Anderson v. Greater Cleveland Regional Transit Auth. , 2018 Ohio 3653 ( 2018 )


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  • [Cite as Anderson v. Greater Cleveland Regional Transit Auth., 2018-Ohio-3653.]
    JASON A. ANDERSON                                     Case No. 2018-00593PQ
    Requester                                      Special Master Jeffery W. Clark
    v.                                             REPORT AND RECOMMENDATION
    GREATER CLEVELAND REGIONAL
    TRANSIT AUTHORITY
    Respondent
    {¶1} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of
    records under R.C. 2743.75 if the court of claims determines that a public office has
    denied access to public records in violation of R.C. 149.43(B). The policy underlying the
    Act is that “open government serves the public interest and our democratic system.”
    State ex rel. Dann v. Taft, 
    109 Ohio St. 3d 364
    , 2006-Ohio-1825, 
    848 N.E.2d 472
    , ¶ 20.
    Therefore, the Act is construed liberally in favor of broad access, and any doubt is
    resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 
    119 Ohio St. 3d 391
    , 2008-Ohio-4788, 
    894 N.E.2d 686
    , ¶ 13. Claims under R.C. 2743.75 are
    determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp.,
    5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.
    {¶2} On January 18, 2018, January 23, 2018,1 and March 29, 2018, requester
    Jason Anderson and representatives acting on his behalf made 94 public records
    requests to respondent Greater Cleveland Regional Transit Authority (RTA). (Complaint
    at 2-15; Response, Exh. B.) The RTA provided thousands of pages of responsive
    records, noted that several of the requests were overly broad, and indicated that it had
    1 Anderson attached a request dated January 16, 2018 from Robert Smith, III. The RTA attached
    an identical request, except for a January 23, 2018 date of creation and receipt. The RTA’s
    correspondence with Anderson references the January 23, 2018 date. Although the dates do not affect
    the analysis significantly, the January 23, 2018 date is supported by the greater weight of evidence.
    Case No. 2018-00593PQ                     -2-     REPORT AND RECOMMENDATION
    no records responsive to some requests. (Response at 2, 5-6; Jackson Aff. at ¶ 5-17;
    Exhs. C-E, G, I.)
    {¶3} On April 4, 2018, Anderson filed a complaint under R.C. 2743.75 alleging
    public records access violations by the RTA. The complaint failed to attach the
    responses of the RTA as required by R.C. 2743.75(D)(1), or to state with clarity how
    access to public records had been denied. The court directed Anderson to submit an
    amended complaint separately listing each request for which he was seeking relief and
    referencing the request letter(s) in which it was made. (April 9, 2018, Order.) On
    April 27, 2018, Anderson filed an amended complaint in which he alleged that the RTA
    had failed to make records available within a reasonable period of time with respect to
    fourteen of the original 94 requests. R.C. 149.43(B)(1). (Am. Complaint at 2-3.) On
    July 11, 2018, the court was notified that the case had not been fully resolved in
    mediation. On July 24, 2018, the RTA filed its response to the amended complaint
    (Response) asserting that under the facts and circumstances of this case it had
    provided records within a reasonable period of time. On August 13, 2018, Anderson
    filed a reply.
    Requirement to Provide Records Timely
    {¶4} A public office must “promptly” prepare records if inspection is requested,
    and must provide copies “within a reasonable period of time.” R.C. 149.43(B)(1).
    “Promptly” means “without delay and with reasonable speed” and its meaning “depends
    largely on the facts in each case.” State ex rel. Wadd v. Cleveland, 
    81 Ohio St. 3d 50
    ,
    53, 
    689 N.E.2d 25
    (1998). Similarly, “reasonable period of time” is evaluated based on
    the facts and circumstances of each case. State ex rel. Shaughnessy v. Cleveland, 
    149 Ohio St. 3d 612
    , 2016-Ohio-8447, 
    76 N.E.3d 1171
    , ¶ 8-22. See also State ex rel.
    Cincinnati Enquirer v. Pike Cty. Coroner’s Office, 
    153 Ohio St. 3d 63
    , 2017-Ohio-8988,
    
    101 N.E.3d 396
    , ¶ 58; State ex rel. Morgan v. Strickland, 
    121 Ohio St. 3d 600
    , 2009-
    Ohio-1901, 
    906 N.E.2d 1105
    , ¶ 10, 16-17. A public office is not required to respond to
    Case No. 2018-00593PQ                              -3-       REPORT AND RECOMMENDATION
    all public records requests within any arbitrary number of days. 
    Shaughnessy, supra
    , at
    ¶ 14-15.
    {¶5} The requests at issue were made on January 23, 2018 by Anderson’s
    counsel, Robert Smith, III. (Response, Exh. B; Complaint at 2-5.) Anderson references
    fourteen specific requests2 from Smith’s letter as having not been turned over in a
    reasonable amount of time. (Am. Complaint at 2-3.) In response, the RTA provides the
    following testimony from Associate Counsel Jennifer B. Jackson, who supervised its
    responses to the requests at issue:
    By February 26, 2018, GCRTA had responded to all of Attorney Smith’s
    public records requests from January 23, 2018. The response included
    1284 pages of records from the files of 30 TP officers, including video and
    audio files. A true and correct copy of GCRTA’s response (excluding the
    records themselves) is attached as Exhibit E.
    (Jackson Aff. at ¶ 14.) Anderson does not directly contradict Jackson’s account, stating
    instead:
    The initial request for the records listed was on 1/16/2018 by my Attorney
    Robert Smith III. I resubmitted an additional request listing the same
    requests on 03/29/2018. April 26, 2017 [sic] made 100 days since the
    requests were made along with the additional records requests that were
    submitted by myself.
    (Reply at 2.) Anderson appears to allege that he had not received all records responsive
    to both Smith’s letter, and Anderson’s March 29, 2018 letter, by April 26, 2018. Although
    Anderson states that he “resubmitted an additional request listing the same requests on
    03/29/2018” as the Smith request (Id.), comparison of the two letters shows that Smith
    requests Nos. 2, 3, 9, 10, 13, 15, 18, 20, and 29 are not repeated in Anderson’s March
    29, 2018 letter. Of the five Smith requests that do correspond to requests in the March
    29, 2018 letter, one has no overlap as to the records requested, and none are identical.
    (Compare Smith requests Nos. 8, 11, 14, 24 [sic], and 28 [sic] with Anderson requests
    2Anderson references incorrect paragraphs in Smith’s letter for the last three requests. Instead of
    24, 28 and 29, the subject matter described for these requests is found in paragraphs 27, 31 and 32.
    Case No. 2018-00593PQ                       -4-     REPORT AND RECOMMENDATION
    Nos. 7, 24, 27, 16, and 26.) Therefore, Anderson’s statement regarding the RTA’s
    collective response to both letters is not necessarily inconsistent with Jackson’s
    testimony that the responses to the Smith requests that form the basis of Anderson’s
    claim    were   completed    on   February 26, 2018.   In   determining   the   facts   and
    circumstances of this case, Anderson’s largely inaccurate statement does not amount to
    clear and convincing evidence that the RTA’s response to the January 23, 2018
    requests took any longer than the period stated by Jackson. The RTA has established
    by affidavit that the responsive records were provided within twenty-three business
    days, and Anderson fails to rebut this assertion with any evidence showing a genuine
    issue of fact. See Strothers v. Norton, 
    131 Ohio St. 3d 359
    , 2012-Ohio-1007, 
    965 N.E.2d 282
    , ¶ 13, 22-23 (uncontroverted affidavit established compliance, and requester did not
    submit the requisite clear and convincing proof to the contrary). See also State ex rel.
    Fant v. Flaherty, 
    62 Ohio St. 3d 426
    , 427, 
    583 N.E.2d 1313
    (1992); State ex rel. Mun.
    Constr. Equip. Operators’ Labor Council v. Cleveland, 8th Dist. Cuyahoga No. 83057,
    2004-Ohio-1261, ¶ 9.
    {¶6} In defending this response time as reasonable, the RTA asserts that it
    received hundreds of other public records requests in 2017 and 2018, and that “[d]ue to
    the sensitivity of peace officer records, it is GCRTA’s practice to permit affected TP
    officers to review what GCRTA is releasing in response to public records requests.”
    (Response at 4, 5, fn. 6; Jackson Aff. at ¶ 12-13, 18.) However, the fact that a public
    office deals with many other public records requests is not an acceptable excuse for
    delay:
    Respondents emphasize that Cleveland faces a “volume of reports
    that would undoubtedly overwhelm * * * smaller communities.” These
    assertions, however, do not absolve respondents’ failure to act with the
    requisite promptness in preparing and providing access to accident
    reports because “‘no pleading of too much expense, or too much time
    involved, or too much interference with normal duties, can be used by the
    respondent to evade the public’s right to inspect and obtain a copy of
    public records within a reasonable time.’” State ex ref. Fox v. Cuyahoga
    Case No. 2018-00593PQ                      -5-     REPORT AND RECOMMENDATION
    Cty. Hosp. Sys. (1988), 
    39 Ohio St. 3d 108
    , 111, 
    529 N.E.2d 443
    , 446,
    quoting State ex ref. Beacon Journal Publishing Co. v. Andrews (1976), 
    48 Ohio St. 2d 283
    , 289, 
    2 Ohio Op. 3d 434
    , 437, 
    358 N.E.2d 565
    , 569.
    Wadd v. 
    Cleveland, supra, at 53-54
    . Likewise, no Ohio case holds that an office practice
    of permitting employees to review personnel files before release may be used to excuse
    delay in producing the records. Therefore, these factors will not be taken into account in
    determining whether the RTA responded within a reasonable period of time.
    {¶7} The RTA further noted that peace officer personnel files are subject to more
    public records exceptions than typical employee files, that personnel files of retired or
    former RTA peace officers were archived in offsite storage facilities and had to be
    ordered back from storage, and that the records were evaluated by legal staff to
    determine that appropriate redactions had been made and justified. (Response at 6;
    Jackson Aff. at ¶ 9, 11.) These are relevant factors in evaluating timeliness. Public
    offices may take the time reasonably necessary to retrieve, analyze, and redact
    requested records, including time to secure legal advice. 
    Shaughnessy, supra
    , at ¶ 12,
    22; State ex rel. Patituce & Assocs. v. Cleveland, 8th Dist. Cuyahoga No. 104837,
    2017-Ohio-300, ¶ 9-10 (January 20, 2017) (police personnel files). Finally, the RTA
    commenced this process immediately on receipt of Smith’s request letter; that is,
    without delay. (Response at 5, Jackson Aff. at ¶ 6.)
    {¶8} Anderson and his representatives made voluminous, overlapping requests
    that required clarification, off-site retrieval, scanning to .pdf format for the requested
    email delivery, and legal counsel’s review of thousands of pages of law enforcement
    records. (Response at 2, 5-6; Jackson Aff. at ¶ 5-14; Exhs. B, F, H.) In Shaugnessy, a
    case involving requests for searches for types of criminal offenses and careful review of
    law enforcement records, the Supreme Court found that response times of 12 to 31
    business days for each such request was reasonable. 
    Id. at ¶
    17, 19, 21. See also
    Patituce at ¶ 2, 7-10 (75 calendar days to provide personnel records of nine
    Gang Impact Unit employees was found to be a reasonable period of time). I find that
    Case No. 2018-00593PQ                       -6-     REPORT AND RECOMMENDATION
    under the facts and circumstances of this case the 23 business days taken by the RTA
    to provide records responsive to Smith’s requests was a reasonable period of time.
    {¶9} Although some wording in the amended complaint remains confusing, I find
    that Anderson specifically listed only the fourteen requests evaluated above as the
    basis for his claim. His general reference to one of the additional request letters, from
    March 29, 2018 (Am. Complaint at 3), does not specify any individual request for which
    he claims untimely response, and thus did not satisfy the court’s order to provide a short
    and plain statement showing that he is entitled to relief. Civ.R. 8(A). However, even
    were the court to consider Anderson’s March 29, 2018 requests, the RTA submitted
    testimony that the responsive records thereto were provided by May 10, 2018.
    (Jackson Aff. at ¶ 15-17.) The response time for the March 29, 2018 requests was thus
    29 business days. Under the facts and circumstances of the case, this response was
    reasonable for the same reasons stated above.
    Conclusion
    {¶10} Upon consideration of the pleadings and attachments, I recommend that
    the court issue an order DENYING Anderson’s claim that the RTA failed to provide
    requested public records within a reasonable period of time.
    {¶11} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
    with the clerk of the Court of Claims of Ohio within seven (7) business days after
    receiving this report and recommendation. Any objection shall be specific and state with
    particularity all grounds for the objection. A party shall not assign as error on appeal the
    court’s adoption of any factual findings or legal conclusions in this report and
    recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
    JEFFERY W. CLARK
    Special Master
    Filed August 21, 2018
    Sent to S.C. Reporter 9/10/18
    

Document Info

Docket Number: 2018-00593PQ

Citation Numbers: 2018 Ohio 3653

Judges: Clark

Filed Date: 8/21/2018

Precedential Status: Precedential

Modified Date: 9/12/2018