asked the Supreme Court to order DRC to turn over records related to drugs intended to be used or considered for use in lethal injections. In 2018, the Court granted part of the firm’s request, ordering the department to provide redacted copies of four pieces of correspondence that DRC previously withheld from a 2016 records request.

In the December 2018 State ex rel Hogan Lovells U.S. LLP. v. Dept. of Rehab. & Corr. decision, the Court denied other records either because protected information was “inextricably intertwined” with the remainder of the information, or the records had been produced or received after the law firm made the public records request.

In July 2019, Hogan Lovells made another records request to DRC related to plans to carry out executions by lethal injection. The firm emailed DRC a public records request that was similar to the one made in 2016. It sought 16 categories of records that DRC had or may have received since the firm’s 2016 request.

After DRC failed to acknowledge the email for more than three months, the firm sought a writ of mandamus from the Supreme Court to compel DRC to turn over the records.

Four days after the lawsuit was filed, DRC provided 120 pages of documents that fulfilled 14 record types the firm sought, but asserted two specific requests were exempt from the public records act, which is R.C. 149.43.

Firm Contests Right to Withhold Information
Hogan Lovells asked the Court to order DRC turn over correspondence between the department and others regarding “execution protocols, regulations, guidelines, checklists, notes, or other documents that instruct or direct the carrying out of an execution.” While DRC provided a policy document outlining the execution guidelines, it withheld documents and emails produced by DRC’s general counsel, citing exemptions in R.C. 149.43 for records protected by attorney-client privilege or attorney work-product privilege.

The law firm also asked for records related to “training and activities related to execution procedures or protocol,” from Jan. 1, 2019, through July 19, 2019, including “any substances used during the training exercises and including any reports, evaluations, or other documents” produced from the trainings. DRC provided training logs, execution-team training schedules, and other documents. But the department withheld records of training and exercises conducted for the execution of specific inmates. The department argued the records are exempted under R.C. 5120.21(F) because they are “records of inmates.”

Supreme Court Splits on ‘Record’ Definition
The Court ordered all the disputed records to be filed under seal for an in camera inspection. The Court agreed the information generated by DRC’s top lawyer was privileged information that the department could withhold from the firm.

The withheld records related to execution training all pertained to the preparations for the scheduled execution of Henness. The Court’s opinion stated the records can be divided into three parts. The first are reports that document physical and mental-health assessments of Henness and his relocation to different areas of the prison in which he is housed. The second part consists of “activity logs” and “incident briefings.”

The third part are training records similar to those provided to Hogan Lovells, but they document four rehearsals conducted in anticipation of Henness’ execution. Although Henness’ name appears in the documents, they do not appear to provide any information about Henness himself, the opinion explained.

The Court noted that R.C. 5120.21(F) states, “Except as otherwise provided in division (C) of this section, records of inmates committed to [DRC] as well as records of persons under the supervision of the adult parole authority shall not be considered public records as defined in section 149.43 of the Revised Code.”

Because “record of inmates” is not defined by the law, the lead opinion stated the meaning of the phrase turns on the word “of.” Noting that the Webster’s Third New International Dictionary lists 20 “senses and definitions” of “of,” the lead opinion determined the definition of “of” as “relating to,” “with reference to,” or “about” is what lawmakers intended “records of inmates” to mean.

“So in looking at R.C. 5210.21(F) alone, it is evident the General Assembly broadly exempted records that relate or refer to inmates,” the lead opinion stated.

Because the records provide specific information about Henness, documents about activities DRC undertook to prepare to execute him are related to Henness and are not public records, the Court concluded.

While denying the records, the Court found DRC’s delayed response was unreasonable, and that under R.C. 149.43(C)(2), the firm was entitled to $100 per day from the time it filed for the writ until the day the department responded for a total of $500. The Court ruled it would consider awarding attorney fees to the firm after its submits evidence about the amount and reasonableness of the requested fees.

Training Records Should Be Provided, Dissent Maintained
In the dissenting portion of Justice Kennedy’s opinion, she argued that the lead opinion disregarded the “difference between records that are about someone as opposed to records that merely related to someone.”

The opinion maintained that when read as a whole, R.C. 5120.21(F) only applies to records described in the rest of R.C. 5120.21, which covers personal and medical information about inmates that DRC is required to compile and hold.

Justice Kennedy wrote that the lead opinion’s interpretation makes any record that has anything to do with an inmate exempt from the public records law.

“That interpretation would create an enormous exemption to Ohio’s public-records law stuck into a narrow statute dealing for the most part with records containing inmates’ personal information,” the opinion stated.

Quoting the U.S. Supreme Court’s 2001 Whitman v. Am. Trucking Assn. decision, the opinion stated the legislature does not “hide elephants in mouseholes.”

“Indeed, an exemption that is so expansive that it includes DRC’s records regarding its activities, procedures, and policies would be clearly stated and not shoehorned into an exemption regarding inmates’ personal information,” the opinion stated.

The dissenting justices would grant the law firm the execution rehearsal records with the redaction Henness’ personal information, and award the firm the maximum $1,000 in damages from DRC.

2019-1511. State ex rel. Hogan Lovells LLP v. Ohio Dept. of Rehab. And Corr., Slip Opinion No. 2021-Ohio-1762.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.