Matt Miller was the Superintendent of the Lakota School District. Lakota is one of the state's larger districts, with over 17,000 students. Miller got crosswise with District Board member Darbi Boddy, who engaged in a campaign to oust Miller from his position. Boddy's efforts included making salacious allegations against Miller. The Board authorized a private firm to investigate the allegations. That investigation found no evidence that Miller "engaged in any act that violated law, district policy or his contract."
All of this activity prompted a woman names Vanessa Wells to ask the District to provide her with records related to the drama. In her first request, Ms. Wells asked for "any and all legal documentation (whether email or regular mail) sent from the law firm of Elizabeth Tuck/Matt Miller to all members of the Lakota school board." Elizabeth Tuck was Miller's private attorney. The District sent Ms. Wells a copy of a November 2022 cease-and-desist letter that Tuck had sent to Body, demanding that she immediately stop defaming Miller. In response to a follow up request from Ms. Wells, the District responded that if she was seeking communications between "two non-public entities (that is, two separate law firms), those records are not a public record because they are not created, received, or otherwise under the jurisdiction of a public office."
Ms. Wells also requested "all legal invoices & documents from the date of January 1, 2022, until the current date of January 19, 2023 from all board/attorneys in Lakota Local school district." The District sent the invoices, but redacted the name of the attorney providing the service, the hours spent to provide the service, the attorney's rate, and the narrative describing the service. The District stated that the redactions were necessary to protect information covered by attorney-client privilege. In September 2023, about eight months after Ms. Wells sent her requests and seven months after Ms. Wells brought this case, the District resent the invoices, retaining the redactions for the narratives, but removing the redactions for the other information.
Ms. Wells filed suit in the Ohio Supreme Court asking that the District produce the records and pay her attorney fees and statutory damages. For the most part, Ms. Wells got what she wanted.
On the District's correspondence with counsel, the Court rejected the District's contention that the correspondence contained "privileged settlement communications." As the Curt noted, the Ohio Supreme Court has never recognized such a privilege, and indeed, the Court has ordered public entities to produce records reflecting settlements. As to the redacted invoices, the Court ruled that once the District provided the invoices with the majority of the information unredacted, it fulfilled its duties and rendered the request for the invoices moot.
In what was perhaps the more important portion of the ruling, the Court ordered the District to pay Ms. Wells' attorney fees with respect to the action for the correspondence. As the Court noted, "this court's precedent holds that a settlement agreement involving a public office is a public record. . . . With this precedent on the books at the time of Wells's request, we fail to see how a well-informed custodian would reasonably believe that a communication made in furtherance of settlement could be withheld."
The District dodged the attorney fee bullet on the invoices due to a statutory technicality. Because the District produced the invoices before judgment, Ms. Wells could recover fees only if she proved that the District acted in bad faith. The Court concluded, "[i]t is true that the caselaw was clear at the time of Wells's request that Lakota could redact the narrative portion of the invoice but not more. . . . And it is dismaying that Lakota took eight months to bring its production into compliance with the caselaw by removing the redactions that it had previously applied to the time, attorney name, and rate information. Even so, although Lakota plainly exercised bad judgment in its handling of the legal invoices, bad judgment is not equivalent to bad faith." In other words, bad legal advice isn't bad faith.
It would be nice if this case served as an example of how to handle public records cases. Courts not only should lean to transparency, they should make public entities pay fees when those entities get it wrong. Nice work here by the Supreme Court.