Toledo Schools Must Reveal Letters Regarding Hiring Law Firms
Court found Toledo City Schools violated public records law.
Court found Toledo City Schools violated public records law.
Toledo City Schools improperly redacted one of letters discussing the engagement of two firms to challenge a 2023 law revamping the authority of the State Board of Education, the Supreme Court of Ohio ruled today.
A Supreme Court majority rejected the claim from the Toledo City Schools Board of Education that attorney-client privilege protected against the release of the letters sent to the district. The Court also found Toledo schools improperly concluded the request for the letters was “overly broad.”
In a per curiam opinion, the Court noted the district offered to produce redacted versions of two letters if Thomas Brinkman Jr., who requested the information, dropped his lawsuit to obtain the letters. Brinkman refused to dismiss the case, and a month later, the school district sent him copies of two redacted letters.
The Court today ruled that one letter was properly redacted, but the other removed information that should have been sent to Brinkman. The Court found the district unreasonably delayed sending copies of the redacted letters to Brinkman and violated the Ohio Public Records Act with the improper redactions. Because of the delay and violation, the Court ordered the school district to pay Brinkman $1,000 in statutory damages, along with court costs and attorney fees.
Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, Jennifer Brunner, and Joseph T. Deters joined the per curiam opinion.
Justice Patrick F. Fischer concurred in part and dissented in part, stating he would not award statutory damages or court costs.
Records Regarding Joining Lawsuit Sought
In 2023, the state biennial budget included provisions to create a Department of Education and Workforce, a cabinet-level agency with many duties previously belonging to the State Board of Education. In September 2023, seven school board members filed a lawsuit in Franklin County Common Pleas Court suing the state, claiming the change of authority was unconstitutional.
In October 2023, the Toledo school board joined the lawsuit. The state school board members were represented by two entities: the law firm Ulmer & Berne and the Democracy Forward Foundation. Toledo schools also hired Ulmer & Berne and Democracy Forward to represent it.
That month, attorney Curt Hartman sent a public records request to Toledo schools on behalf of an unnamed client, who would later be identified as Brinkman. Hartman requested a “copy of any agreement or correspondence in which the school district engaged or retained the services of Ulmer & Berne or Democracy Forward Foundation to represent it in the Franklin County case.”
The school district objected to fulfilling the records requests, arguing they were overbroad. The district also said the requested information did not have to be disclosed because it was protected by attorney-client privilege.
In November 2023, Brinkman sought a writ of mandamus from the Supreme Court to compel the district to produce the records. Brinkman also sought statutory damages, court costs, and attorney fees.
Two months after Brinkman filed his case, the district offered to produce two redacted versions of letters sent to the district in September 2023. Those letters outlined the scope, terms, and conditions of their representation. The district told Brinkman it would provide the letters if he dismissed the lawsuit. Brinkman declined.
In February 2024, the Court denied the district’s request to dismiss the case, and set a schedule for the submission of evidence and briefs. The Court ordered the district to file the letters under seal so it could inspect the unredacted versions and determine if the documents were exempt from disclosure by attorney-client privilege.
Six days after the Court’s refusal to dismiss the case, the district provided Brinkman with redacted versions of the engagement letters.
Supreme Court Analyzed Records Request
The Court explained a records request can be denied as being overbroad if a public office “cannot reasonably identify what public records are being requested.” In denying Brinkman’s request, the district claimed it was overbroad because he asked for “any agreements and correspondence related to the retention of legal services.”
The Court noted Brinkman did not use the word “any” in search of a voluminous amount of records, but limited the request by asking for any records about specific agreements with Ulmer & Berne and Democracy Forward related to the state school board lawsuit. The request was not overly broad, the Court concluded.
The Court explained attorney-client privilege, under the Open Records Act, includes communications between attorneys and their government clients, such as the school district. The Court explained in a prior ruling that to be protected from release, attorney-client communications do not have to contain purely legal advice, but can also be “communications that facilitate the rendition of legal services or advice.”
The district did not explain why it specifically redacted portions of the letters it provided to Brinkman, but did emphasize it was entitled to protect information regarding forming an attorney-client relationship when considering representation. The district stated federal case law indicates communications revealing the client’s motive, litigation strategy, or the specific nature of the services being provided are exempt from disclosure.
After reviewing the unredacted versions, the Court agreed that the letter the district provided to Brinkman from Ulmer & Berne properly redacted only information protected by attorney-client privilege.
The letter from Democracy Forward redacted a sentence in which the foundation explained it is not providing any other services other than legal services. The information does not describe any information protected by attorney-client privilege, the Court concluded, and the district should not have concealed it.
The Court ordered the district to provide Brinkman a copy of the letter that included only redactions concerning legal advice protected by attorney-client privilege.
Court Sanctioned District for Record Act Violations
Under R.C 149.43(B), a public office must provide copies of requested records “within a reasonable period of time.” The opinion noted a reasonable period depends on the facts and circumstances, including the volume of records requested and whether redactions are necessary.
The district received the records request in September 2023 and agreed to produce redacted versions in late January 2024, the Court noted.
“The school district produced the redacted copies of the engagement letters four months, one week, and four days after Hartman emailed the public-records request on behalf of Brinkman. The school district cites no authority for the proposition that this amount of time to produce two redacted letters was reasonable,” the Court stated.
The Court noted that even after the district told Brinkman it could produce the redacted letters if he dropped the case, the district did not actually provide the letters for another month. The Court found this also indicates the release was not within a reasonable period of time.
The Open Records Act allows a public office to be penalized $100 per day up to $1,000 for failing to provide a record within a reasonable amount of time. The Court ordered the district to pay Brinkman the maximum amount.
The Court also determined it was not reasonable for the district to believe it did not have an obligation to release the letters with the appropriate redactions. For failing to comply with the law, the district must pay Brinkman’s court costs and attorney fees. Brinkman has 20 days to file an application with the Court for a reasonable amount of attorney fees.
2023-1457. State ex rel. Brinkman v. Toledo City School District Bd. of Edn., Slip Opinion No. 2024-Ohio-5063.
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