I respectfully dissent from the majority opinion.
A reviewing court must follow the standard stated in Civ. R. 56(C) to determine whether a trial court erred in granting summary judgment. Petrey v. Simon (1984), 19 Ohio App. 3d 285,287, 19 OBR 456, 458, 484 N.E.2d 257, 259. Accordingly, it must be determined that:
"`(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.' * * *" Petrey v. Simon, supra, quoting fromTemple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 Ohio Op. 3d 466, 472, 364 N.E.2d 267, 274.
Contrary to the appellees' contention, the moving party is not entitled to summary judgment merely by showing through uncontroverted affidavits that no genuine issue of material fact exists. Summary judgment shall be entered only where "appropriate" and where the moving party is entitled to judgment as a matter of law. Civ. R. 56; Toledo's Great Eastern ShoppersCity, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St. 3d 198, 202, 24 OBR 426, 429,494 N.E.2d 1101, 1104; Bd. of Managers for the Jager Condominium Assn. v.Perry (May 1, 1975), Cuyahoga App. No. 34096, unreported, at 3-4.
In this case the appellant contends that the appellees were not entitled to judgment as a matter of law. The appellant does not dispute that the requested legal memorandum ordinarily may well have been protected under an attorney-client privilege. The appellant simply argues that the attorney-client privilege does not constitute a ground for the denial of a request for documents under R.C. 149.43.
The Ohio Public Records Law provides in relevant part:
"(A) As used in this section:
"(1) `Public record' means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, exceptmedical records, records pertaining to adoption, probation, andparole proceedings, records pertaining to actions under section2151.85 of the Revised Code and to appeals of actions arisingunder that section, records listed in division (A) of section3107.42 of the Revised Code, trial preparation records,confidential law enforcement investigatory records, and recordsthe release of which is prohibited by state or federal law.
"* * *
"(4) `Trial preparation record' means any record that contains information that is specifically compiled in *Page 124 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.
"(B) All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in such a manner that they can be made available for inspection in accordance with this division." (Emphasis added.)
In construing this provision, the custodian of public records, here the city and its law director, bears the burden of showing that the requested information is not subject to disclosure.Dayton Newspapers, Inc. v. Dayton (1976), 45 Ohio St. 2d 107,110, 74 Ohio Op. 2d 209, 211, 341 N.E.2d 576, 578. Exceptions to the disclosure requirements of R.C. 149.43(B) must be strictly construed against the custodian of the records. State, ex rel.Dayton Newspapers, Inc., v. Rauch (1984), 12 Ohio St. 3d 100, 12 OBR 87, 88, 465 N.E.2d 458, 459; cf. State, ex rel. Plain DealerPublishing Co., v. Krouse (1977), 51 Ohio St. 2d 1, 2, 5 Ohio Op. 3d 1, 1-2, 364 N.E.2d 854, 855. Any doubt should be resolved in favor of the public disclosure of the requested records. DaytonNewspapers, Inc. v. Dayton, supra.
R.C. 149.43(A)(1) enumerates the exceptions to the disclosure requirements of the Ohio Public Records Law. "Clearly, the wording of the statute indicates that the General Assembly sought to guard against these exceptions swallowing up the rule which makes public records available." State, ex rel. Beacon JournalPublishing Co., v. Univ. of Akron (1980), 64 Ohio St. 2d 392,398, 18 Ohio Op. 3d 534, 538, 415 N.E.2d 310, 314. The law specifically excludes those records prepared in reasonable anticipation of litigation. See R.C. 149.43(A)(4). This "trial preparation" exception adequately safeguards the relationship a governmental body has with its independent counsel. Cf. State, exrel. Beacon Journal Publishing Co., v. Univ. of Akron, supra, at 396-397, 18 Ohio Op. 3d at 537, 415 N.E.2d at 313-314.
Besides, the "release" of the requested document prior to the trial court's ruling on the motion for summary judgment raises the question of the sufficiency of the argument that the document was subject to the attorney-client privilege. The statute does not provide a specific exception for the attorney-client privilege. Compare California Public Records Act, Section 625(K), Cal. Governmental Code (West 1987) (exception for records "relating to privilege"); Colorado Open Records Act, Section24-72-204(3)(a)(IV), Colo. Rev. Stat. (1986) (exception for "privileged information"); Michigan Freedom of Information Act, Section 15.243(1)(h), Mich. Comp. Laws Ann. (West 1987). As a matter of statutory construction, the specific mention of one thing implies the exclusion of another, particularly in definitional statutory provisions. Montgomery Cty. Bd. ofCommrs. v. Pub. Util. Comm. (1986), 28 Ohio St. 3d 171, 175, 28 OBR 262, 266, 503 N.E.2d 167, 170.
Further, the construction given comparable legislation in other states is given great weight in construing Ohio statutory provisions. Cf. Schneider v. Laffoon (1965), 4 Ohio St. 2d 89,96, 33 Ohio Op. 2d 468, 472, 212 N.E.2d 801, 806; Koster v.Boudreaux (1982), 11 Ohio App. 3d 1, 6-7, 11 OBR 12, 18,463 N.E.2d 39, 45. The Florida Public Record Act, Section 119.01 et *Page 125 seq., Fla. Stat. Ann. (West 1987), similarly provides that materials prepared exclusively in anticipation of litigation are not subject to disclosure. Id. at Section 119.07(3)(o). The Supreme Court of Florida, reasoning that the trial preparation exception constitutes the extent of its legislature's intended protection for attorney-client communications, held that its statutory attorney-client privilege does not constitute an exception to disclosure. North Miami v. Miami Herald PublishingCo. (Fla. 1985), 468 So. 2d 218, 220.
The Arkansas Freedom of Information Act, Sections 25-19-101 to 25-19-107, Ark. Code Ann. (1987), contains no trial preparation exception. Moreover, because the Act contains no express attorney-client privilege exception as one of the enumerated exceptions to disclosure, the Supreme Court of Arkansas held that litigation files are open to public review. Scott v. Smith (1987), 292 Ark. 174, 176, 728 S.W.2d 515, 516.
The cases from the state of New York cited by the appellees are unpersuasive. The New York Freedom of Information Law, Public Officers Law, Sections 84 to 90 (McKinney 1988), like the Arkansas statute, provides no express protection for attorney-client communications. Contrary to the holding of the Arkansas court, the court in Steele v. New York Dept. of Health (1983), 119 Misc. 2d 963, 966, 464 N.Y.S.2d 925, 927, held that the attorney-client privilege protected an intra-agency legal memorandum from disclosure. In Austin v. Purcell (1984),103 A.D. 2d 827, 478 N.Y.S.2d 64, the majority, declining to base its decision on the attorney-client privilege, merely held that a report prepared by an agency's independent counsel did not fall within one of the exceptions to disclosure for intra-agency materials.
The majority view in this case, compared to the hereinabove referred to holdings of our sister states, castrates Ohio's Public Records Law by applying an attorney-client privilege which is inappropriate in this case. Contrary to the appellees' contention, an attorney's compliance with the Ohio Public Records Law would not violate the Ohio Code of Professional Responsibility. The code expressly provides that an attorney may disclose his client's confidences and secrets as required by law. DR 4-101(C)(2). Further, the Ohio Public Records Law does not conflict with Ohio's attorney-client privilege as embodied in R.C. 2317.02(A). That provision only guarantees a testimonial privilege and is to be strictly construed. Cf. Weis v. Weis (1947), 147 Ohio St. 416, 34 Ohio Op. 350, 72 N.E.2d 245, 169 A.L.R. 668, paragraph four of the syllabus.
Finally, note that the contested memorandum dealt with the issue of whether an action by an elected official would violate this state's ethics in government laws. Certainly this issue was of paramount importance to the citizens of the appellees' community. The memorandum is precisely the type of material intended by the General Assembly to be subject to prompt public disclosure.
Accordingly, I would reverse the judgment of the trial court and remand for further proceedings.