Employee Emails Relating to Data Breach and Payroll Problems Justifies Public Records Request

Last month, the Cuyahoga County Court of Appeals affirmed $1,000 in damages and $4,762.50 in attorneys’ fees for the plaintiff union which sought a month’s worth of emails involving three employees under Ohio’s public records law.  State ex rel. Cleveland Assn. of Rescue Emps. v. Cleveland, 2022-Ohio-3043.  The requested records involved how a data breach affected employee payroll records and the union sought information about this issue by seeking all emails between two employees and all of the emails to and from another employee.  Although the employer objected that the request was overly broad and unduly burdensome and insisted that the union narrow its request, it eventually produced approximately 300 pages to the union’s satisfaction.  The Court ruled that the union’s initial request was entirely proper and limited in scope (i.e. a month and three employees).  The Court also found that the employer acted with bad faith in refusing service of process which was addressed to predecessor employees.  Therefore, it awarded the union the statutory maximum damages and their attorneys’ fees in enforcing the public records request. 

In Ohio, public records are the people’s records. To that end, the public records act is to be construed liberally in favor of broad access and disclosure. The courts are to resolve any doubt in favor of disclosure. State ex rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 20. Exemptions to disclosure under the public records act must be strictly construed against the public records custodian, and the government bears the burden of establishing the applicability of an exception. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 47.

Applying these principles, the court finds that the initial request was reasonable. It stated with clarity what records were requested, and the scope was limited to three specific Cleveland employees for a period of less than a month. A records requester is not necessarily required to limit its request by adding search terms. The failure to honor reasonable requests and the rapid closing of requests undermine the purpose of the public records act.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: No Abuse of Discretion to Order Disclosure of Names of Replacement Teachers Months After Strike Had Ended Without Evidence of Continuing Threats

Last week, a divided Ohio Supreme Court  ruled that, after a labor strike has ended, a public school must disclose as requested the names of replacement teachers hired during the strike. State ex rel. Quolke v. Strongsville City School Dist. Bd. of Edn., 2015-Ohio- 1083 (3/25/15).  However, the court acknowledged that the school may have been justified in withholding the names of the replacement teachers during the strike when there had been harassment, violence and threats of violence against the replacement teachers during the strike.  Nonetheless, the school was still ordered to pay the attorney fees of the successful plaintiff incurred in pursuing the mandamus action to obtain the records because the school still had not produced the records months after the strike ended and had not proven that the replacement teachers would suffer any harm from the delayed disclosure.   

According to the Court’s per curiam opinion, the replacement teachers suffered harassment, violence and threats of violence as a result of the teacher’s strike:   

·        On March 3, a crowd of 75 to 100 people outside the city council building (where the interviews and hiring was taking place) chanted, jeered, and cursed at the applicants as they entered and exited the building to apply for jobs. The crowd took pictures of applicants and screamed obscenities at one applicant who entered the building with her two small children.

·        During the strike, acts of harassment and intimidation aimed at the replacement teachers continued. Replacement teachers discovered notes left in classrooms containing offensive messages. Signs were distributed in neighborhoods where some replacement teachers lived identifying the teacher by name and disclosing his or her address. SEA posted a “wall of shame” on its website with the pictures of some replacement teachers; the posting was accompanied by derogatory and offensive comments. Picketers continued to harass and intimidate replacement teachers during the strike.

·        It was reported that a striking teacher was arrested by the Strongsville Police Department for reckless driving when he allegedly cut off a van transporting replacement teachers to work. The replacement teachers reported to the police that the other driver nearly caused a collision with the van. The replacement teachers described the incident as “harrowing” and “outrageous” and stated that they “feared the worst” and were “frightened.” 

·        A replacement teacher reported to the police that she was driving home after work when a car pulled up next to her and the passenger yelled “scab” and threw an object at her windshield, breaking the glass. 

The teachers’ union immediately requested the names of the replacement teachers and again a month later.  However, the school refused to produce them, citing a concern with their safety.  “In particular, the board asserted that the names of the replacement teachers were not considered public record because of the threat of harm to those teachers.”    The Supreme Court has previously recognized a “good sense” exception to the state public records law when releasing the names of certain employees (such as undercover police officers and children) would result in their harm. “The case law does establish a right to privacy in circumstances in which a person might be at substantial risk of serious bodily harm if personal information is disclosed. . . . . Some cases also indicate that even when imminent bodily harm is not threatened or a potential risk, disclosure is nevertheless precluded because of the potential for nonphysical harm.” 
 

Upon considering the case in August --  months after the strike had ended on April 28--  the appellate court concluded that the school had not proven that the replacement teachers still suffered any “threat of harm after the strike had ended.”  Concerns that that the replacement teachers would suffer retaliation for the remainder of their career was insufficient to make their names non-public.  

Although the Supreme Court recognized that “[t]here may have been a genuine threat to the replacement teachers’ physical well-being from supporters of the strike” and that the school board “reasonably” concluded that the disclosure during the strike could place the replacement teachers at “substantial risk of serious harm,”  it nonetheless affirmed the order to disclose the records in August (when the appellate court considered the mandamus lawsuit) because the school had “presented little or no evidence that once the strike was over, there was any remaining threat to the replacement teachers.”  Accordingly, the appellate court did not abuse its discretion in ordering the disclosure of the replacement teachers’ names.  The Court specifically rejected the school’s concern with a single threat that the replacement teachers would suffer retaliation that would follow them their entire careers.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Compensation Records Concerning Non-Profit Employees Can Be Public Records in Ohio

Last week, the Ohio Supreme Court issued a unanimous public records decision involving a private non-profit organization/joint insurance pool for 66 counties. State ex rel. Bell v. Brooks, Slip Opinion No. 2011-Ohio-4897. The plaintiff had submitted a public records request to the entity seeking a wide variety of records. The entity responded that it was not subject to Ohio’s Public Records Act because it was not a public office. It was a private, non-profit that was exempt from federal taxation as a governmental instrumentality. 88% of its funding came from contributions from the member counties. However, its governing board consisted only of nine individual county commissioners. Examining a number of factors, the Court had no trouble concluding that it was not the functional equivalent of a public office, was not the alter ego of a governmental entity and did not perform traditional government functions.

However, one provision of Ohio’s Public Records Act applies to private, non-profit entities which receive more than 50% of their funding from government entities. With certain exceptions for confidential client/patient records, Ohio Revised Code §149.43 provides in relevant part that:

Any governmental entity or agency and any nonprofit corporation or association, except a corporation organized pursuant to Chapter 1719 of the Revised Code prior to January 1, 1980 or organized pursuant to Chapter 3941 of the Revised Code, that enters into a contract or other agreement with the federal government, a unit of state government, or a political subdivision or taxing unit of this state for the provision of services shall keep accurate and complete financial records of any moneys expended in relation to the performance of the services pursuant to such contract or agreement according to generally accepted accounting principles. Such contract or agreement and such financial records shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and are subject to the requirements of division (B) of that section, . . . .

Any nonprofit corporation or association that receives more than fifty per cent of its gross receipts excluding moneys received pursuant to Title XVIII of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, in a calendar year in
fulfillment of a contract or other agreement for services with a governmental entity shall maintain information setting forth the compensation of any individual serving the nonprofit corporation or association in an executive or administrative capacity. Such information shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and is subject to the requirements of division (B) of that section.

(italics emphasis added by Court).

Because the respondent entity arguably fit within this statutory section, the Court remanded the matter back to the trial court to determine whether the plaintiff was entitled to financial
and employee compensation records under the Ohio Public Records Act.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Inflammatory Investigation Report Produced in Public Records Request Can Create Liability for Defamation

Last week, the Franklin County Court of Appeals issued a decision concerning the never-ending saga involving the Engineering Department plagiarism scandal at Ohio University. Mehta v. Ohio Univ., 2011-Ohio-3484. In a case brought by a different plaintiff and attorney in federal court, the Sixth Circuit held in 2009 that the plaintiff was entitled to a public name-clearing hearing after the University released a report concerning his culpability which he disputed and which did not present his side of the story. The Mehta case presented a straight-forward claim of defamation based on the same report and circumstances, which the Court of Claims had dismissed following a bench trial on the grounds that the statements were constitutionally protected opinion. The Court of Appeals reversed in part. Troubling for public employers, the Court found that the University could be liable for the defamatory investigative report simply for producing it as required by Ohio law in response to a public records request.

According to the decision, three separate investigations were conducted by the University after a student raised a concern in 2004 about plagiarism. The first investigation concluded that it had no jurisdiction because the allegations concerned former students. The second investigation did little more than categorize the types of plagiarism alleged and make recommendations. The third investigation was conducted by two administrators and is the focus of the litigation. Neither had been trained in what constituted plagiarism. Their draft report contained what the Dean perceived as “inflammatory and inappropriate content.” Although the Provost requested that they tone it down, they refused. Nonetheless, the Provost handed out the draft report to the media during a subsequent press conference about the scandal. Among other things, the draft report referred to “rampant and flagrant plagiarism.” The plaintiff was removed from graduate advising duties, but the Dispatch reported that he had been fired (purportedly because that is what the legal affairs director reported).

The Court of Claims found that the challenged defamatory statements constituted protected opinion and, thus, were not actionable. The Court of Appeals disagreed and found the following statements were capable of proof, rather than mere opinion, and that “a reasonable reader would perceive the specific language as a factual assertion that appellant failed to perform his duties as an advisor”:

• "faculty members who either failed to monitor the writing in their advisees' theses or simply ignored academic honesty, integrity and basically supported academic fraudulence."
• faculty members "blatantly [chose] to ignore their responsibilities by contributing to an atmosphere of negligence toward issues of academic misconduct in their own department."

“Because [the authors] implied that they had first-hand knowledge of facts supporting their conclusions, the statements in the [their] Report are verifiable.” Although it was a close call about whether the Report was the author’s opinion (in light of the self-righteous tone, flamboyant phrases, and impassioned pleas), the Court ultimately concluded that the Report purported to reflect a thorough and factual investigation, not merely a call to action.

Finally, the Court was persuaded that the University intended the Report to reflect a factual investigation because it was released to the media with a press release. It later rejected the Court of Claims finding that the report was not actionable as a matter of law because it had been produced pursuant to a public records request. While not discussing whether any qualified privilege exists, it rejected any argument that there is a blanket privilege from defamation for public records.

The University then raised qualified privilege issues (i.e., matters of public concern, etc.) which the Court refused to consider on appeal. The Court of Claims never considered those issues when it dismissed on grounds or constitutionally protected opinion. Therefore, the Court of Claims would need to consider the qualified privilege issues when the matter is remanded for further consideration.

With respect to the statement by a University attorney that the plaintiff had been fired, the Court of Claims determined that neither the reporter nor the attorney seemed to have a clear memory of the issue, but the attorney denied that he would have made any statement like that which was not true. Accordingly, the Court found that there was insufficient proof that the statement had been made to the reporter as alleged.

In that this case has been remanded, we can look forward to another opinion in the future on the scope of the claimed qualified privileges.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: Outside Attorney's Confidential Investigation Report is Exempt from Ohio's Public Records Law

Today, a per curiam Ohio Supreme Court dismissed a mandamus action brought by the Toledo Blade seeking the investigation report written by a private attorney on behalf of a governmental body on the grounds that the report was exempt from Ohio’s public records laws because of the attorney-client privilege. State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., Slip Opinion No. 2009-Ohio-1767. The report had been prepared after the Toledo mayor alleged that the port authority’s president was having an extramarital affair with the port authority’s chief outside lobbyist in violation of authority rules, etc. The port authority retained its outside law firm to conduct an investigation, which included reviewing documents and interviewing employees and other witnesses. The attorney prepared a report, which was distributed to each member of the authority’s board. “The board members were informed that the report was confidential and could not be shown or disclosed to any third party. Following a subsequent special session, copies of the report were returned to the law firm.” The authority then fired the president.

In response to the newspaper’s public records request, the authority provided copies of all documents reviewed by the attorney in the course of her investigation, but did not produce a copy of the report itself, claiming attorney-client privilege. According to the Court, “R.C. 149.43(A)(1)(v) excepts ‘[r]ecords the release of which is prohibited by state or federal law” from the definition of “public record.’ ‘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.’”

The Court rejected the newspaper’s argument “that the factual portions of the investigative report are not covered by the attorney-client privilege, because they do not constitute legal advice.” The common law attorney-client privilege “protects against any dissemination of information obtained in the confidential relationship. . . . In fact, most courts that have expressly addressed the issue of whether an attorney’s factual investigations are covered by the attorney-client privilege have determined that such investigations may be privileged. . . . For example, in Upjohn v. United States , 449 U.S. 383, 390-39, the United States Supreme Court recognized that the “first step in the resolution of any legal problem is ascertaining the factual background and sifting through facts with an eye to the legally relevant.” “[T]he Upjohn pronouncement hardly stands alone. Courts have consistently recognized that investigation may be an important part of an attorney’s legal services to a client.” The Court concluded that “the relevant question is not whether [an attorney] was retained to conduct an investigation, but rather, whether this investigation was ‘related to the rendition of legal services. . . . The attorney-client privilege “does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.”

In short, “[t]he [attorney-client] privilege applies when legal advice of any kind is sought from the legal advisor in that capacity and the client’s confidential communication relates to that purpose.”

Before the attorney-client privilege applies to communications relating to investigative services, the client for whom the investigation was conducted must show that other legal advice or assistance was sought and that the investigation conducted was integral to that assistance.” After applying this test to the facts here, it is manifest that the factual investigation conducted by attorney Grigsby was incident to or related to any legal advice that the attorneys hired by the port authority would give concerning the mayor’s allegations of misconduct by the port authority president. More specifically, the attorney’s investigation required her to draw upon her legal training and experience as well as her knowledge of the law governing the port authority and its policies and personnel. 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 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 concerning a previous port authority investigation. Legal analysis facts in the investigation is integrated throughout the report.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1767.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.