Forhan v. Ohio House of Representatives

[Cite as Forhan v. Ohio House of Representatives, 2025-Ohio-5270.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} On September 9, 2025, the Ohio House of Representatives (the House) timely filed objections to the Special Master's August 26, 2025 Report and Recommendation (R&R). On September 10, 2025, Elliot P. Forhan (Forhan) timely filed objections to the R&R. On September 16, 2025, Forhan filed a response to the House's objections. On September 24, 2025, the House filed a response to Forhan's objections. For the reasons below the Court OVERRULES all objections and MODIFIES and ADOPTS the R&R.

Background {¶2} Forhan requested several documents from the House regarding investigations conducted by Perez and Morris, LLC (the Firm). While the House produced several records, it withheld notes generated by lawyers at the Firm who worked on the investigations (the Notes) and preliminary drafts of investigation reports (the Drafts). Forhan filed this claim to challenge the withholding.

{¶3} In his R&R, the Special Master recommended that the Court order the House to produce the drafts of the investigation reports, reimburse Forhan for his filing fee and costs, pay the balance of the court costs associated with this case, and deny all other relief.

The House's Objections {¶4} The House contends that the Special Master erred in finding that the Drafts are public records subject to disclosure. First, the House argues that Forhan failed to

ELLIOT P. FORHAN

Requester

v.

OHIO HOUSE OF REPRESENTATIVES

Respondent

Case No. 2025-00596PQ Judge Lisa L. Sadler

DECISION & ENTRY

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meet his burden to prove that the Drafts are public records. Second, the House contends that because it did not maintain the Drafts, the Drafts cannot be public records. Third, the House posits that the Drafts do not document activities of the House but rather activities of an independent investigator. Fourth, the House argues that Forhan failed to establish a quasi-agency relationship between the House and the Firm. Fifth, the House asserts that the Drafts are personal notes which do not meet the definition of a public record. Essentially, in these five objections, the House argues that the Special Master erred in finding that the Drafts are public records under R.C. 149.011(G).

{¶5} Sixth, the House contends that the Drafts were made in preparation of trial and thus are not subject to disclosure. Finally, the House asserts that the Drafts fall under attorney-client privilege which has not been waived. Therefore, the House requests that the Court sustain its objections and decline to adopt the R&R as it pertains to the Drafts.

Forhan's Objections {¶6} In his objections, Forhan contends that the Special Master erred in not requiring the House to disclose the Notes. First, Forhan asserts that the House did not prove that the Notes were created and used only by the individuals who created them and that the burden of proving that they were lies with the House.

{¶7} Next, Forhan states that he did not rely on the functional-equivalence test in connection with the personal notes exception. Finally, Forhan argues that he did meet his burden of proof with regard to the Notes and that the House did not meet its burden to prove that the personal notes exception applies.

Law and Analysis The Special Master did not err in finding that the drafts are public records. {¶8} R.C. 149.011(G) defines a "record" as "any document . . . coming under the jurisdiction of any public office . . . which serves to document the . . . decisions . . . or other activities of the office." For the purposes of R.C. 149.011(G), a matter is within a public office's jurisdiction if the office has statutory authority to address it. Hurt v. Liberty Twp., 2017-Ohio-825, ¶ 16, adopted March 29, 2017 (Ct. of Cl.), aff'd 2017-Ohio-7820 (5th Dist.). Further, a public office "cannot conceal public records by delegating a public duty to a private entity." State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of

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Commrs., 80 Ohio St.3d 134, 137 (1997). R.C. 149.011(G) does not require a public office to receive or create documents in order for such documents to be records. State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 2021-Ohio-1176, ¶ 14.

{¶9} Here, the House does not dispute that it retained the Firm to investigate a complaint of discrimination made by one of its employees and, separately, how to respond to allegations of inappropriate behavior by one of its members. The Forhan Investigation falls under the House's jurisdiction to maintain order and discipline its members outlined in the Ohio Constitution and the Rules of the House. Further, the other investigation is under the House's jurisdiction because it focused on the administration and operating procedures, also implicating it's duties in the Ohio Constitution. Therefore, the Drafts produced by Firm employees are documents coming under the jurisdiction of the House.

{¶10} The House also argues that the Drafts do not document the activities of the House and were not maintained by the House. The Court finds this argument unpersuasive. Recently this Court stated that:

Although R.C. 149.43(A)(1) requires that a record be "kept by" a public office for it to be a "public record," it does not require that the public office maintain actual possession of the record. Instead, a record is a public record, even in the possession of a private party, if that party came to have the record as result of the public office delegating one of its public functions to the private party. Krings, 93 Ohio St.3d at 656; State ex rel. Gannett Satellite Information Network v. Shirey, 78 Ohio St.3d 400, 403, 1997- Ohio 206, 678 N.E.2d 557 (1997); Toledo Blade, 2005-Ohio-3549, ¶¶ 10, 20, 21; Hurt v. Liberty Twp., 2017-Ohio-7820, ¶¶ 80-90, 97 N.E.3d 1153 (5th Dist.); Wengerd v. E. Wayne Fire Dist., 2017-Ohio-8951, ¶¶ 21, 22, adopted December 11, 2017 (Ct. of Cl.); See also State ex rel. Rea v. Ohio Dept. of Edn., 81 Ohio St.3d 527, 530-531, 1998- Ohio 334, 692 N.E.2d 596 (1998). Ferrise v. Berea City Sch. Dist., 2024-Ohio-5310, ¶ 19.

{¶11} In the instant matter, the Firm only created and maintained the Drafts because the House delegated its power to investigate personnel matters to the Firm. Further, the House asserts that the Drafts cannot be records because they are notes.

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"Personal notes fall outside the scope of the Public Records Act due to the circumstances of their creation: when notes are taken by an official for his own personal convenience . .

. they are not records of the office." State ex rel. Summers v. Fox, 2020-Ohio-5585, ¶ 66. Here, the House admitted that the Drafts were used by several of the Firms employees to work on the investigations over time, not just the original drafter for their own convenience. Therefore, the Court finds that the Drafts are public records under R.C. 149.011(G) and OVERRULES the Houses objection.

The Special Master did not err in finding that none of the exceptions to disclosure applied to the Drafts.

{¶12} A public-records custodian has the burden to establish the applicability of an exception to disclosure of a public record. State ex rel. Cincinnati Enquirer v. Jones- Kelley, 2008-Ohio-1770, paragraph two of the syllabus. In Jones-Kelley the Ohio Supreme Court held:

Exceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. (State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006 Ohio 6714, 859 N.E.2d 948, ¶ 30, followed.)

Kelley at paragraph two of the syllabus.

{¶13} The House asserts that the Drafts are trial preparation records as defined in R.C. 149.43(A)(1)(g) and (4). The Special Master found that the House did not meet its burden to prove that this exemption applies. In order for a public record to be exempted from the Public Records Act by R.C. 149.43(A)(1)(g) and (4) it must have been

"specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding". The Supreme Court has held that "when an investigation has multiple purposes, the records of that investigation cannot be said to be trial preparation records." State ex rel. Cincinnati Enquirer v. Sage, 2015-Ohio-974, ¶ 14, quoting Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 502 (1992). Even though the drafts may have been complied in anticipation of litigation, that was not their

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only purpose. Therefore, the Court finds that the Special Master did not err in finding that the House did not meet its burden of proof for the trial preparation exemption.

{¶14} The House also argues that the Drafts are exempt from disclosure under R.C. 149.43(A)(1)(v) and attorney-client privilege. Public records that are subject to attorney-client privilege are not required to be released under Ohio public-records law. As the Supreme Court of Ohio has explained:

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." State ex rel. Besser v. Ohio State Univ. (2000), 87 Ohio St.3d 535, 542, 2000-Ohio-475, 721 N.E.2d 1044; State ex rel. Nix. v. Cleveland (1998), 83 Ohio St.3d 379, 383, 1998- Ohio-290, 700 N.E.2d 12.

State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 2009-Ohio-1767, ¶ 22.

{¶15} In State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2005-Ohio-1508, ¶ 21, the Supreme Court of Ohio described attorney-client privilege, stating:

Under the attorney-client privilege, "(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived." Reed v. Baxter (C.A.6, 1998), 134 F.3d 351, 355-356; Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App. 3d 28, 2003-Ohio-3358, 790 N.E.2d 817, ¶ 12.

{¶16} This Court has held that in order for a public office to meet its burden of proof for the attorney-client privilege exception to apply, it must prove every element listed above. Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., 2020-Ohio-4856, ¶ 20, adopted 2020-Ohio-5281 (Ct. of Cl.). Upon review of the drafts submitted for an in- camera review and the affidavit testimony provided, the Court finds that the House failed to meet this burden of proof for several of the elements, most notably, the legal advice

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and communications elements. Therefore, the Court finds that the Special Master did not err in recommending that the Court order the House to produce the Drafts; thus, the House's objections are OVERRULED.

The Special Master did not err in finding that the Notes do not constitute public records.

{¶17} Forhan argues that the Notes should be considered public records because the House should have the burden of proving that the Notes were excepted from the definition of a public record and it did not meet that burden. The Court finds this argument unpersuasive.

{¶18} The Ohio Courts have held that a requester has the burden of proving with clear and convincing evidence that he sought an identifiable public record and the public office denied him that record. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 2020- Ohio-5371; Viola v. Cuyahoga Cty. Prosecutor's Office, 2021-Ohio-4210 (8th Dist.); Hurt

v. Liberty Twp., 2017-Ohio-7820 (5th Dist.). When a public office claims that the requested records are not subject to disclosure due to a statutory exception, the public office has the burden to prove by a preponderance of the evidence that the record falls squarely into that exception. White v. Dept. of Rehab. & Correction, 2019-Ohio-472, ¶ 15, (Ct. of Cl.), aff'd, 2020-Ohio-386, ¶ 12, 28 (10th Dist.). But see, Welsh-Huggins at ¶ 63 ("under our precedent, it is not enough to say that a record is probably within a statutorily prescribed exemption") (emphasis sic.). However, personal notes "fall outside the scope of the Public Records Act due to the circumstances of their creation: when notes are taken by an official for his own personal convenience . . . they are not records of the office." State ex rel. Summers v. Fox, 2020-Ohio-5585, ¶ 66.

{¶19} Here, the House claims that the Notes are not public records, therefore, Forhan bears the burden of proving that they are public records with clear and convincing evidence. The Court finds that the Special Master correctly determined that Forhan failed to meet this burden. Forhan did not provide any evidence that the Notes were taken for any other purpose than the convenience of the note takers. Therefore, the Court OVERRULES Forhan's objections.

Conclusion

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