The STATE ex rel. The CINCINNATI ENQUIRER v. DUPUIS et al., 147 Ohio App. 3d 561

Hildebrandt, Judge. {¶ 1} This is an original action in mandamus. Relator, The Cincinnati Enquirer, seeks a writ of mandamus ordering the respondents, Fay D. Dupuis and the city of Cincinnati, to produce a proposed settlement agreement tendered to the city by the United States Department of Justice. For the following reasons, we decline to issue the writ. {¶ 2} In April 2001, the Department of Justice initiated an investigation of alleged “patterns and practices” of the city’s police division.

On March 7, 2002, an Enquirer reporter learned that the city had received a proposed settlement from the Department of Justice. The purpose of the proposed agreement was to resolve the issues raised in the investigation. The reporter requested a copy of the proposed agreement from a deputy city solicitor, who declined the request.

The Enquirer then filed this mandamus action, contending that the city has a duty to produce the document pursuant to the Ohio Public Records Act, R.C. 149.43. {¶ 3} We begin with the proposition that any record that is kept by a governmental unit must be made available for inspection to any member of the general public, unless the record is exempt from disclosure by state or federal law. When a governmental unit refuses to release a record, it bears the burden of demonstrating that the record is exempt from disclosure under one of the exceptions enumerated in R.C. 149.43 or in another state or federal law.

The exceptions from disclosure are to be narrowly construed, and all doubts are to be resolved in favor of disclosure. {¶ 4} In the instant case, the city argues that the proposed settlement agreement reflects the negotiations of parties to potential litigation and therefore falls within the “trial preparation record” exception under R.C. 149.43(A)(4). “Trial preparation record” is defined under that provision as “any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.” We agree that this exception applies. {¶ 5} In delineating the boundaries of the trial-preparation-record exception, the courts have distinguished between executed settlement agreements, which are subject to disclosure, and records of negotiations, which are not.

The Eighth Appellate District has explained the distinction by stating that “[a] settlement agreement is a contract negotiated with the opposing party to prevent or conclude litigation. Consequently, although the parties and their attorneys subjectively evaluated the litigation confronting them in order to reach a settlement, the settlement agreement itself contains only the result of the negotiation process and not the bargaining discourse which took place between the parties in achieving the settlement.” {¶ 6} The Supreme Court of Ohio cited the Kinsley court’s reasoning with approval in State ex rel.

Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs.

In discussing the relationship between R.C. 149.43 and Ohio’s Sunshine Law, R.C. 121.22, the court recognized that a governmental body has the right to privately discuss litigation, and that the private nature of such discussion ends only when “a conclusion is reached regarding pending or imminent litigation.” The Find-lay court then held that because the document in question was an executed settlement agreement, it was subject to disclosure under R.C. 149.43. {¶ 7} In the case at bar, the document in question reflects the negotiations between the city and the Department of Justice, and not the final resolution of pending or imminent litigation.

The stipulated facts filed with this court indicate that the proposed settlement has not been ratified by the city. Indeed, there is no indication in the record that city council has deliberated upon the proposal or had even seen it at the time the Enquirer requested its release.

Thus, the city has established that the document contains the confidential negotiations of the parties’ attorneys and does not memorialize an adopted policy or decision of the governmental body. {¶ 8} We are mindful of the Enquirer’s argument that the proposed settlement agreement was not prepared by the city, but we do not regard this circumstance to be dispositive. As the courts in Kinsley and Findlay implicitly stated, it is the content, not the author, of the document, that determines the applicability of the trial-preparation-record exception.

Therefore, even if the document is prepared by the party opposing the governmental unit against whom mandamus is sought, it may nonetheless indicate the “bargaining discourse which took place between the parties,” and, as such, it is entitled to protection from disclosure.

Here, the stipulated facts indicate that the document in question does contain such protected material, and we hold that it is not subject to release as a public record. {¶ 9} Moreover, we find distinguishable the cases cited by the Enquirer for the proposition that even “draft” or tentative agreements are subject to disclosure under R.C. 149.43. In both State ex rel. Calvary v. Upper Arlington and Beacon Publishing Co. v. Stow, the Supreme Court of Ohio held that the governmental bodies were required to release tentative labor agreements.

Here, the settlement proposal does not reflect a tentative agreement, but merely a step in the negotiation process between the parties. As we have already noted, the legislative authority of the city has not ratified or even considered the document in the instant case, and the document, accordingly, cannot be deemed to reflect the “organization, functions, policies, decisions, procedures, operations, or other activities” of the city within the meaning of R.C. 149.011(G).

Therefore, the cases cited by the Enquirer are inapposite. {¶ 10} For the foregoing reasons, we deny the Enquirer’s petition for a writ of mandamus. Further, because we find the petition to be without merit, we deny the Enquirer’s demand for attorney fees. Writ denied. SUNDERMANN, J., Concurs. Painter, P.J., dissents. . Dupuis is the City Solicitor for Cincinnati and is responsible for the custody of certain records pertaining to the city's legal matters. . See State ex rel. Kinsley v. Berea Bd. of Edn. (1990), 64 Ohio App.3d 659, 662, 582 N.E.2d 653.

It is undisputed that a mandamus action is the proper remedy for an alleged failure to comply with R.C. 149.43. See 149.43(C). . See State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, paragraph two of the syllabus. . See id. at 84, 526 N.E.2d 786. . Kinsley, supra, at 663, 582 N.E.2d 653. . (1997), 80 Ohio St.3d 134, 684 N.E.2d 1222. . Id. at 138, 684 N.E.2d 1222. . Id. . See Kinsley, supra, at 663, 582 N.E.2d 653. . (2000), 89 Ohio St.3d 229, 729 N.E.2d 1182. . (1986), 25 Ohio St.3d 347, 25 OBR 399, 496 N.E.2d 908. . See Calvary, supra, at 232, 729 N.E.2d 1182.