SUPREME Ol@RK OF 0®URT - Supreme Court of Ohio and … construction contractors who do business in Ohio. 2. Respondent ODOT is a "public ... of physical form or ... saved by ODOT

IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL.OHIO CONCRETE CONSTRUCTIONASSOCIATION2600 Corporate Exchange Drive, Suite 165Columbus, OH 43231,

Case No. 09-0267

Relator,

V.

OHIO DEPARTMENT OFTRANSPORTATION,1980 West Broad StreetColumbus, OH 43223,

Respondent.

AMENDED VERIFIED COMPLAINT FOR WRIT OF MANDAMUS

Marion H. Little, Jr. (0042679)Christopher J. Hbgan (0079829)ZEIGER, TIGGES & LITTLE LLP3500 Huntington Center41 South High StreetColumbus, Ohio 43215(614) 365-9900Fax: (614) [email protected] a,iitohio.com

MAR d 5 too9

Ol@RK OF 0®URTSUPREME ®OURT 0F OHIO

RICHARD CORDRAYAttorney General of Ohio

Paul A. Russell (0061711)Assistant Section ChiefStephen H. Johnson (0032423)Principal Assistant Attorney GeneralRichard J. Makowski (0006892)Section ChiefTransportation Section150 East Gay Street, 17`h FloorColumbus, OH 43215Telephone: (614) 466-3036Telecopier: (614) 466-1756paul.russell a,ohioattorneyaeneral.govstephen. i ohnson@ohio attorneyaeneraL govrichard.makowskia,ohioattorneyp,eneral.govAttomeys for RespondentOhio Department of Transportation


STATE OF OHIO EX REL.OHIO CONCRETE CONSTRUCTIONASSOCIATION Case No. 09-0267

Relator,

V.

OHIO DEPARTMENT OFTRANSPORTATION,

Respondent.

AMENDED VERIFIED COMPLAINT FOR WRIT OF MANDAMUS

Relator Ohio Concrete Construction Association ("OCCA"), for its verified complaint

against Respondent Ohio Department of Transportation ("Respondent" or "ODOT"), avers as

follows:

1. Relator OCCA is an Ohio-based trade association, comprised of concrete

construction contractors who do business in Ohio.

2. Respondent ODOT is a "public office" as that term is defined under

Section 149.011(A) of the Ohio Revised Code, and has custody of the records that are the subject

of this action.

3. This is an action for writ of mandamus under the Ohio Public Records

Act, Ohio Revised Code Section 149.43, to compel Respondent to produce public records.

4. Jurisdiction is proper in this Court pursuant to Article IV, § 2 of the Ohio

Constitution and Rule X of the Rules of Practice of the Ohio Supreme Court.

5. Under Section 149.43(A)(1), "`public record' means records kept by any

public office, including, but not limited to, state ... units."

6. Ohio Revised Code Section 149.011(G) defines "records" to include "any

document, device, or item, regardless of physical form or characteristic, including electronic

records, ... created or received by or coming under the jurisdiction of any public office ...

which serves to document the organization, funetions, policies, decisions, procedures, operations,

or other activities of the office."

7. Section 149.43(B)(2) provides that "[tlo facilitate broader access to public

records, a public office ... shall organize and maintain public records in a manner that they can

be made available for inspection."

8. Under Section 149.43(B)(1), "all public records responsive to the request

shall be proniptly prenared and made available for inspection to any person at all reasonable

times during regular business hours."

9. The records at issue are kept by Respondent and evidence its organization,

functions, policies, positions, procedures, and/or operations.

COUNT I

10. Relator repeats and realleges the foregoing allegations as if fully set forth

herein.

11. On or about October 17, 2008, OCCA served, via hand delivery, a public

records request upon Respondent, a true and accurate copy of which is attached hereto as Exhibit

A, seeking the opportunity to inspect the following public records (the "October 17 Public

Records Request"):

(1) The files containing complete cost estimates/projections for ProjectNo. 080507, PID No. 78570, CLI-SR 73-8.34 (the "WilmingtonBypass project");

(2) 'I'he files containing research, data, studies, communications, orother information with respect to the use of different pavement

2

markings and pavement marking materials specified in Table 397-1 of ODOT's Traffic Engineering Manual on asphalt versusconcrete pavement;

(3) The files containing documents, correspondence and/or otherdocumentation with respect to ODOT's decision to requiredifferent pavement parking systems for asphalt and concretealternative bids for the Wilmington Bypass project;

(4) The files containing documents reflecting any calculations ofamounts paid and/or saved by ODOT in the current fiscal yearunder Item 401.20 of ODOT's Construction and Materials'specifications; i.e., the "Asphalt Binder Price Adjustment";

(5) The complete correspondence file(s) for the Wilmington Bypassproject for both ODOT's headquarters and ODOT's District 8office;

(6) E-mails to or from ODOT Director James Beasley, ODOT DeputyDirector Bill Lindenbaum and/or District 8 Deputy Director HansJindal, specifically referencing or relating to the WilmingtonBypass project, from conception to present;

(7)

(8)

(9)

Since April 1, 2008, e-mails (or other documents memorializingcorrespondence) between any ODOT employee and: (a) the JohnR. Jurgensen Companies; (b) the E.S. Wagner Co.; and (c) FlexiblePavements of Ohio.

The files containing life cycle cost analysis, and supportingdocumentation, for the Wilmington Bypass project fromconception to present; and

The files containing complete change orders, and supportingdocumentation, for the following ODOT Project Numbers: (a)040294; (b) 050108; (c) 060117; (d) 060087; and (e) 060150.

Collectively, the requested public records are referred to herein as the "ODOT Records."

12. On or about October 21, 2008, Respondent responded, in writing, and

indicated: "We are in the process of gathering documents responsive to this request for your

inspection. We will notify Terri Thompson once these documents are available for review."

Respondent made no objection to production of the ODOT Records. A true and accurate copy of

Respondent's corTespondence of October 21, 2008, is attached hereto as Exhibit B.

13. However, no documents were produced by Respondent in either October

or November, and thus on or about December 10, 2008, OCCA sent a letter to Respondent, a true

and accurate copy of which is attached hereto as Exhibit C, inquiring as to the status of the

public records. The letter stated in particular part: "We are following-up regarding your

correspondence of October 21, 2008 (a copy of which is enclosed) as to the status of our public

records request. Your offices advised us in early November that the records would be

forthcoming. We would appreciate it if you would look into the status of the production and

advise of the same."

14. In response to the correspondence of December 10, 2008, ODOT made

available certain records at its District Eight offices. An inspection by representatives of OCCA

revealed that the only materials produced were engineering materials. As such, on or about

December 24, 2008, OCCA sent yet another letter, a true and accurate copy of which is attached

hereto as Exhibit D, seeking production of the ODOT Records.

15. As of the filing of this action on February 5, 2009, 111 days had passed

since OCCA hand delivered its public records request to Respondent. As of that time,

Respondent had not made available for inspection the ODOT Records (except for engineering

records). Nor had it, pursuant to Section 149.43(B)(3), offered any reason for the defacto denial

(or for that matter, delay) of the public records request. Accordingly, Respondent had failed to

make public records available for inspection and otherwise failed to act in a timely manner.

16. Such delay and lack of responsiveness is both in violation of the Ohio

Public Records Act and Respondent's own Public Records Act Policy and Procedures, a true and

accurate copy of which is attached hereto as Exhibit E (the "ODOT Public Records Policy").

Specifically, ODOT's Public Records Policy provides, among other items:

• "If a request is ambiguous or overly broad, ODOT will give you anopportunity to revise the request and explain how the records aremaintained and accessed at the Department."

• "If the requested record contains information that is exempt (aslisted below), ODOT will make available the portion of the recordthat is not exempt and clearly redact the exempt portion of therecord."

• "If a request is denied in whole or in part (by redaction), theDepartment shall provide you with an explanation of the denial,which includes the legal authority for the denial. If the originalrequest was in writing, the explanation of the denial will also be inwriting."

• "Documents will be promptly prepared and made available forinspection. If you want copies of the documents, ODOT mayrespond by electronic mail or other means if you have noobjection. If you want hard copies, the standard charge is 5 centsper page. ODOT may charge 50 cents per page if the copies arelarger then 8'/x X 11. Postage may be included in the charges.The copying fee may be waived for requests under 10 pages.ODOT may require prepayment of the cost involved in providingthe copy of the public record,"

• "ODOT must respond to public records requests within areasonable amount of time. What is a reasonable amount of timedepends upon such factors as the extent of the request and physicallocation of the documents."

17. Indeed, as reflected on Exhibit F hereto, ODOT has created "form"

responses to explain why public records are being redacted or denied.

18. In response to the October 17 Public Records Request, ODOT did not

timely, in violation of its own policy, indicate that the request was "ambiguous or overly broad;"

did not redact any records; did not provide an explanation for any denial; did not promptly

5

prepare and make available the documents for inspection; and otherwise did not respond to the

public records request within a reasonable amount of time.

19. Subsequent to the filing of this action, by a letter of February 13, 2009

(which Relator received on February 17, 2009), ODOT forwarded a copy of the letter attached

hereto as Exhibit G and purported to respond to the October 17 Public Records Request. In

particular, ODOT responded that as to the first category of documents, "[tlhe files containing

complete cost estimates/projections for Project No. 080507, PID No. 78570, CLI-SR 73-8.34

(the "Wilmington Bypass project")," it had produced them on December 18, 2008, for inspection

and copying.

20. ODOT then proclaimed that there were no documents responsive to the

second, third and fourth categories of documents, which were as follows:

(2) The - files containing research, data, studies,communications, or other information with respect tothe use of different pavement markings and pavementmarking materials specified in Table 397-I ofODOT's Traffic Engineering Manual on asphaltversus concrete pavement;

(3) The files containing documents, correspondence,and/or other documentation with respect to ODOT'sdecision to require different pavement parkingsystems for asphalt and concrete alternative bids forthe Wilmington Bypass project;

(4) The files containing documents reflecting anycalculations of amounts paid and/or saved by ODOTin the current fiscal year under Item 401.20 ofODOT's Construction and Materials' specifications;i.e. the Àsphalt Binder Price Adjustment';"

21. This, of course, is not true inasmuch as by a letter dated February 13, 2009

(received by Relator on February 17, 2009) ODOT conceded there were documents responsive to

the fourth category of documents and ultimately produced the same-some 119 days after the

6

service of the October 17 Public Records Request. A true and accurate copy of ODOT's

February 13, 2009, correspondence is attached hereto as Exhibit G.

22. In the February 11, 2009, correspondence, a true and accurate copy of

which is attached hereto as Exhibit H, ODOT stated that it was in the process of gathering

responsive documents to category 6 of the October 17 Public Records Request ("E-mails to or

from ODOT Director James Beasley, ODOT Deputy Director Bill Lindenbaum and/or District 8

Deputy Director Hans Jindal, specifically referencing or relating to the Wilmington Bypass

project, fxom conception to present") and category 9 ("The files containing complete change

orders, and supporting documentation, for the following ODOT Project Numbers: (a) 040294;

(b) 050108; (c) 060117; (d) 060087; and (e) 060150").

23. By its correspondence of February 13, 2009 (again received February 17,

2009), ODOT produced emails and otherwise invoked the attorney-client privilege as to 141

emails.

24. As to category 9, ODOT still failed to respond, but rather simply attached

an Excel spreadsheet summary and disregarded specific requests made in the October 17 Public

Records Request.

25. As for the seventh request for documents ("Since April 1, 2008, e-mails

(or other documents memorializing correspondence) between any ODOT employee and: (a) the

John R. Jurgensen Companies; (b) the E.S. Wagner Co.; and (c) Flexible Pavements of Ohio"),

some 117 days after the service of the October 17 Public Records Request, ODOT declared that

the information sought was overly broad and lacked specificity in particularity.

26. In sum, as of the filing of this Amended Complaint, ODOT still has not

satisfied category 9 of the February 13, 2009, request; has not produced any documents in

7

response to category 7, but rather,belatedly interjected an objection; and otherwise declared it

has produced responsive docurnents although an independent confirmation has not been made.

COUNT II


herein.

28. Under Section 149,43(B)(1), "all public records shall be promptly

prepared and made available for inspection to any person at all reasonable times during regular

business hours." Additionally, "a public office or a person responsible for public records shall

make copies available at cost, within a reasonable period of time."

29. Respondent has failed to timely produce the ODOT Records in violation

of Section 149.43(B)(2).

COUNT-III


herein.

31. Section 149.43(C)(1) provides that if a requestor of public records

transmits a written request by hand delivery to inspect or receive copies of any public records in

a manner that fairly describes the public record or class of public records to the public office, the

requestor shall be entitled to recover statutory damages if the Court determines that the public

office failed to comply with the Public Records Act.

32. The current statutory damage is fixed at $100 for each business day during

which the public office failed to comply with its obligations in accordance with the Act.

33. OCCA is entitled to an award of statutory damage, plus reasonable

attorneys' fees and costs, for Respondents' failure to timely produce public records.

8

WHEREFORE, Relator prays for the following:

A. A writ of mandamus compelling Respondent to produce the ODOT

Records immediately and a finding that Respondent did not timely produce the public records;

B.

C.

An award of statutory damages;

Its costs and expenses, includin torneys' fees incurred herein; and

D. Such other and further relief a thi Cour deems appropriate.

Respe full' subm ^ted,

Marion^Hit I j 3^ %42L679)Christo r J. 9)ZEIGER, TIGGES E LLP3500 Huntington Center41 South High StreetColumbus, Ohio 43215(614) 365-9900(614) [email protected]@litohio.com

Attorneys for Relator

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing has been served this 4th day

of March, 2009, via email and regular United States mail, postage prepaid, upon the following:

Richard J. MakowsldAssistant Attorney GeneralChief, Trans ortation SectionOffice of R'c ard Corday, Attomey General of Ohio150 E. Ga S eet, 22nd Fl.Codui bus 0 'o 43215-3130

Attorney for spondentOhio Dep tm tnof Vansportation

853-001191185

10

VERIFICATION

I, Tom Norris, declare on behalf of the Ohio Concrete Construction Association, that I

have read the Amended Verified Complaint and know the contents thereof; and that the same are

true and correct to the best of my knowledge.

STATE OF OHIO. ss

COUNTY OF FRANKLIN :

Sworn to before me and subscribed in my presence this -Â- day of March, 2009.

^,:. L.T,Notary Public

853-001,190489v.2 TERRI L. THOMPSON: Notary Public, State of Ohio

^'My commission expires 08/24/2009


STATE OF OHIO EX REL.OHIO CONCRETE CONSTRUCTIONASSOCIATION, Case No. 09-0267

Relator,

V.

OIIIO DEPARTMENT OFTRANSPORTATION,

Respondent.

AFFIDAVIT OF CHRISTOPHER J. HOGAN

STATE OF OHIO:SS

COUNTY OF FRANKLIN :

Christopher J. Hogan, first being duly sworn according to law, deposes and states that he

has personal laiowledge of matters set fortli herein except as specifically noted otherwise, and

further states as follows:

1. I am an attorney with the law firm of Zeiger, Tigges & Little LLP.

2. I represent the Ohio Concrete Construction Association ("OCCA").

3. As set forth in the Amended Complaint, and reflected in the exhibits attached

thereto, on October 17, 2008, I served, on behalf of OCCA, a public records request, via hand

delivery, upon the Ohio Departrnent of Transportation ("Respondent").

4. On or about October 21, 2008, Respondent responded, in writing, and indicated:

"We are in the process of gathering documents responsive to this request for your inspection.

We will notify Terri Thompson once these documents are available for review." Respondent

made no objection to production of the ODOT Records. A true and accurate copy of

Respondent's correspondence of October 21, 2008, is attached to the Amended Complaint as

Exhibit B.

5. However, no documents were produced by Respondent in either October or

November, and thus on or about December 10, 2008, I sent on behalf of OCCA a letter to

Respondent, a true and accurate copy of which is attached to the Amended Complaint as Exhibit

C, inquiring as to the status of the public records. The letter stated in pariicular part: "We are

following-up regarding your correspondence of October 21, 2008 as to the status of our public

records request. Your offices advised us in early November that the records would be

forthcoming. We would appreciate it if you would look into the status of the production and

advise of the saine."

6. In response to the correspondence of December 10, 2008, ODOT made available

certain records at its District Eight offices. An inspection by representatives of OCCA revealed

that the only materials produced were engineering materials. As such, on or about December 24,

2008, I sent on behalf of OCCA yet another letter, a true and accurate copy of which is attached

to the Amended Complaint as Exhibit D, seeking production of the ODOT Records.

7. To date, however, Respondent has not made available for inspection the ODOT

Records (except for engineering records). Nor has it, pursuant to Section 149.43(B)(3), offered

any reason for the defacto denial (or for that matter, delay) of the October 17 Public Records

Request. Accordingly, Respondent has failed to make public records available for inspection.

8. Such delay and lack of responsiveness is both in violation of the Ohio Public

Records Act and Respondent's own Public Records Act Policy and Procedures, a true and

accurate copy of which is attached to the Amended Complaint as Exhibit E (the "ODOT Public

Records Policy"). Specifically, ODOT's Public Records Policy provides, among other items:

2

• "If a request is ambiguous or overly broad, ODOT will give you anopportunity to revise the request and explain how the records aremaintained and accessed at the Department."

• "If the requested record contains information that is exempt (aslisted below), ODOT will make available the portion of the recordthat is not exempt and clearly redact the exempt portion of therecord."

• "If a request is denied in whole or in part (by redaction), theDepartment shall provide you with an explanation of the denial,which includes the legal authority for the denial. If the originalrequest was in writing, the explanation of the denial will also be inwriting."

• "Documents will be promptly prepared and made available forinspection. If you want copies of the documents, ODOT mayrespond by electronic mail or other means if you have noobjection. If you want hard copies, the standard charge is 5 centsper page. ODOT may charge 50 cents per page if the copies arelarger then 8'/z X 1 l. Postage may be included in the charges.The copying fee may be waived for requests under 10 pages.ODOT may require prepayment of the cost involved in providingthe copy of the public record."

• "ODOT must respond to public records requests within areasonable amount of time. What is a reasonable amount of timedepends upon such factors as the extent of the request and physicallocation of the documents."

9. Indeed, as reflected on Exhibit F to the Amended Complaint, ODOT has created

"form" responses to explain why public records are being redacted or denied.

10. In response to the October 17 Public Records Request, ODOT did not timely, in

violation of its own policy, indicate that the request was "ambiguous or overly broad;" did not

redact any records; did not provide an explanation for any denial; did not promptly prepare and

make available the documents for inspection; and otherwise did not respond to the public records

request within a reasonable amount of time.

3

11. This, of course, is not true inasmuch as by a letter dated February 13, 2009

(received by Relator on February 17, 2009) ODOT conceded there were documents responsive to

the fourth category of documents and ultimately produced the same-some 119 days after the

service of the October 17 Public Records Request. A true and accurate copy of ODOT's

February 13, 2009, correspondence is attached to the Amended Complaint as Exhibit G.

12. In the February 11, 2009, correspondence ODOT stated that it was in the process

of gathering responsive documents to category 6 of the October 17 Public Records Request ("E-

mails to or from ODOT Director James Beasley, ODOT Deputy Director Bill Lindenbaum

and/or District 8 Deptity Director Hans Jindal, specifically referencing or relating to the

Wilmington Bypass project, from conception to present") and catcgory 9 ("The files containing

complete change orders, and supporting docunientation, for the following ODOT Project

Numbers: (a) 040294; (b) 050108; (c) 060117; (d) 060087; and (e) 060150"). A true and

accurate copy of ODOT's Febntary 11, 2009, correspondence is attached to the Amended

Complaint as Exhibit H. .

13. By its correspondence of February 13, 2009 (again delivered February 17, 2009),

ODOT produced emails and otherwise invoked the attotney-client privilege as to 141 emails.

14. As to category 9, ODOT still failed to respond, but rather simply attached an

Excel spreadsheet stunmary and disregarded specific requests made in the October 17 Public

Records Request.

15. As for the seventh request for documents ("Since April 1, 2008, e-mails (or other

documents memorializing correspondence) between any ODOT employee and: (a) the John R.

Jurgensen Companies; (b) the E.S. Wagner Co.; and (e) Flexible Pavements of Ohio"), some 117

4

days after the service of the October 17 Public Records Request, ODOT declared that the

information sought was overly broad and lacked specificity in particularity.

16. In sum, as of the filing of this Amended Complaint,. ODOT still has not satisfied

category 9 of the February 13, 2009, request; has not produced any documents in response to

category 7, but rather belatedly interjected an objection; and otherwise declared it has produced

responsive document although an independent confirmation has not been made.

17. Under Section 149.43(B)(1), "all public records shall be promptly prepared and

made available for inspection to any person at all reasonable times during regular business

hours." Additionally, "a public office or a person responsible for public records shall make

copies available at cost, within a reasonable period of time."

18. Respondent has failed to timely produce the ODOT Records in violation of

Section 149.43(B)(2).

Further Affiant sayeth naught.

Sworn to and subscribed in my presence this _q& day of :J)A&^, 2009.

-Tuv",- L.Notary Public

853-001:190680v.2

o My commission expires 08/24/2009

TERRfL.TNOMP50NNotary Public, State of Ohio

5

ZEIGER, TIGGES & LITTLE LLP

TELEPHONE ( 814) 969-Bfi0O

FAC61M1LE ( 614) 366-7900

Via Hand Deliverv

ATTORNEYS AT LAW

3500 HllNTINGTON CENTER

41 SOUTH HIGH BTREET

COLUM9US, OHIO 43216

October 17, 2008

Ohio Department of TransportationRecords Custodian1980 West Broad StreetColumbus, Ohio 43223

wRITER'6 OIRECT NUMBER

(614)324•5078

Re: Public Records Request

Dear Sir/Madam:

Pursuant to Section 149.43 of the Ohio Revised Code, we request an opportunity toinspect and copy the following public records:

(1) The files containing complete cost estimates/projections for Project No. 080507,PID No. 78570, CLI-SR 73-8.34 (the "Wilmington Bypass project");

(2) The files containing research, data, studies, connnunications, or other informationwith respect to the use of different pavement markings and pavement markingmaterials specified in Table 397-1 of ODOT's Traffic Engineering Manual onasphalt versus concrete pavement;

(3) The files containing doouments, correspondence and/or other documentation withrespect to ODOT's decision to require different pavement parking systems forasphalt and concrete alternative bids for the Wilmington Bypass project;

(4) The files containing documents reflecting any calculations of arnounts paid and/orsaved by ODOT in the current fiscal year under Item 401.20 of ODOT'sConstruction and Materials' specifications; i.e., the "Asphalt Binder PriceAdjustment";

(5) The complete correspondence file(s) for the Wilmington Bypass project for bothODOT's headquarters and ODOT's District 8 office;

EXHIBIT

A

ZEIGEii, TIGGES & LITTLE LLP

Ohio Department of't'ransportationOctober 17,2008Page 2

(6) E-mails to or from ODOT Director James Beasley, ODOT Deputy Director BillLindenbaum and/or District 8 Deputy Director Hans Jindal, specificallyreferencing or relating to the Wilmington Bypass project, from conception topresent;

(7)

(8)

(9)

Since April 1, 2008, e-mails (or other documents memorializing correspondence)between any ODOT employee and: (a) the John R. Jurgensen Companies; (b) theE.S. Wagner Co.; and (c) Flexible Pavements of Ohio.

The files containing life cycle cost analysis, and supporting documentation, forthe Wilmington Bypass project from conception to present; and

The files containing complete change orders, and supporting documentation, forthe following ODOT Project Numbers: (a) 040294; (b) 050108; (c) 060117; (d)060087; and (e) 060150.

Pursuant to Section 149.43(B)(1), please promptly make these documents available forinspection. Please contact the undersigned or the undersigned's assistant, Terri Thompson, at614-324-5065 when these records are available for inspeotion. Thank you for your attention tothis matter.

853-0DI : 188279

OHIO ®F.PARTMENT OF TP-ANBI'ORTATION.CENTRAL. OFF{CZ, 1980 WRBT BROAD STR6ET, COL.UMBUB, OH 43228

T6D STRICKLANO, GOVERNOR ° JAMeS G. BR,ASLEY, P.E,'., P.S., DIRECTOR

r

October 21, 2008

Christopher HoganZeiger, Tigges & Little I.LP3500 Huntington Center41 SouthHigh StreetColumbus, Ohio 43215

Re: Public Reeords Request

Dear Mr. Hogan:

This letter is in response to your letter dated October 17, 2008. In this letter you requested toinspect the fbllowing doeuinents:

(1) The files eontaining aomplete cost estimates/projections for ProjectNo. 080507, PIDNo. 78570, CLI-SR 73-8.34 (the "Wllniington Bypass projeot");

(2) The files containing research, data, studies, comniunications, or other informationwith respect to the use of different pavement markings and paveinent niarkingmateials specified in Table 397-1 of ODOT's Traffic Engineering Manual on asphaltversus concrete pavement;

(3) The files eantaining docwu.nents, correspondence, and/or other documentation withrespect to ODOT's decision to require different pavetnent parldng systems for asphaltand concrete altemative bids for the Wilmington Bypass project;

(4) The files containing documents reflecting any calculations of amounts paid and/orsaved by ODOT in the current fiscal year under Item 401.20 of ODOT's Constractionand Materials' specifications; i.e. the "Asphalt Binder Price Adjustment";

(5) The eomplete correspondence file(s) for the Wiltnington Bypass project for bothODOT's headquarters and ODOT's District 8 office;

(6) E-mails to or from ODOT Director James Beasley, ODOT Deputy Director BillLindenbaum and/or District 8 Deputy Director Hans Jindal, specifically referencingor relating to the Wilmington Bypass project, from conception to preseit;

(7) Sinoe April 1, 2008, e-mails (or other documents memorializing correspondence)between any ODOT employee and: (a) the Jolm R. Jurgensen Coinpani.es; (b) the E,S.WagLier Co.; and (c) Flexible Paveinents of Ohio;

AM EQUAL OPPORTUNITY GMPL®YeR

(8) The files containnig life cycle cost analysis, and supporting documentation, for theWilmington Bypass project fi•om conception to preseiit; and

(9) The files containing complete change orders, and supporting documentation, for thefollowing ODOT Project Nutnbers; (a) 040294; (b) 050106; (e) 060117; (4) 060087;and (e) 060150. ,*

We are in the process of gathering the documents responsive to this request for your inspoction.We will notify Terri Thoiupson once these documents are available for review.

Sincerely,

Heather L. SullivanAssistant Legal Counsel

cc: Scott VarnerBill Becker

- ZEIGER, TIGGES & LITTLE Iir

T6LEPHONE;(614)365.9900

PACSIMII.E; /614i 365.7900

ATTORNEYS AT LAW

3500 HUNTINGTON CENTER

41 SOUTH HIGH STREET

COLUM6U5, OHIO 43215

December 10, 2008

WRITER'S DIRECT Nl1MBERi

(614)314-5078

Heather L. Sullivan, Esq.Assistant Legal CounselOhio Depallment of Transportation1980 West Broad StreetColumbus, Ohio 43223

Re: Public Records Reauest

Dear Heather:

We are following-up regarding your correspondence of October 21, 2008 (a copy ofwhich is enclosed) as to the status of our public records request. Your offices advised us in earlyNovember that the records would be forthcoming. We would appreciate it if you would lookinto the status of the production and advise of the same.

Enclosure

853-001:189642

TELEFHONE: ( 814) 3639900KACSIMILE:(814) 369-7900

ZEIGER, TIGGES & LITTLE LLP

ATTORNEYS AT LAW

3500 HUNTINGTON CENTER

41 SOUTH HIGH STREET

COLUMBUS. OHIO 43215

December 24, 2008

Via Email

Heather L. Sullivan, Esq.Assistant Legal CounselOhio Department of Transportation1980 West Broad StreetColumbus, Ohio 43223

Re: Public Records Reeuest

Dear Heather:

WRITER-9 DIRECT NUMBER

(614) 324•5078

In response to our letter of December 10, 2008, the Ohio Department of Transportationmade available records at the District Eight offices. Unfortunately, contrary to what had beenindicated to us, the records did not include all of the materials sought by our public recordsrequest. Instead, the only documents produced are what can be generally characterized asengineering materials. All other materials, our representative has advised, are apparently stillbeing reviewed by ODOT's legal counsel.

We again request that these documents be produced for inspection as soon as possible.

853-061:IB9905

EXHIBIT

D

The purpose of this policy is to ensure that all public records requests are handled in a

EXHIBIT

E

A public record is any document, device, or item, regardless of physical form or characteristic, including an

electronlc record, created or received by or coming under the jurisdiction of any public office of the state, which serves to

document the organization, functions, policies, declsions, procedures, opera[ions, and other activities of ODOT.

timely and uniform manner at the Ohio Department of Transportation ("Ol]OIL.

1. ODOT will respond topublic recards requests whether therequest is written or verbal. Each district and central offiee willhave a copy of Its current relention sahedule availabla.

2. 0D0Twil1 acknowledge receipt of the request verbally orin writing. You may be asked to put your request In writing,however, if you decline, ODOT must honor yourverbal request.

3. If an ODOT employee believes it would help ensure theaccuracy of the Department's respunse, you may be askedfor ldentiflcafion and the intended use of the information yourequest butyou are not obligated lo give Ihls in(ormation,

4. If a requasl is ambiguous or overly broad, ODOTw[il glve youan opportunlty to revise the request and explain how the recordsare maintained and eccessed at the Department.

5. If Ihe requested record conlains informafton that is exempt(as listed below), ODOTw(II make available the portion of therecard that Is not exempt and clearly redact the exempt portionoftharecord.

'f a request is denied in whole or In part jby redaetion), theDepartment shall provide you with an explana0on of the denial, whichincludes the legal aulharity for the deniaL lf the original request was inwriting, the explanation of the denial will also be In writing.

Documents will be promptly prepared and made available forinspection. If you want copies of the documents. ODOT may respondby electronic mail or other means if you have no objection. if youwant hard copies, Ihe standard charge Is 5 cents per page. ODOTmay charge 50 cents per page if the copies am larger then 8'/e X11, Postage may be included In the charges. The copying fee may bewaived for requesls under 10 pages. ODOT may requlra prepaymentof the cost involved in providing the copy of ihe public mtord.

You ere pennitted to choosa lo have lhe public record copfed on paperor upon any olher medlum In which it can reasonably be duplicated.

ODOT must respond to public records requests within a reasonableamount of lime. What is a reasonable amounl of time depends uponsuch factors as the exlenl of Ihe requesl and physical location of thedocuments.

The following are examples of records exempt from disclosure under the public records act:

1. Cost estimates of projects until atl bids have been received, R.C. 5525.15,

2. Information relallve to bidder qualificalione, R.C. 5525.04.

3. Sealed bids (or conslruction projects, R.C. 5525.10.

4- Trade secrels, R.C. 1333.61(D).

6. Employee medical records, R.C. 149.43 (A1.

7. Social Securgy numbers, R.C. 149A3 (A).

8. Certain selection devices used in making hiring and promolional decisions,R.C. 124.09(B).

9. Certaln communicatlons between ODOT employees and an attorneywithin the staff of ODOT's Offrce of Chief Legal Counsel, the Attorney

General, or special counsel appointed by the Atlorney General,R.C. 149.43(A).

10. Rles on cument adminlstralive Investlgations, R.C. 149,43 (A)(2).

11. Home addreases and home telephone numbers of stateemployees per State ex rel. Dispatch Printing Co. v. Johnson(2005), 106 Ohio 8L3d 160,

12. Any records eraated or maintained by 0D0T fnrsecurilypurposes and infraslruclure records that dlsclose theconfiguration of the Depactment's crtlical systams, including buinot Itmited to, communication, computer, electrical, mechanical,ventllalion, waler, plumbing syslems or sentdly codes. This doesnot mean a simple floor plan that discloses the physical locationof the componenls of the office, R.C. 149.433.

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ODOT Home > Dlvielons > Chief Legal Counsel > PuhlicRecorde I F U ragc 1 ui

Under Ohio's Public Records Law, ODOT must now provide explanations for why documents are redacted or denied.The Office of Chief Legal Counsel has drafted standard form letters for the most common reasons for denying, orredacting, a public record request. Please note, whenever a public record is redacted or denied Chief LegalCounsel must receive a copy of the letter explaining the reasons for redaction or denial. Please sendthese letters, by Interofflce mail, to Catherine Cola Perkins's attention.Public Records Request Doctmlents

Type T,tle Name Modiend

d Cate9o ,ry : Procedures (1)

n Public Records Request Standard Operating Pracedure

J Capogory : Redaction and Denials (11)

Public Records (9-1-07) 1012312008 11:38 AM

IM Attorney Client Pdviledge Denial Atxomey Client 10/23/2008 li:13 AM

93 Bldder Quallfira8ons Denlal Bidder Qualiricabnns 10/23/200811:44 AM

bD Current Adminlstro0ve Invesdgatlons Denial Cunent Al's Ig/23/2008 11:45 AM

Ll Home Address and 7elephone Exempt Denial Home Adresses and Phone Numbers 10/23/200811:46 AM

g,) Any and All Infonna8on - Lada 5pedficRy and ParBculadty Denlai Lack SpetlBcity and Particularity 18123/200811:47 AM

iM Medkel Records Denlal Medlcal Records 10/23/200811:48 AM

r! Cost Estlmates Exempt Un81 All Bids are Received Denial Open Cost Estimates 10123/200811:49 AM

e Sealed Blds Exempt from Dlsciosure Denial Sealed Bids 10/2312008 11:50 AM

L! I Security and Infra: rucw•re Ezemgon Cenfal 'a.t.urily I55ue 10123/2008 11:51 AM

ZM Selection Devlces In Hiring Denial Selection Devices 10/23/200811:56 AM

8^, social Security Numben; Denlai Social Security Numbers 10/23/IOD811:57 AM

Defmition of Terms

Attorney ClientCertain communications between ODOT employees and an attorney wlthin the staff of ODOT's Office of ChiefLegal Counsel, the Attorney General, or speclal counsel appointed by the Attorney General may be redacted ordenied.

Lacks Specificity and ParticuiarityIf a publlc record request asks for "any and all" documents, etc., ODOT may deny, redact, or request addltionalinformation,

Open Cost EstimatesCost estimates of projects until all bids received may be redacted or denled. Please note, that we may releasethis information to a local government authority who Is participating in the cost.

Security and Infrastructure Records are defined by the Ohio Revised Code as:ORC § 149.433. (A)(2) "Infrastructure record" means any record that discloses the configuration of a publicoffice's or chartered nonpublic school's critical systems including, but not limited to, communication, computer,electrical, mechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure orstructural configuration of the building in which a public office or chartered nonpublic school is located."Infrastructure record" does not mean a simple floor plan that discloses only the spatial relatlonship ofcomponents of a public office or chartered nonpublic school or the building in which a publlc offlce or charterednonpublic school is located.

ORC § 149.433. (A)(3) "Security record" means any of the following:(a) Any record that contains information directly used for protecting or maintaining the security of a publlc

office against attack, interference, or sabotage;(b) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or

respond to acts of terrorism, including any of the following:(i) Those portions of records containing speclflc and unique vulnerability assessments or specific and

unique response plans either of which Is Intended to prevent or mitigate acts of terrorism, and communicationcodes or deployment plans of law enforcement or emergency response personnel;

(fi) Specific intelligence information and specific investigative records shared by federal and international

http://www.dot.state.oh.us/Divisions/ChiefI-.ep;ai/Pages/PItR.aspx 2/4/2009

t agi.a - I i^r^

law enforcement agencies with state and local law enforcement and public safety agencies;(iii) National security records classified under federal executive order and not subject to public disclosure

under federal law that are shared by federal agencles, and other records related to national securlty brieFngs toassist state and local government with domestic preparedness for acts of terrorism.

(c) A school safety plan adopted pursuant to sectfon 3313.536 [3313.53.6] of the Revised Code.

Selection DevicesCertain selection devices used in making hiring and promotional decisions may be redacted or denied.

The Ohio Department ot TranepurteUon1960 West Broad Street. Columbus Ohto, 43223Ted $ldckisnd, Governor I Jolene M, Molltons, 000T Directorprivapy Statement I Advanced Search I Feedback

http://www.dot.state.oh.us/Divisions/ChiefLegaUPages/PRR.aspx 2/4/2009

Standard Procedures No. 150-001(SP)

Effective: September 29, 2007

Responsible Division, Chief Legal CounselSupercedes: WR303Supercedes: 150-001(SP) dated 10/1103

PROCEDURE FOR'IHE HANDLING OF PUBLIC RECORD REQUESTS

PROCEDURAL STATEMENT:

This policy is designed to assist those individuals responsible for handling public recordrequests. The purpose of this policy is ensure that those individuals are complying withthe law regarding public records.

AUTHORITY:

Ohio Revised Code § 149.43

SCOPE:

All districts, divisions and offices of the Ohio Department of Transportation (ODOT).

BACKGROUND AND PURPOSE:

The purpose of this policy is to ensure that all public record requests are handled in atimely and uniform manner at ODOT. This policy supercedes all previous policiesconcerning public record requests.

DEFINITIONS:

Public Record: Any document, device, or item, regardless of physical form orcharacteristic that is also created by a public office, received by a public office, or comingunder the jurisdiction of any public office and which serves to document the organization,functions, policies, decisions, procedures, operations, and other activities of the office.

Exception: Certain documents, or portions of documents in the possession of ODOT areexempt from disclosure under state or federal law.

Reauestor: Person who makes a public records request.

Standard Procedure No: 150-001(SP)Effective: September 29, 2007Page 2 of 4

TRAINING:

R.C. 149.43(E)(1) requires that all elected officials or their appropriate designees shallattend training approved by the attorney general.

FISCAL ANALYSIS:

Implementation of this policy will have no fiscal impact upon the Department.

IDENTIFICATION OF A PUBLIC RECORD:

A. A public record is any record stored on a fixed medium such as paper, computer,or film. Ln order to constitute a°public record" the record must serve to docnmentthe organization, functions, policies, decisions, procedures, operations, or otheractivities of ODOT. The following are examples of records exempt fromdisclosure under the public records act:

1. Cost estimates of projects until all bids received, R.C. 5525.15.

2. Information relativa to bidder qualifications, R..C. 5525.04.

3. Sealed bids for construction projects, R.C. 5525.10.

4. Trade secrets, R.C. 1333.61(D).

5. Employee medical records, R.C. 149.43 (A).

6. Social Security numbers, R.C. 149.43 (A).

7. Certain selection devices used in making hiring and promotional decisions,R.C. 124.09(B).

8. Certain communications between ODOT employees and an attorney within thestaff of ODOT's Office of Chief Legal Counsel, the Attorney General, orspecial counsel appointed by the Attorttey General, R.C. 149.43(A).

9. Files on current administrative investigations, R.C. 149.43 (A)(2).

Standard Procedure No.: 150-001EfFective: September 29, 2007Page 3 of 4

10. Home addresses and home telephone numbers of state employees per State exrel. Dispatch Printing Ca, v. Johnson (2005) 106 Ohio St.3d 160.

11. Any records created or maintained by the ODOT for security purposes andinfrastructure records that disclose the confrguration of the Department'scritical systems, including but not limited to, communicauon, computer,electrical, mechanical, ventilation, water, plumbing systems or security codes.This does not mean a simple floor plan that discloses the physical location ofthe components of the office, R.C. 149.433.

PROCEDURES:

A. Public records requests may be written or oral. If the public record request is aroutine request and you have received similar requests in the past, you mayrespond to the request without contacting the Office of Chief Legal Counsel. If therequest is unusual or you suspect the records request may be related to litigationinvolving ODOT, contact the Office of Chief Legal Counsel for direction.

1. ODOT must designate a records custodian or records manager for each districtand central office. The records custodian must acknowledge receipt of a copyof the public records policy.

2. ODOT must have a copy of its current retention schedule available to thepubHc at a location readily available to the public. The Office of Chief LegalCounsel recommends keeping a copy of the retention schedule at the front deskof each district as well as central office.

,B. Acknowledge receipt of the request verbally or in writing. You can ask therequestor to put the request in writing, however, if they decline, you ntust honorthe verbal request.

1. If you believe it would help ensure the accuracy of your response, you may askfor the requestor's identification and intended use but only after you inform therequestor that they are not obligated to give you this information.

2. If a request is ambiguous or overly broad, you must give the requestor anopportunity to revise the request and explain how the records are maintainedand accessed at ODOT. The Office of Chief L.egal Counsel recommendsasking what type of information is being sought if you need clarification on arequest.

Standard Procedure No.: 150-001Effective: September 29, 2007Page 4 of 4

3. If the requested record contains information that is exempt (as listed above),the Department must make available to the requestor the portion of the recordthat is not exempt and clearly redact the exempt portion of the record.

4. A redaction of any portion of the record is considered a denial of the request.

5. If a request is denied in whole or in part (by redaction), the Department mustprovide the requestor with an explanation of the denial, which includes thelegal authority for the denial. If the original request was in writing, theexplanation of the denial must also be in writing.

C. Documents must be promptly prepared and made available for inspection. lf therequestor wants copies of the documents, you may respond by electronic mail or

nther means if rhe reqquestor has no objection. if the requestor ^vants hard copies,the standard charge is 5 cents per page. You may charge 50 cents per page if thecopies are larger then 8 1/2 X 11. Postage may be included in the charges. Thecopying fee may be waived for requests under 10 pages.

1. You may require prepayment of the cost involved in providing the copy of thepublic record.

2. The requestor is permitted to choose to have the public record copied on paperor upon any other medium in which it can reasonably be duplicated.

D. Public records requests must be responded to within a reasonable amount of time.What is a reasonable amount of time depends upon such factors as the extent ofthe request and physical location of the documents.

E. Each district, department, or division within ODOT should keep a record of whenthe request was received and when the requested documents were provided to therequestor.

DATE

NAMBADDRESS LINE 1ADDRESS LINE 2ADDRESS LINE 3


Dear NAME,

This letter is in response to your public records request dated DATE. In your letter, yourequested copies of the following documents: " ".

[Some of] The documents you requested are exempt from disclosure under the public recordsact. Under the Ohio Revised Code § 149.43(A), certain communications between the OhioDepartment of Transportation ("ODOT") employees and an attorney within ODOT's Office ofChief Legal Counsel, the Ohio Attorney General, or outside counsel appointed by the AttorneyGeneral are exempt from disclosure. Therefore, we are unable to provide you with [some of] thedocuments you have requested.

Sincerely,

DATE

NAMEADDRESS L1NE 1ADDRESS LIIVE 2ADDRESS LINE 3


Dear NAME,


These documents are exempt from disclosure under the public records act. Under Obio RevisedCode § 5525.04, information relative to bidder qualifications is exempt from disclosure.Therefore, we are unable to provide you with [some ofJ the documents you have requested.

Sincerely,

DATE

NAMEADDRESS LINE 1ADDRESS LINE 2ADDRESS LINE 3


Dear NAME,

This letter is in response to your public records request dated DATE. In your letter, you requestcopies of the following documents: " ".

The documents you requested are exempt from disclosure under the public records act. Underthe Ohio Revised Code § 149.43(A)(2), files on current administrative investigations are exemptfrom disclosure, Therefore, we are unable to provide you with the documents you haverequested.

Sincerely,

DATE


Re; Piublic Records Request

Dear NAME,

This letter is in response to your public records request dated DAT'E. In your letter, yourequested copies of the following documents: "".

[Some ofJ The information you requested are exempt from disclosure under the public recordsact. Pursuant to State .$x. Ret. Dispatch Printing Co. v. Johnson 106 Dhio St.3d. 160 (2005),home addresses and home telephone numbers of state employees are not considered a publicrecord. Therefore, we are unable to provide you with [some of] the information you haverequested.

Sincerely,

DATE



Dear NAME,

This letter is in response to your public records request dated DATE. In your letter, yourequested copies of the following documents: "".

Your request, which seeks "any and all information [documents,] [records]," lacks specificityand particularity, As such, this portion of your request is improper, pursuant to Stale Ex. Rel.Dilleiy v. Icsman, et.al, 92 Ohio St. 3d. 312 (2001). Please reformulate your request to identifythe specific documents you wish to receive.

Sincerely,

DATE

NAMEADDRESS LINE 1ADDRESS L1NE 2ADDRESS LINE 3


Dear NAME,


These documents are exempt from disclosure under the public records act. Under the OhioRevised Code § 149.43(A), employee medical records are exempt from disclosure. Therefore,we are unable to provide you with the documents you have requested.

Sincerely,

DATE

NAMEADDRESS LTNE IADDRESS LINE 2ADDRESS C,INE 3


Dear NAME,


These documents are exempt from disclosure under the public records act.* Under Ohio RevisedCode § 5525.15, cost estimates are exempt from disclosure until all bids have been received.Therefore, we are unable to provide you with [some of] the documents you have requested.

Sincerely,

*Please note, that we may release this information to a local govemment authority who isparticipating in the cost.

DATE



Dear NAME,

This letter is in response to your public records reqttest dated DATE. In your letter, yourequested copies of the following documents: "".

These documents are exempt from disclosure under the public records act. Under Ohio RevisedCode § 5525.14, sealed bids for construction projects are exempt from disclosure. Therefore, weare unable to provide you with [some ofj the doctunents you have requested.

Sincerely,

DATE

NAMEADDRESS LINE IADDRESS LINE 2ADDRESS LINE 3


Dear NAME,


The documents you requested are exempt from disclosure under the public records act. UnderOhio Revised Code § 149.433, the Ohio Department of Transportation security and infrastructurerccords* are exempt from disclosure. In addition, infrastructure records that disclose theconfiguration of critical systems are exempt from disclosure. Therefore, we are unable to provideyou with [sotne off the documents you have requested.

Sincerely,

*§ 149.433. (A)(2) "infrastructure record" means any record that discloses the configuration of a public office's orchartered nonpublic school's critical systems including, but not limited to, communication, computer, electrical,ntechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure or structuralconfiguration of the building in which a public office or chartered nonpublic school is located. "Infrastructurerecord" does not mean a simple floor plan that discloses only the spatial relationship of components of a publicofftee or chartered nonpublic school or the building in which a public office or chartered nonpublic school islocated.

§ 149.433. (A)(3) "3eeurity record" means any of the following:(a) Any record that contains information directly used for protecting or maintaining the security of a public

office against attack, interference, or sabotage;(b) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or

respond to acts of terrorism, including any of the following:(i) Those portions of records containing specific and unique vulnerability assessments or specific and unique

response plans either of which is intended to prevent or mitigate acts of terrorism, and communication codes ordeployment plans of law enforcement or emergency response personnel;

(ii) Specitic intelligence information and specific investigative records shared by federal and intemational lawenforcement agencies with state and local law enforcement and public safety agencies;

(iii) National security records classified under federal executive order and not subject to public disclosureunder federal law that are shared by federal agencies, and other records related to national security briefings to assiststate and local government with domestic preparedness for acts of terrorism.

(c) A school safety plan adopted pursuant to section 3313.536 [3313.53.61 of the Revised Code.

DATE



Dear NAME,


These documents are exempt from disclosure under the public records act. Under Ohio RevisedCode § 124.09(B), certain selection devices used in making hiring and promotional decisions areexempt from disclosure. Therefore, we are unable to provide you with [some off the documentsyou have requested.

Sincerely,

DATE



Dear NAME,


Some of the information in these documents are exempted from disclosure under the publicrecords act. Under State ex rel. Beacon Journal Publ. Co. v. City ofAkron, 68 Oh. St.3d 40(1992) and the Ohio Revised Code § 149.43(A), social security numbers are exempt fromdisclosure. Therefore, we are unable to provide you with some of the information you haverequested.

Sincerely,

OHIO DEPARTMENT OF T RANSPORTAT{OFJ

CENTRAL OFFICE • 1980 WEST BROAD STREET • COLUMBUS, OH 43223

TED STRICKLAND, GOVERNOR • JOLENE M. MOLITORIS, DIRECTOR

February 13, 2009

Via: U.S. Mail

Marion H. Little, Jr.Zeiger, Tigges & Little LLP3500 Huntington Center41 South High StreetColumbus, Ohio 43215


Dear Mr. Little:

In Christopher Hogan's letter dated October 17, 2008, Ivl-r. Hogan reclaested to inspect the :following documents:

(1) The files containing complete cost estimates/projections for Prbject No. 080507, PIDNo. 78570, CLI-SR 73-8.34 (the "Wilmington Bypass projectt');

(2) The files containing research, data, studies, communications, or other inforrtlationwith respect to the use of different pavement markings and pavement markingmaterials specified in Table 397-1 of ODOT's Traffic Engineering Manual on asphaltversus concrete pavement;

(3) The files containing documents, correspondence, and/or other documentation witlirespect to ODOT's decision to require different pavement parking systems for asphaltand concrete alternative bids for the Wilmington Bypass project;

(4) The files containing documents reflecting any calculations of amounts paid and/orsaved by ODOT in the current fiscal year under Item 401.20 of ODOT's Constructionand Materials' specifications; i.e. the "Asphalt Binder Price Adjustment";


(6) E-mails to or from ODOT Director James Beasley, ODOT Deputy Director BillLindenbaum and/or District 8 Deputy Director Hans Jindal, specifically referencingor relating to the Wihnington Bypass project, from conception to present;

(7) Since April 1, 2008, e-mails (or other documents memorializing correspondence)between any ODOT employee and: (a) the John R. Jurgensen Companies; (b) the E.S.Wagner Co.; and (c) Flexible Pavements of Ohio;

EXHIBIT

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(8) The files containing life cycle cost analysis, and supporting documentation, for theWilmington Bypass project from conception to present; and

(9) The files containing coniplete change orders, and supporting documentation, for thefollowing ODOT Project Numbers: (a) 040294; (b) 050108; (c) 060117; (d) 060087;and (e) 060150.

In my previous letter, I responded that there were no documents responsive for your fourthrequest for: "[t]he files containing documents reflecting any calculations of amounts paid and/orsaved by ODOT in the current fiscal year under Item 401.20 of ODOT's Construction andMaterials' specifications; i.e. the "Asphalt Binder Price Adjustment." Subsequent to ourresponse to you I discovered that we do have a list entitled "Bituminous Price Adjustments." Ihave provided this list for Piscal Year 2008 and Fiscai Year 2009 on the attached CD.

The enclosed CD also contains responsive information for your sixth request for "e-mails to orfrom ODOT Director James Beasley, ODOT Deputy Director Bill Lindenbaum and/or District 8Deputy Director Hans Jindal, specifically referencing or relating to the Wilmington Bypassproject, from conception to present." Please be advised that 141 emails were redacted due toattorney client privilege in accordance with Ohio Revised Code § 149.43(A). In the spirit ofcooperation, I can tell you that the majority of these redacted email communications involvedenvironmental litigation that ODOT was involved with for this project.

I have also attached an Excel spreadsheet with information responsive to your ninth request for:"[t]he files containing complete change orders, and supporting documentation, for the followingODOT Project Numbers: (a) 040294; (b) 050108; (c) 060117; (d) 060087; and (e) 060150."Please advise if this information sufficiently answers your request or if you are still interested ininspecting or receiving copies of the project documents.

Sincerely,


cc: R. MakowskiC. Perkins

e^r..r.vea w.... ....... ..... ei.ûrr.î ^r.ioi .,oya.

OHIO DEPARTMENT OF TRANSPORTATION

CENTRAL OFFICE • 1980 WEST BROAD STREET • COLUMBUS, OH 43223

TED STRICKLAND, GOVERNOR • JOLENE M. MOLITORIS, DIRECTOR

February 11, 2009

Via: FacsitnileU.S. Mail

Marion H. Little, Jr.Zeiger, Tigges & Littie LLP3500 Huntington Center41 South High StreetColumbus, Ohio 43215


Dear Mr. Little:

In Christopher Hogan's letter dated October 17, 2008, Mr. Hogan requested to inspect thefollowing docnments:

(1) The files containing complete cost estimates/projections for Project No. 080507, PIDNo. 78570, CLI-SR 73-8.34 (the "Wilmington Bypass project");

(2) The files containing research, data, studies, communications, or other informationwith respect to the use of different pavement markings and pavement markingmaterials speoified in Table 397-1 of ODOT's Traffic Engineering Manual on asphaltversus concrete pavement;

(3) The files containing documents, correspondence, and/or other documentation withrespect to ODOT's decision to require differant pavement parking systems for asphaltand concrete altemative bids fnr the Wilmington Bypass project;

(4) The files containing documents reflecting any eaioulations of amounts paid and/orsaved by ODOT in the current fiscal year under Item 401.20 of ODOT's Constructionand Materials' specifications; i.e. the "Asphalt Binder Price Adjustment";


EXHIBIT

H

02/11/2009 WED 11:12 FAX 6143877431 Chief Legal

(6) E-mails to or $nm ODOT Director James Beasley, ODOT Deputy Director BillLindenbaum and/or District 8 Deputy Direetor Hans Jindal, specifically referencingor relating to the Wihnington Bypass project, from conception to present;

(7) Since Apri11, 2008, e-mails (or other documents memorializing correspondence)between any ODOT employee and: (a) the John R. Jurgensen Companies; (b) the E.S.Wagner Co.; and (c) Flexible Pavements of Ohio;

(8) The files containing life cycle cost analysis, and supporting documentation, for theWilmington Bypass project from conception to present; and

(9) The files containing complete change orders, and supporting documentation, for thefollowing ODOT Project Numbers: (a) 040294; (b) 050108; (c) 060117; (d) 060087;and (e) 060150.

ODOT will address each request made. In response to your first request for: "[t]he files

containing compl.ete cost estimates/projections for Project No. 080507, PID No. 78570, CLI-SR73-8.34 (the "Wilmington Bypass project")," ODOT made the District cost estimates avaiiable

on December 18, 2008 for inspection and copying.

There are no,documents responsive to your second request for: "[t]he files containing research,data, studies, communications, or other information with respect to the use of different pavement

markings and pavement marking materials specified in Table 397-1 of ODOT's TrafficEngineering Manual on asphalt versus concrete pavement "

There are no documents responsive to your third request for: "[t]he files containing documents,correspondence, and/or other documentation with respect to ODOT's decision to requiredifferent pavement parking systems for asphalt and concrete alternative bids for the WiL-ningtonBypass project."

There are no documents responsive for your fourth request for: "[t]he files containing documentsreflecting any calculations of aniounts paid and/or saved by ODOT in the current fiscal yearunder Item 401.20 of ODOT's Construction and Materials' specifications; i.e. the "AsphaltBinder Price Adjustment "

In response to your fifth request, "[t]he complete correspondence file(s) for the WilmingtonBypass project for both ODOT's headquarters and ODOT's District 8 office," ODOT feels wehave provided this information for inspection on December 18, 2008; however, we are checlcingwith the Office of Environmental Services to confirm that all documents were made available atthe District Office.

The Office of Chief Legal Counsel is currently reviewing your sixth request for "e-mails to orfrom ODOT Director James Beasley, ODOT Deputy Director Bill Lindenbaum and/or District 8Deputy Director Hans Jindal, specifically referencing or relating to the Wilmington Bypassproject, from conception to present." Please be advised that there were over 2000 potential

U1/11/LUuY WC:u 11;1L lAx b1a3H71411 criiet Legal

responsive documents that are being reviewed prior to release and we are reviewing them as timepermits given the workload of the department.

Please note, your seventh request for the following information: "[s]ince April 1, 2008, e-mails(or other documents memorializing correspondence) between any ODOT employee and: (a) theJohn R. Jurgensen Compariies; (b) the E.S. Wagner Co.; and (c) Flexible Pavements of Ohio," isoverbroad and lacks specificity and particularity. The law does not require the Ohio Departmentof Transportation to determine all employees, agents or representatives of the above referencedcompanies for documents that may be responsive, please see State ex rel. Oriana House, Inc, v.I3etty D. Montgomery, 2005-Ohio-3377 (1(P Dist. June 30, 2005).

The information requested in your eighth request for: "[t]he files containing life cycle costanalysis, and supporting documentation, for the Wilmington Bypass project from conception topresent," was provided for inspection and oopying on December 18, 2008.

ODOT is in the process of gathering the responsive information for your ninth request for: "[t]hefiles containing complete change orders, and supporting documentation, for the following ODOTProjectNumbers: (a) 040294; (b) 050108; (c) 060117; (d) 060087; and (e) 060150."

Sincerely,


cc: R. MakowskiC. Perkins