State ex rel. Bott Law Group, L.L.C. v. Ohio Dept. of Natural Resources , 2013 Ohio 5219 ( 2013 )

[Cite as State ex rel. Bott Law Group, L.L.C. v. Ohio Dept. of Natural Resources, 2013-Ohio-5219.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Bott Law Group, LLC,
:
Relator,
: No. 12AP-448
v.
: (REGULAR CALENDAR)
Ohio Department of
Natural Resources, :
Respondent. :
D E C I S I O N
Rendered on November 26, 2013
Bott Law Group, LLC, April R. Bott, Sarah L. Herbert, and
MacDonald W. Taylor, for relator.
Michael DeWine, Attorney General, Robert Moormann and
Jeffrey Clark, for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
{¶ 1} Relator, Bott Law Group, LLC, brings this original action seeking a writ of
mandamus ordering respondent, the Ohio Department of Natural Resources ("ODNR"),
to provide it with copies of all non-exempt public records that are responsive to its
May 17, 2011, October 11, 2011, and February 3, 2012 public records requests. In addition,
relator seeks damages in the form of the attorney fees and court costs associated with this
action.
No. 12AP-448 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Relator is a law firm that represents energy companies and municipalities
involved in horizontal drilling for oil and gas, commonly known as "fracking." ODNR is
the primary oil and gas regulatory and enforcement authority in Ohio.
{¶ 3} In 2010, two of relator's clients, Patriot Water Treatment LLC ("Patriot"),
and the city of Warren, Ohio ("Warren") obtained fracking permits from the Ohio
Environmental Protection Agency ("OEPA"). Relator subsequently commenced
proceedings on behalf of Patriot and Warren in both the Environment Review Appeals
Commission and the Trumbull County Court of Common Pleas, challenging certain
provisions in the permits, which according to relator, represent a "devastating [OEPA]
policy change." (Relator's brief, 2.)
{¶ 4} In connection with the litigation, relator served several public records
requests upon ODNR seeking information relevant to the ongoing litigation. On May 17,
2011, relator, on its own behalf, submitted its first request seeking responsive documents
"from January 1, 2009 to present."1 ODNR forwarded the request for review to Charles
Rowan, ODNR's chief legal counsel.
{¶ 5} On June 6, 2011, Rowan responded to the request by sending responsive
records to relator via U.S. mail. Thereafter, on June 30, 2011, Rowan supplemented
ODNR's response by providing relator with a compact disc containing additional
responsive records. According to relator, copies of approximately 300 pages of responsive
records were provided to relator.
{¶ 6} Relator served a second public records request upon ODNR on October 27,
2011, via electronic mail ("e-mail"). The second request was similar to the first except
that, in the second request, relator sought copies of all responsive records "from May 1,
2011 to present." According to ODNR, relator's second public records request added
additional "broad and sweeping requests." (ODNR's brief, 10.) In a November 1, 2011
letter to relator, Rowan stated: "With respect to your bulleted requests, please be advised
1 Relator served a total of seven public records requests during the relevant time period. However, only
three of those requests are at issue in this case. Additionally, because the magistrate's decision contains the
text of relator's three relevant public records requests, we will not reproduce them herein.
No. 12AP-448 3
they lack clarity, are over inclusive, and require what would be a complete duplication of
ODNR's files relative to specifically identified names and topics." (Stipulated Evidence,
exhibit No. 6.) Relator, by and through MacDonald W. Taylor, responded to Rowan with
an e-mail requesting that ODNR "identify any aspect of my request that you feel lacks
clarity, so that I can assist you in clarifying it." (Stipulated Evidence, exhibit No. 7.)
Rowan did not respond to the e-mail. However, on November 10, 2011, and again on
November 23, 2011, ODNR sent responsive records to relator via U.S. mail. A total of 460
pages of responsive records were forwarded to relator pursuant to the October 27, 2011
request.
{¶ 7} On February 3, 2012, relator served a third public records request upon
ODNR employees Beth Wilson and Tom Tomastik. Relator subsequently served the same
request upon Rowan on February 6, 2012. On March 5, 2012, Rowan forwarded 35
responsive records to relator via U.S. mail.
{¶ 8} On April 10, 2012, relator and the Ohio Attorney General deposed John
Husted, the former chief of ODNR's Division of Mineral Resources Management
("DMRM"). During the deposition, Husted produced an e-mail correspondence dated
July 21, 2009. According to relator, although Husted's e-mail was clearly responsive to
relator's May 17, 2009 public records request, ODNR had failed to produce the e-mail in
response to relator's request.
{¶ 9} When relator inquired of ODNR about the e-mail, Rowan informed relator
that Husted's 2009 records were "beyond the department's records retention schedule for
email correspondence (2 years)." (Stipulated Evidence, exhibit No. 18, at 2.) Relator
responded that Husted's e-mail was generated within two years of relator's May 17, 2011
public records request, and that it should have been produced. Thereafter, on April 19,
2012, Rowan delivered a compact disc to relator containing an additional 1,200
responsive documents, roughly 7,000 pages. ODNR produced two additional records to
relator on May 1, 2012. (Stipulated Evidence, exhibit No. 20; Relator's Certified Evidence,
exhibit No. 35.)
No. 12AP-448 4
{¶ 10} On May 25, 2012, relator filed an original action in this court seeking a writ
of mandamus ordering ODNR to provide it with copies of all non-exempt records that are
responsive to the "May 17 Request, October 11 Request, and the February 3 Request,
including documents from the ODNR Oil and Gas program, the Division of Oil and Gas
Resources Management and the Division of Mineral Resources Management."
(Complaint, 9.) Relator also seeks a "judgment awarding attorney's fees and court costs
associated with bringing this action." (Complaint, 9.) Significantly, however, relator does
not seek "statutory damages" pursuant to R.C. 149.43(C)(1).2
{¶ 11} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who rendered a decision and
recommendation that includes findings of fact and conclusions of law, which is appended
hereto. The magistrate concluded that ODNR complied with the public records laws in
responding to each of relator's public records requests, and that relator was not entitled to
damages. Accordingly, the magistrate recommended that we deny relator's application
for a writ of mandamus. Relator has filed objections to the magistrate's decision and the
matter is now before us for our independent review.
II. STANDARD OF REVIEW
{¶ 12} The purpose of a writ of mandamus is to " 'compel the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust or station.' "
State ex rel. Timson v. Shoemaker, 10th Dist. No. 02AP-1037, 2003-Ohio-4703, ¶ 16,
quoting State ex rel. Taylor v. Glasser, 50 Ohio St. 2d 165, 166 (1977). In order to be
entitled to a writ of mandamus, relator must demonstrate: "(1) * * * a clear legal right to
the relief prayed for; (2) that respondents are under a clear legal duty to perform the acts;
2R.C. 149.43(C)(1) provides in relevant part: "The amount of statutory damages shall be fixed at one
hundred dollars for each business day during which the public office or person responsible for the requested
public records failed to comply with an obligation in accordance with division (B) of this section, beginning
with the day on which the requester files a mandamus action to recover statutory damages, up to a
maximum of one thousand dollars." (Emphasis added.)
No. 12AP-448 5
and (3) that relator has no plain and adequate remedy in the ordinary course of the law."
State ex rel. Harris v. Rhodes, 54 Ohio St. 2d 41, 42 (1978).
{¶ 13} Relator must establish an entitlement to extraordinary relief by clear and
convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St. 3d 446, 2011-Ohio-6117,
¶ 57. Clear and convincing evidence is " 'that measure or degree of proof which is more
than a mere "preponderance of the evidence," but not to the extent of such certainty as
is required "beyond a reasonable doubt" in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.' " State ex rel. Husted v. Brunner, 123 Ohio St. 3d 288, 2009-Ohio-5327, ¶
18, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 14} Pursuant to Civ.R. 53(D)(3)(b)(4)(d): "If one or more objections to a
magistrate's decision are timely filed, the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the factual issues and appropriately
applied the law." Relator has interposed seven objections to the magistrate's decision.
III. ANALYSIS
{¶ 15} The Public Records Act must be construed liberally in favor of broad public
access, and any doubt must be resolved in favor of disclosure of public records. State ex
rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St. 3d 224, 2010-Ohio-3288, ¶ 6.
The primary duty of an agency when responding to a public records request is set out in
R.C. 149.43(B)(1), in relevant part, as follows:
Upon request and subject to division (B)(8) of this
section, all public records responsive to the request
shall be promptly prepared and made available for
inspection to any person at all reasonable times during
regular business hours. * * * [U]pon request, a public
office or person responsible for public records shall
make copies of the requested public record available at
cost and within a reasonable period of time."
{¶ 16} Relator's second, third, fourth, fifth, and sixth objections raise questions
whether ODNR performed its statutory duty to promptly prepare all public records
No. 12AP-448 6
responsive to relator's public records requests, and whether ODNR made all such records
available to relator "within a reasonable period of time." Accordingly, we will consider
these objections together.
{¶ 17} The magistrate determined that ODNR promptly prepared all public
records responsive to relator's three separate requests, and that ODNR made copies of
such records available to relator within a reasonable period of time. In its second
objection, relator claims that clear and convincing evidence establishes that ODNR
provided certain responsive records in an untimely manner. Based upon such evidence,
relator contends that ODNR failed to promptly prepare all responsive records to make
copies of all such records available to relator "within a reasonable period of time." We
agree.
{¶ 18} "Mandamus is the appropriate remedy to compel compliance with R.C.
149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. for Responsible
Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St. 3d 288, 2006-Ohio-903, ¶ 6;
R.C. 149.43(C)(1). The evidence establishes that ODNR employee, Husted, performed a
search of his personal computer in preparation for his April 10, 2012 deposition, and that
he was able to recover at least one e-mail correspondence that was both responsive to
relator's October 27, 2011 public records request, and which was omitted from ODNR's
response. The evidence also establishes that several other e-mails responsive either to
relator's May 17 or October 27, 2011 public records requests, were not among the records
made available to relator in June 2011.3 Case law has adopted the ordinary and
customary meaning of the word "promptly" for purposes of the Public Records Act, which
is, "without delay and with reasonable speed." See State ex. rel. Young v. Bd. of Edn.
Lebanon School Dist., 12th Dist. No. CA2012-02-013, 2013-Ohio-1111, ¶ 15, citing State ex
rel. Consumer News Serv., Inc. v. Worthington City Bd. of Edn., 97 Ohio St. 3d 58, 2002-
Ohio-5311, ¶ 37. We have defined the word "prompt" in this context as "performed readily
or immediately." See State ex rel. McCray v. Ohio Dept. of Commerce, 10th Dist. No.
3 See Husted e-mail dated May 9, 2011, two e-mails dated January 25, 2011, and an e-mail dated
December 22, 2010. See also Amy Childers' e-mail dated October 20, 2010, and a July 26, 2010 e-mail to
Rick Simmers. (Relator's Certified Evidence, exhibit No. 34.)
No. 12AP-448 7
11AP-1055, 2012-Ohio-2997 (adopting magistrate's decision citing Webster's Eleventh
New Collegiate Dictionary 994 (2005)).
{¶ 19} ODNR admits that on April 19, 2012, it produced copies of an additional
7,000 pages of responsive public records. While we realize that all of these records may
not be relevant and material to the purpose for which relator intends to use them, ODNR
has identified the records as responsive. Thus, there is clear and convincing evidence in
the record that ODNR failed to promptly prepare all responsive records and to make all
such records available to relator within a reasonable period of time. Accordingly, relator's
second objection is sustained.
{¶ 20} The magistrate determined that ODNR's belated production of
approximately 1,200 responsive public records was not relevant to the issue of timeliness
inasmuch as ODNR made copies of some of the responsive records available to relator
within a reasonable period of time after the request was served. In relator's third
objection, relator contends that the magistrate's determination was contrary to the public
records laws. We agree.
{¶ 21} Pursuant to R.C. 159.43(B)(1), ODNR's clear legal duty is to promptly
prepare all responsive records and to make copies of all such records available to relator
within a reasonable period of time. In other words, all means all. While we recognize that
the statute imposes a sizeable burden upon responding agencies such as ODNR, and that
the evidence shows that ODNR expended considerable time and resources in an effort to
comply with its statutory duty, " '[n]o pleading of too much expense, or too much time
involved, or too much interference with normal duties, can be used by the [public agency]
to evade the public's right to inspect and obtain a copy of public records within a
reasonable time.' " State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys., 39 Ohio St. 3d 108, 111
(1988), quoting State ex rel. Beacon Journal Publishing Co. v. Andrews, 48 Ohio St. 2d
283, 289 (1976). Indeed, a public agency "is under a statutory duty to organize [its] office
and employ [its] staff in such a way that [its] office will be able to make [public] records
available for inspection and to provide copies when requested within a reasonable time."
No. 12AP-448 8
Id., quoting State ex rel. Beacon Journal. See also State ex rel. Hartkemeyer v. Fairfield
Twp., 12th Dist. No. CA2012-04-080, 2012-Ohio-5842, ¶ 25.
{¶ 22} In short, we find that ODNR fell short of meeting its clear legal duty under
R.C. 149.43(B)(1) when it timely, yet incompletely, responded to relator's public records
requests. While the extent to which ODNR made a good-faith effort to comply with its
clear legal duty may be relevant to the issue of damages, under the facts of this case,
ODNR's good or bad faith is not probative of ODNR's compliance with R.C. 149.43(C)(1).4
Relator's third objection is sustained.
{¶ 23} In its fourth objection, relator challenges the magistrate's finding that
"ODNR has provided relator with all the documents related to the public records requests
and there is nothing that a writ of mandamus could compel." (Magistrate's Decision, 24.)
According to relator, the record contains clear and convincing evidence both that other
responsive records exist and that ODNR failed to promptly prepare such records. We
agree.
{¶ 24} With regard to e-mail correspondence, ODNR Chief Information
Technology Officer, Jeffrey A. Rowley, testified that ODNR installed software in
September 2010 that permits ODNR to recover and retrieve deleted employee e-mails.
(Stipulated Evidence, exhibit No. 30, at 17.) According to Rowley, any e-mail that is
initially received or transmitted by ODNR after September 2010 is preserved on ODNR's
computerized "journal," and it may be recovered at any time, even if the employee has
deleted it from both the desktop and mailbox ("double deleted"). (Stipulated Evidence,
exhibit No. 30, at 17-18.) Rowley acknowledged that e-mails first received or transmitted
by ODNR prior to September 2010 may only be recovered from the individual employee's
desktop or mailbox. (Stipulated Evidence, exhibit No. 30, at 25.) When such e-mails are
4 The court may reduce an award of attorney fees where both of the following apply: "(a) [B]ased on the
ordinary application of statutory law and case law as it existed at the time of the conduct * * * of the public
office * * * that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of
this section and that was the basis of the mandamus action, a well-informed public office * * * reasonably
would believe that the conduct or threatened conduct of the public office * * * did not constitute a failure to
comply with an obligation in accordance with division (B) of this section; (b) That a well-informed public
office * * * reasonably would believe that the conduct * * * of the public office * * * would serve the public
policy that underlies the authority that is asserted as permitting that conduct."
No. 12AP-448 9
double deleted, they are preserved for only 30 days thereafter. (Stipulated Evidence,
exhibit No. 30, at 20.)
{¶ 25} In an April 17, 2012 letter to relator, Rowan informed relator that ODNR
has adopted a two-year records retention policy concerning e-mail correspondence.
(Stipulated Evidence, exhibit No. 18.) In State ex rel. Toledo Blade Co. v. Seneca Cty. Bd.
of Commrs., 120 Ohio St. 3d 372, 2008-Ohio-6253, the Supreme Court of Ohio held that a
public office has a duty under R.C. 149.43(B) to recover and provide access to e-mails that
were unlawfully deleted. Id. at ¶ 19.
{¶ 26} Rowley testified that he is the only employee currently authorized to
retrieve deleted e-mails from the journal; that he was never asked to perform a search of
the journal in connection with relator's May 17, 2011 public records request; that he was
not asked to perform a journal search in connection with the October 27, 2011 public
records request until April 2012, and that he was not asked to perform a journal search in
connection with relator's February 12, 2012 public records request until August 2012.
According to Rowley, he completed the April and the August 2012 journal searches within
one week. (Stipulated Evidence, exhibit No. 30, at 17, 38-40, 69-70, 75.)
{¶ 27} With regard to other computerized files, Rowley explained that if a file is
copied to the shared server it will remain on the system even after it is deleted, and that
an employee who is subsequently granted permission to access the particular file folder
can recover the file through his office. Rowley testified that the task of locating and
accessing files contained only on an employee's personal computer is within the purview
of the individual employee and/or the domain administrator. (Stipulated Evidence,
exhibit No. 30, at 78.) With regard to files in the personal computers of employee's who
have left ODNR, Rowley testified that an inventory review would reveal the location of the
particular employee's computer. (Stipulated Evidence, exhibit No. 30, at 84.)
{¶ 28} According to Rowley, the new division chief decides whether to preserve the
files on the personal computer of his or her predecessor. (Stipulated Evidence, exhibit
No. 30, at 120.) Here, the evidence shows that Husted recovered the e-mail
correspondence that precipitated this litigation (Stipulated Evidence, exhibit No. 16) only
No. 12AP-448 10
after he resumed his employment with ODNR and conducted a search of his archived
files. (Stipulated Evidence, exhibit No. 30, at 118.)
{¶ 29} Based upon the foregoing, we find that ODNR had a clear legal duty to make
copies of all responsive records available to relator within a reasonable period of time, but
that ODNR failed to do so. Clear and convincing evidence establishes that ODNR has not
taken the steps necessary to recover other responsive records including e-mails that may
have been deleted in violation of ODNR's records retention policy, and records that are
stored on the personal computers of key employees who subsequently left ODNR.
Accordingly, ODNR has not performed its clear statutory duty to promptly prepare all
responsive records. Relator's fourth objection is sustained.
{¶ 30} In relator's fifth objection, relator takes exception to the magistrate's
conclusion that this public records dispute involves only three documents. We agree with
relator.
{¶ 31} As we have determined in connection with relator's second, third, and
fourth objections, relator has presented clear and convincing evidence that ODNR
provided more than 1,200 responsive records in April 2012, shortly after it learned that
certain responsive records had been omitted from ODNR's prior responses, but well after
ODNR deemed its responses "completed." (Rowan affidavit, ¶ 18, 33, 43.) We have also
determined that ODNR failed to conduct the activities necessary to retrieve all responsive
records. Thus, the magistrate's conclusion that ODNR complied with its clear legal duty is
both factually unsupported and contrary to law. Accordingly, relator's fifth objection is
sustained.
{¶ 32} Relator's sixth objection challenges the magistrate's determination that
relator was not entitled to a writ of mandamus inasmuch as the three documents ODNR
failed to timely provide were previously obtained by relator through its representation of
Patriot and Warren. Essentially, the magistrate found that relator was not prejudiced by
ODNR's failure to promptly prepare all responsive records. However, there is nothing in
the public records law that prohibits a requester from seeking public records simply
because the requester may have previously obtained some of the requested records via
No. 12AP-448 11
other means. Nor is it necessary in this case for relator to prove harm or prejudice in
order to obtain a writ of mandamus. See State ex rel. Timson at ¶ 16. Moreover, under
R.C. 149.43(B)(5), a "requester may decline to reveal the requester's identity or the
intended use" for the requested public records. Thus, the magistrate's analysis is
inapposite.
{¶ 33} Based upon the foregoing, relator's sixth objection is sustained.
{¶ 34} In relator's first objection, relator challenges the magistrate's conclusion
that each of relator's three public records requests was "complex and expansive." To the
extent that the magistrate considered the complexity and expansiveness of the records
requests in concluding that ODNR had acted reasonably in responding to the requests,
our attention is directed to R.C. 149.43(B)(2), which provides:
To facilitate broader access to public records, a public
office or the person responsible for public records shall
organize and maintain public records in a manner that
they can be made available for inspection or copying in
accordance with division (B) of this section. A public
office also shall have available a copy of its current
records retention schedule at a location readily
available to the public. If a requester makes an
ambiguous or overly broad request or has difficulty in
making a request for copies or inspection of public
records under this section such that the public office or
the person responsible for the requested public record
cannot reasonably identify what public records are
being requested, the public office or the person
responsible for the requested public record may deny
the request but shall provide the requester with an
opportunity to revise the request by informing the
requester of the manner in which records are
maintained by the public office and accessed in the
ordinary course of the public office's or person's
duties.
(Emphasis added.)
{¶ 35} At the outset, we note that there is no specific form which a public records
request must take. State ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. No. 04AP-
492, 2005-Ohio-3377, ¶ 89. The evidence shows that ODNR did not inform relator that
No. 12AP-448 12
the May 17, 2011 and February 3, 2012 public records requests were either ambiguous or
overly broad. Although Rowan believed that relator's requests were unclear and overly
inclusive, he did not inform relator of his belief, nor did he ask relator to revise the
requests. The magistrate concluded that ODNR's failure to inform relator of the alleged
ambiguity and over breadth of these requests was of no consequence inasmuch as its duty
arises only where the agency fails to provided copies of responsive records within a
reasonable period of time.
{¶ 36} However, as noted above, ODNR did not promptly prepare all records
responsive to relator's May 17, 2011 request, and did not make all such records available
to relator within a reasonable period of time. Thus, ODNR's response to the May 17, 2011
records request was incomplete. Similarly, we have determined in connection with
relator's fourth objection that ODNR did not perform the acts necessary to promptly
prepare all records responsive to the October 27, 2011 and February 3, 2012 public
records requests.
{¶ 37} Nothing in the statutory language suggests that a prompt, yet incomplete,
response to an allegedly ambiguous and overly broad public records request, relieves the
responding agency of its duty to inform the requestor of such ambiguity or over breadth.
In fact, ODNR's own "Public Records Policy-Procedure" ("policy"), provides in relevant
part:
If a request is received by the Department, and it is not
clear what records are being sought, the
Division/Office Coordinator, Department Record
Officer, or Legal Counsel will contact the requester for
clarification, and assist the requester in revising the
request by informing the requester of the manner in
which the office mainatains its records.
(Stipulated Evidence, exhibit No. 21, at 2.)
{¶ 38} Under both the statute and the policy, the requestor's duty to revise the
request arises only after the agency has informed the requestor that the request is either
ambiguous or overly broad. If ODNR believed the May 17, 2011 and February 3, 2012
public records requests were so ambiguous and overly broad as to relieve it of its duty to
No. 12AP-448 13
promptly prepare responsive records, ODNR was obligated to inform relator of the issue
and to ask relator to revise the request. The use of the word "shall" in R.C. 149.43(B)(2),
and "will" in ODNR's policy means that the duty is mandatory.
{¶ 39} With respect to the October 27, 2011 public records request, the evidence
shows that Rowan informed relator that ODNR considered the request to be both unclear
and overly inclusive, and he asked relator to revise the request. Rowan did not, however,
deny the request as is permitted under R.C. 149.43(B)(2), nor did he inform relator of the
manner in which ODNR records are maintained and accessed by its employees in the
ordinary course of its business, as is required by R.C. 149.43(B)(2).5 When relator
subsequently asked for guidance in revising its request, ODNR did not respond.
{¶ 40} We acknowledge that it is the responsibility of the person who wishes to
inspect and/or copy records to identify with reasonable clarity the records at issue, and
that the Public Records Act does not contemplate a complete duplication of voluminous
files kept by government agencies. See, e.g., State ex rel. Morgan v. New Lexington, 112
Ohio St. 3d 33, 2006-Ohio-6365, ¶ 29; State ex rel. The Warren Newspapers, Inc. v.
Hutson, 70 Ohio St. 3d 619, 624 (1994); State ex rel. Zauderer v. Joseph, 62 Ohio App. 3d
752 (10th Dist.1989). We are also aware of the case law holding that a writ of mandamus
will not issue to compel prompt responses to vague and overly broad public records
requests. Id. See also State ex rel. Dillery v. Icsman, 92 Ohio St. 3d 312 (2001). Although
the records requests at issue in this case are comprehensive in terms of the types of
records requested, the requests contain limitations as to the time frame, subject matter,
and, in most instances, the specific employee(s) concerned. Moreover, ODNR's policy
states that ODNR's knowledge of the requestor's identity and the intended use of the
public records "could enhance the Department's ability to identify, locate and/or deliver
responsive public records." (Stipulated Evidence, exhibit No. 21, at 2.) There is no doubt
that ODNR has the necessary knowledge in this case.
5 R.C. 149.43(B)(3) also requires that "[i]f a request is ultimately denied, in part or in whole, the public office
or the person responsible for the requested public record shall provide the requester with an explanation,
including legal authority, setting forth why the request was denied."
No. 12AP-448 14
{¶ 41} In short, while we agree with the magistrate's characterization of relator's
public records requests as "complex and expansive," the relevant evidence and the
applicable law do not support the magistrate's conclusion that such complexity and
expansiveness relieved ODNR of its obligation to promptly prepare all responsive records.
This is particularly true with respect to the May 17, 2011 and February 3, 2012 requests,
inasmuch as ODNR failed to informed relator of the alleged ambiguity and over breadth
of the requests and failed to provide relator with the opportunity of revision.
{¶ 42} Accordingly, relator's first objection is sustained.
{¶ 43} In relator's seventh objection, relator argues that the magistrate erred in
concluding that it was not entitled to damages in the form of attorney fees. R.C.
143.43(C)(1) provides for an award of attorney fees as follows:
If a person allegedly is aggrieved by the failure of a
public office * * * to promptly prepare a public record
and to make it available to the person for inspection in
accordance with division (B) of this section * * * the
person allegedly aggrieved may commence a
mandamus action to obtain a judgment that orders the
public office or the person responsible for the public
record to comply with division (B) of this section, that
awards court costs and reasonable attorney's fees to the
person that instituted the mandamus action
{¶ 44} "Reasonable attorney's fees awarded under [R.C. 149.43(C)] shall be
construed as remedial and not punitive." R.C. 149.43(C)(2)(c); see also State ex rel.
Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St. 3d 88, 2007-
Ohio-5542, ¶ 24.
{¶ 45} ODNR argues that relator is not entitled to attorney fees under the public
records law inasmuch as relator made the public records requests on its own behalf and
relied exclusively upon the labor of its own lawyers in prosecuting the action. According
to ODNR, relator is a pro se litigant and, as such, relator is not entitled to recover attorney
fees in this public records action. We agree.
{¶ 46} The Supreme Court of Ohio has consistently held that an award of attorney
fees is not available to the aggrieved party under the public records act absent evidence
No. 12AP-448 15
that the party paid, or was obligated to pay, an attorney to prosecute the action. See, e.g.,
State ex rel. Beacon Journal at ¶ 62; State ex rel. O'Shea & Assoc. Co., L.P.A. v. Cuyahoga
Metro. Hous. Auth., 131 Ohio St. 3d 149, 2012-Ohio-115; State ex rel. Besser v. Ohio State
Univ., 87 Ohio St. 3d 535, 542-43 (2000). See also State ex rel. Hous. Advocates, Inc. v.
Cleveland, 8th Dist. No. 96243, 2012-Ohio-1187, ¶ 6.
{¶ 47} Relator makes no effort to distinguish the applicable case law. Rather,
relator submitted the affidavit of Patriot President, Andrew Blocksom, as an attachment
to its brief. Therein, Blocksom avers that he instructed relator both to initiate the public
records requests on behalf of Patriot, and to subsequently file the instant mandamus
action on Patriot's behalf. ODNR urges us to disregard Blocksom's affidavit as being
untimely filed.
{¶ 48} However, even if we consider the affidavit, Blocksom does not aver that
Patriot either paid or was obligated to pay relator's attorneys for the work done in this
case. Thus, the affidavit does not persuade us that Patriot is the person aggrieved in this
matter. This action was commenced by relator on its own behalf and the public records
requests that precipitated this matter were served by relator on its own behalf. Relator is
clearly the "person aggrieved" for purposes of R.C. 149.43(C)(1).
{¶ 49} Based on the foregoing, we hold that relator is not entitled to recover
attorney fees associated with its prosecution of this action. Accordingly, relator's seventh
objection is overruled.
IV. DISPOSITION
{¶ 50} Following independent review, pursuant to Civ.R. 53, we find the magistrate
has properly determined many of the pertinent facts, as indicated herein, and we adopt
them as our own. However, for the reasons set forth in this decision, we disagree with the
magistrate's conclusion of law. Accordingly, we hereby sustain relator's first, second,
third, fourth, fifth and sixth objections. Relator's seventh objection is overruled.
{¶ 51} Based upon the foregoing, we find that relator has proven, by clear and
convincing evidence, that it has a clear legal right to relief under the Public Records Act,
that respondent is under a clear legal duty to perform the acts necessary to promptly
No. 12AP-448 16
prepare responsive public records and to make copies of all such records available to
relator, and that relator has no plain and adequate remedy in the ordinary course of the
law. Accordingly, a writ of mandamus shall be issued ordering ODNR to promptly
prepare all non-exempt public records that are responsive to relator's May 17 2011,
October 27, 2011, and February 3, 2012 public records requests, and to make copies of all
such records available to relator within a reasonable period of time. In accordance with
its duties hereunder, ODNR shall perform the acts necessary to search its journal for
responsive e-mail correspondence that were deleted in violation of its records retention
policy, and it shall make reasonable efforts to identify all responsive records stored on the
shared servers or on the personal computers of all former ODNR employees who are
either identified in relator's records requests or whom are known to have generated or
received responsive records.
{¶ 52} Consistent with the Public Records Act and ODNR's Public Records Policy-
Procedure, the parties are encouraged to cooperate to achieve a mutually acceptable
resolution of the pending records requests. See State ex rel. Morgan v. Strickland, 121
Ohio St. 3d 600, 604 (2009).
Objections sustained in part;
writ of mandamus granted.
BROWN and DORRIAN, JJ., concur.
_________________
No. 12AP-448 17
A P P E N D I X
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Bott Law Group, LLC,
:
Relator,
: No. 12AP-448
v.
: (REGULAR CALENDAR)
Ohio Department of
Natural Resources, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on May 20, 2013
Bott Law Group, LLC, April R. Bott, Sarah L. Herbert, and
MacDonald W. Taylor, for relator.
Michael DeWine, Attorney General, Robert Moormann and
Jeffrey Clark, for respondent.
IN MANDAMUS
{¶ 53} Relator, Bott Law Group, LLC, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent Ohio Department of Natural
Resources ("ODNR") to provide it with all documents encompassed within the scope of
their public records requests and asks this court to find that, to the extent that ODNR has
already provided certain documents, ODNR did not do so promptly. Further, to the
No. 12AP-448 18
extent that relator asserts that ODNR has not provided copies of all relevant documents,
relator asks this court to order ODNR to produce those records. Relator also seeks an
award of statutory damages and attorney fees.
Findings of Fact:
{¶ 54} 1. Between May 17, 2011 and March 27, 2012, relator made seven separate
requests for public records to ODNR.
{¶ 55} 2. Out of those seven requests, relator argues that ODNR did not respond
promptly and did not provide all relevant documents for three of those requests: May 17,
October 27, 2011, and February 3, 2012. Those three requests are the subject of this
mandamus action.
{¶ 56} 3. Relator's May 17, 2011 public records request was made via e-mail
directed to Denise McCoy. Relator sought the following documents:
Pursuant to Ohio's Public Records Law, R.C. 149.43, this
letter serves as a public records request for all of the
following Ohio Department of Natural Resources records,
including all records from the Division of Mineral Resources
Management and all relevant district offices, from January 1,
2009 to present:
 Communications, meeting or call logs/notes,
correspondence, documents, data, analyses,
calculations, studies, reports, scientific, technical and
supporting information, or comments related to
Patriot Water Treatment, LLC's ("Patriot") pending
Ohio EPA PTI permit applications for Steubenville
and East Liverpool;
 Total dissolved solids ("TDS") scientific, modeling and
technical documents, data, calculations, studies,
analyses, samples, tests, reports or records related to
the Ohio River, including, specifically, such
information related to portions of the river spanning
Ohio River miles 942.52 to 904;
 Communications and correspondence between the
Ohio Department of Natural Resources and other
government agencies, including but not limited to
U.S. EPA, Pennsylvania Department of
No. 12AP-448 19
Environmental Quality, and Ohio EPA and any
communications, meeting and conference notes,
records, logs, guidance, requirements, technical
documents, calculations, recommendations or
comments from such agencies regarding Ohio EPA's
permitting of Patriot's pretreatment system, the
receipt and discharge of brine process water by
Steubenville or East Liverpool, and, more generally,
brine water pretreatment systems, the discharge of
brine process water by such systems to wastewater
treatment plants, and the disposal of brine water;
 Scientific, modeling and technical documents,
memorandum, recommendations, policy documents,
and communications, including all TDS and water
quality data and information regarding: (1) the Ohio
Department of Natural Resources' policies and/or
positions regarding brine water pretreatment systems,
(2) the Ohio Department of Natural Resources'
policies and/or positions regarding discharges of
brine process water by wastewater treatment facilities,
(3) the environmental impacts of underground
injection of water and other substances created by
fracking, and (4) the disposal of fracking water; and
 Communications and correspondence between the
Ohio Department of Natural Resources and
companies, industries or individuals involved in
underground injection of brine water or fracking
water or the processing and treatment of brine water
or fracking water.
This public records request is meant to be comprehensive,
and includes, without limitation, the files of Director David
Mustine, former Director Sean Logan, Scott Zody[,] John
Husted, Tom Tugend, Rick Simmers, Mike McCormac, Rob
Stonerock and any other Ohio Department of Natural
Resources employee who has worked on or continues to
work on matters related to the pretreatment of brine process
water, the discharge of such process water into wastewater
treatment facilities, and any other disposal option(s) for
brine water, including individuals involved in permitting and
policy development of same.
No. 12AP-448 20
Further, this public records request includes, without
limitation, all other files (including electronic files), records,
reports, tests, meeting notes, personal notes, telephone notes
and logs, data and reports (both draft and final), internal and
external memoranda and all other relevant documents
responsive to the topics of this public records request.
{¶ 57} 4. The record contains an affidavit from Charles Rowan, who has served as
Deputy Chief Counsel at ODNR since 1996. According to his affidavit, Rowan is
responsible for providing and/or coordinating responses to public records requests made
upon ODNR. According to Rowan, ODNR receives hundreds of public records requests
on an annual basis. Since February 2012, ODNR has logged and responded to over 900
separate, non-routine public records requests.
{¶ 58} 5. According to Rowan's affidavit, relator's May 17, 2011 public records
request was handled as follows:
[Five] On May 17, 2011, Denise McCoy received an e-mail
public records request from Mac Taylor ("Mr. Taylor") of
Bott Law Group, LLC ("BLG"). Denise McCoy forwarded the
public records request to me via e-mail the same day, May
17, 2011. See Stipulated Ex. 1; Respondent's Ex. B, p. 62[.]
[Six] The May 17 public records request ("May 17 Request")
requested records from, or to, or sent or received by,
multiple employees, "relating to" multiple subject areas, and
covered multiple different files. See, Stipulated Ex. 1[.]
[Seven] Much of the May 17 Request submitted by BLG was
overly broad and requested an almost complete duplication
of ODNR's files regarding several subject matters, several
employees, and communications made between ODNR and
other state, local, and federal agencies.
[Eight] Much of the May 17 Request submitted by BLG was
ambiguous and did not request records with specificity or
particularity.
[Nine] Despite the May 17 Request being overbroad and
ambiguous, I decided to err in favor of disclosure, and
immediately began to process the May 17 Request to the
No. 12AP-448 21
fullest extent practicable given the manner in which records
were maintained by ODNR.
[Ten] On May 17, 2011, the same day the May 17 Request was
submitted, I notified ODNR employees of the request and
directed them to forward to appropriate staff for review and
response. See Respondent Ex. B, p. 64.
[Eleven] I took the following steps to process the May 17
Request: (1) sent the May 17 Request to all potential
employees and offices in Central Office who had responsive
records; (2) obtained and organized records that were
located in several different files and provided by several
employees; (3) ensured that the responsive documents
identified had been reviewed prior to release.
[Twelve] On June 6, 2011, I provided BLG with a cover letter
and a set of responsive records to the May 17 Request. See
Stipulated Ex. 3.
[Thirteen] In the June 6, 2011, cover letter I indicated that
additional records were being reviewed and would be sent
once the review was complete. See Stipulated Ex. 3[.]
[Fourteen] On June 30, 2011, I provided BLG with a cover
letter and a set of additional responsive records to the May 17
Request. See, Stipulated Exhibit 4.
[Fifteen] ODNR has been unable to locate an exact copy of
the records provide on June 30, 2011, but a reproduction of a
majority of those records is contained in Respondent's Ex. C.
[Sixteen] By June 30, 2011, ODNR had provided over 200
pages of responsive documents to the May 17 Request.
[Seventeen] Upon the provision of records on June 30, 2011,
I considered the May 17 Request completed and closed.
[Eighteen] The first set of records responsive to the May 17
Request were sent to Relator within three weeks. All of the
review and provision of responsive records for the May 17
Request was completed in less than six weeks, and in a
reasonably comprehensive manner in light of the ambiguous
and overly broad nature of the requests.
No. 12AP-448 22
{¶ 59} 6. Relator's next public records request, dated October 27, 2011, requested
the following records:
Pursuant to Ohio's Public Records Law, R.C. 149.43, this
letter serves as a public records request for all of the
following Ohio Department of Natural Resources records,
including all records from the Division of Mineral Resources
Management and all relevant district offices, from May 1,
2011 to present:
 Decisions, rulemakings, policy documents, meeting
notes or logs, communications, and all other records
related to the treatment of industrial waters in the oil
and gas industry;
 Communications, meeting or call logs/notes,
correspondence, documents, data, analyses,
calculations, studies, reports, scientific, technical and
supporting information, or comments related to
Patriot Water Treatment, LLC's ("Patriot") pending
Ohio EPA PTI permit applications for Steubenville
and East Liverpool;
 Total dissolved solids ("TDS") scientific, modeling and
technical documents, data, calculations, studies,
analyses, samples, tests, reports or records related to
the Ohio River, including, specifically, such
information related to portions of the river spanning
Ohio River miles 942.52 to 904;
 Communications and correspondence between the
Ohio Department of Natural Resources and other
government agencies, including but not limited to
U.S. EPA, Pennsylvania Department of
Environmental Quality, and Ohio EPA and any
communications, meeting and conference notes,
records, logs, guidance, requirements, technical
documents, calculations, recommendations or
comments from such agencies regarding Ohio EPA's
permitting of Patriot's pretreatment system, the
receipt and discharge of brine process water by the
City of Warren ("Warren") Steubenville or East
Liverpool, and, more generally, brine water
No. 12AP-448 23
pretreatment systems, the discharge of brine process
water by such systems to wastewater treatment
plants, and the disposal of brine water;
 Documents and records related to Patriot or Warren
or the use of injection wells;
 Scientific, modeling and technical documents,
memorandum, recommendations, policy documents,
and communications, including all TDS and water
quality data and information regarding: (1) the Ohio
Department of Natural Resources' policies and/or
positions regarding brine water pretreatment systems,
(2) the Ohio Department of Natural Resources'
policies and/or positions regarding discharges of
brine process water by wastewater treatment facilities,
(3) the environmental impacts of underground
injection of water and other substances created by
fracking, and (4) the disposal of fracking water; and
 Communications and correspondence between the
Ohio Department of Natural Resources and
companies, industries or individuals involved in
underground injection of brine water or fracking
water or the processing and treatment of brine water
or fracking water.
This public records request is meant to be comprehensive,
and includes, without limitation, the files of former Director
David Mustine, Director Scott Zody, John Husted, Tom
Tugend, Tom Tomastik, Rick Simmers, Mike McCormac,
Rob Stonerock and any other Ohio Department of Natural
Resources employee who has worked on or continues to
work on matters related to the pretreatment of brine process
water, the discharge of such process water into wastewater
treatment facilities, and any other disposal option(s) for
brine water, including individuals involved in permitting and
policy development of same.
Further, this public records request includes, without
limitation, all other files (including electronic files), records,
reports, tests, meeting notes, personal notes, telephone notes
and logs, data and reports (both draft and final), internal and
No. 12AP-448 24
external memoranda and all other relevant documents
responsive to the topics of this public records request.
{¶ 60} 7. Rowan's affidavit also explains the manner in which relator's October 27,
2011 records request was handled:
[Nineteen] On October 27, 2011, Denise McCoy received an
e-mail public records request from Mr. Taylor. Denise
McCoy forwarded the public records request to me via e-mail
the same day, October 27, 2011. See Stipulated Ex. 5;
Respondent's Ex. B, p. 102.
[Twenty] The public records request ("Oct. 27 Request")
attached to the October 27, 2011, e-mail requested records
from, or to, or sent or received by, multiple employees,
"relating to" multiple subject areas, and covered multiple
different files. See Stipulated Ex. 5.
[Twenty-one] Much of the Oct. 27 Request submitted by BLG
was overly broad and requested an almost complete
duplication of ODNR's files regarding several subject
matters, several employees, and communications made
between ODNR and other state, local and federal agencies.
[Twenty-two] Much of the Oct. 27 Request submitted by BLG
was ambiguous and did not request records with specificity
or particularity.
[Twenty-three] On Nov. 1, 2011, I notified Mr. Taylor of the
BLG, via letter, that the Oct. 27 Request lacked clarity, was
over-inclusive, overly broad, and vague. See Stipulated Ex. 6.
[Twenty-four] Mr. Taylor declined to revise the Oct. 27
request. See Stipulated Ex. 7.
[Twenty-five] Despite the problems with the Oct. 27 Request
noted above, I again decided to err in favor of disclosure and
immediately began to process the Oct. 27 Request to the
fullest extent practicable given the manner in which records
were maintained by the Department.
[Twenty-six] In order to process the Oct. 27 Request I took
the following steps: (1) sent the Oct. 27 Request to all
No. 12AP-448 25
potential employees and offices in Central Office who had
responsive records; (2) obtained and organized records that
were located in several different files and provided by several
employees; (3) ensured that the responsive documents
identified had been reviewed prior to release.
[Twenty-seven] On Nov. 1, 2011, I notified ODNR employees
of the Oct. 27 Request and directed them to review and
respond with all responsive records. See Respondent's Ex.
102.
[Twenty-eight] On Nov. 10, 2011, I provided BLG with a
cover letter and a set of responsive records to the Oct. 27
Request. See Stipulated Ex. 9, 24.
[Twenty-nine] In the Nov. 10, 2011, cover letter I indicated
that additional records were being reviewed and would be
sent once the review was complete. See Stipulated Ex. 9.
[Thirty] On Nov. 23, 2011, through Ohio Attorney General
Counsel, ODNR mailed additional records responsive to the
Oct. 27 Request to the BLG office. See Stipulated Ex. 25.
[Thirty-one] In total, ODNR has provided over 460 pages of
responsive documents to the Oct. 27 Request.
[Thirty-two] Upon the provision of records on Nov. 23, 2011,
I considered the October 27 Request completed and closed.
[Thirty-three] The first set of responsive records to the
October 27 Request were sent to Relator within two weeks.
All of the review and provision of responsive records for the
Oct. 27 Request was completed in less than one month, and
in a reasonably comprehensive manner in light of the
ambiguous and overly broad nature of the request.
{¶ 61} 8. Relator made two additional public records requests in January 2012
and then submitted the following public records request dated February 3, 2012:
Pursuant to Ohio's Public Records Law, R.C. 149.43, this
letter serves as a public records request for all of the
following Ohio Department of Natural Resources records,
including all records from the Division of Oil and Gas
No. 12AP-448 26
Resources Management, Division of Mineral Resources
Management, and all relevant district offices (collectively,
"ODNR"):
 All records, including any communications,
correspondence (including any communications or
correspondence with Ohio EPA or other Ohio state
agencies), reports, data, or studies, that support
ODNR spokesman Carlo LoParo's statement in the
February 1, 2012 Youngstown Business Journal article
entitled "Patriot Claims State Spreads
Disinformation." Specifically, Mr. LoParo's statement
that "[t]he salt water in the wastewater with the
carcinogens have a negative cumulative effect on the
[Mahoning] river, on its plant life and on its animal
life."
 All records, including any communications,
correspondence (including any communications or
correspondence with Ohio EPA or other Ohio state
agencies), reports, data, or studies, that support Mr.
LoParo's claim, in the same Youngstown Business
Journal article, that "negative impacts" experienced in
New York and Pennsylvania with regard to the
cumulative impact of the disposal of oil and gas
wastewater in surface water-bodies are transferable to
the Mahoning River.
This public records request is meant to be comprehensive,
and includes, without limitation, the files of James
Zehringer, Larry Wickstrom, Tom Tomastik, Tom Tugend,
Scott Zody, John Husted, Carlo LoParo, and Rick Simmers.
Further, this public records request includes, without
limitation, all other files (including electronic files), records,
reports, tests, meeting notes, personal notes, telephone notes
and logs, data and reports (both draft and final), internal and
external memoranda and all other relevant documents
responsive to the topics of this public records request.
(Footnote deleted.)
{¶ 62} 9. In his affidavit, Rowan explains the manner in which relator's
February 3, 2012 public records request was handled:
No. 12AP-448 27
[Thirty-four] On February 3, 2012, Beth Wilson received an
e-mail public records request from Mr. Taylor of BLG. See
Stipulated Ex. 10. The same public records request was sent
to me via e-mail on February 6, 2012. See, Stipulated Ex. 11.
[Thirty-five] The public records request ("Feb. 3 Request")
attached to the Feb. 3, 2011, and Feb. 6, 2011, e-mails
requested records from, or to, or sent by, or received by,
numerous employees, "supporting" statements made by an
ODNR employee. See Stipulated Ex. 10.
[Thirty-six] Much of the Feb. 3 Request submitted by BLG
was overly broad and was an improper request for
information.
[Thirty-seven] Much of the Feb. 3 Request submitted by BLG
was ambiguous and did not request records with specificity
or particularity, or in the manner in which records were
stored at ODNR.
[Thirty-eight] Despite the problems with the Feb. 3 Request
noted above, I again decided to err in favor of disclosure and
immediately began processing the Feb. 3 Request to the
fullest extent practicable given the manner in which records
were maintained by the Department.
[Thirty-nine] In order to process the Feb. 3 request I took
the following steps: (1) sent the Feb. 3 Request to all
potential employees and offices in Central Office who had
responsive records; (2) obtained and organized records that
were located in several different files and provided by several
employees; (3) ensured that the responsive documents
identified had been reviewed prior to release; (4) utilized
ODNR's information technology resources to perform
searches in regards to employee e-mail. See Respondent's
Ex. B, p. 178.
[Forty] On Feb. 6, 2012, I notified ODNR employees of the
Feb. 3 Request and directed them to review and respond
with all responsive records. See Respondent's Ex. B, p. 162.
[Forty-one] On March 5, 2011, I provided BLG with a cover
letter and a set of responsive records to the Feb. 3 Request.
See Stipulated Exhibit 15; See Respondent's Ex. D.
No. 12AP-448 28
[Forty-two] In total, ODNR has provided over 35 pages of
responsive documents to the Feb. 3 Request.
[Forty-three] All of the above review and provision of
responsive records for the Feb. 3 Request was completed in
just over four weeks, and in a reasonably comprehensive
manner in light of the ambiguous and overly broad nature of
the requests.
{¶ 63} 10. As part of contemporaneous litigation by relator, John Husted, an
ODNR employee, was deposed on April 10, 2012. At that deposition, Husted produced an
e-mail record which relator asserts should have been provided as part of ODNR's
response to relator's May 17, 2011 public records request.
{¶ 64} 11. The Husted e-mail is dated Tuesday, July 21, 2009. The July 21, 2009
e-mail is the fourth e-mail in a string of e-mails which were sent and forwarded to various
people beginning with the July 15, 2009 e-mail sent from Cathryn Loucas to John Husted
and Scott Kell. The subject of the e-mails was referred to as: "Patriot Water (Is that their
name)." The original e-mail from Loucas to Husted and Kell provides:
You guys may recall we got an e-mail from Jen Lynch
regarding Patriot Water. I talked to George Elmaraghy today
and he is going to forward the letter that OEPA sent to
Patriot with guidelines regarding what waters can be treated
at POTW. In the meantime and in anticipation of our
proposed O&G legislation and the probability that we will be
asked to take water/brine from WV and PA, we need to
examine our legislation to make sure we are adequately
protected or we are taking responsible, proactive steps to
handle these issues should/when it occurs. Let me know how
you guys would like to proceed.
{¶ 65} 12. In a follow-up e-mail dated July 16, 2009, Husted responded as follows
to Loucas and Kell:
This issue was in last week's weekly… just as an fyi.
I would some [sic] type of briefing that summarizes:
[One] Number permits by company and state
No. 12AP-448 29
[Two] Years in operation
[Three] Volume by permit by yr
[Four] Comparison to Ohio companies.
Scott please assign this summary to Tom T to be completed
by 7-25-09[.]
I believe we can get a better handle on the issue for CL's
questions with a little more info.
{¶ 66} 13. Thereafter, on July 20, 2009, Kell responded as follows to Husted and
copied Tom Tomastik with the following e-mail:
This is a new company, proposing to manage brine in a
manner that has been approved by the PA. DEP for decades,
but never in Ohio. Their proposal would be permitted and
regulated by OEPA. We would not have approval, inspection
or enforcement authority. Based on personal
communications, their proposal involves treatment and
stream release of relatively low salinity brine (<50,000 ppm
chloride), mostly flow back from Marcellus hydraulic
fracturing operations. Our law prohibits direct release to
streams and will continue to allow two options for brine
management; disposal at a permitted Class II injection well,
or surface spreading for dust and ice control in accordance
with an approved local ordinance. These will remain the only
options for brine management that we authorize and
regulate, other than releases from a small group of wells in
SE Ohio called Exempt Mississippian wells. Our
amendments prohibit surface spreading of flowback,
establish a per-barrel injection fee, and allows modifications
to permitted injection pressures based upon the results of an
authorized and witnessed step-rate test.
{¶ 67} 14. The final e-mail in the string of e-mails is the one dated July 21, 2009
from Husted to Loucas, which provides: "fyi."
{¶ 68} 15. Following the deposition at which Husted produced the July 21, 2009 e-
mail, relator sent the following April 10, 2012 e-mail to Megan DeLisi with ODNR:
As follow-up from the Husted depositions, a couple of items.
First, as to the attached e-mail, we have confirmed that we
have not received this e-mail with all appropriate e-mail
No. 12AP-448 30
changes (i.e. dates, transmittals, cc list). Mr. Husted testified
that if he printed his e-mail off, it would have included this
information. Note, that ODNR employees Tugend, Simmers
and Tomastik are also carbon copies, so all of these
employees should have the same capability to provide a full
copy of the e-mail. Please provided by COB tomorrow.
Second, we confirmed that the e-mail you provided today has
not been previously provided despite the numerous public
records requests served on ODNR. As such, we would
request that you immediately confirm the all responsive
documents from Husted, Kell and Loucas's [sic] files have
been identified and will be produced to us immediately.
Thanks in advance for your anticipated cooperation.
{¶ 69} 16. In an e-mail dated April 16, 2012, Rowan responded to relator as
follows:
Please be advised that the department is currently evaluating
its previous public record response for completeness in light
of your e-mail to Ms. DeLisi below and will endeavor to have
any additional responsive records to you as soon as our
resources allow. Your patience is greatly appreciated.
{¶ 70} 17. Thereafter, on April 17, 2012, relator sent the following e-mail to Rowan
and copied Megan DeLisi, Sandra Ramos, Beth Wilson, and Molly Corey:
Charles-
As you know, this request was made a week ago following a
deposition during which Mr. Husted produced an e-mail not
previously produced. As you as [sic] also aware, my clients
have a hearing in one week from today and these
Loucas/Kell/Husted documents are all directly relevant. As
such, I would ask that ODNR timely turn over all additional
records responsive to our numerous public records request.
As you know, Ohio case law states that "timely production"
occurs in 7-10 business days from request.
Thank you in advance for your cooperation.
{¶ 71} 18. That same day, April 17, 2012, Rowan responded to relator:
No. 12AP-448 31
Timely production is not limited to 7-10 business days. The
time frame is determined on a case by case basis considering
what is reasonable based upon the extent and nature of the
request and the resources available to the public office. In
addition, the agency has a right to pre-release review. Also, I
am not aware of your clients hearing schedule, nor is that a
factor in evaluating whether the department's response is
timely.
With regard to the specific records you requested, John
Husted's 2009 e-mail is beyond the department's record
retention schedule for e-mail correspondence (2 years), and
we have been unable to isolate the e-mails from Tomastik,
Tugend, Simmers. Accordingly, we will continue reviewing
our e-mail files for those gentlemen as well as Husted, Kell,
and Loucas.
If I can be of further assistance with this request, please feel
free to contact me. Thanks [sic] you.
{¶ 72} 19. On April 18, 2012, Bott sent the following e-mail to Rowan:
Mr. Rowan-
While our e-mails below demonstrate our intent to work
cooperatively with ODNR towards the production of records,
your response does not indicate a similar spirit. As such, we
now believe, given the position that you have chosen to take,
we must preserve the record as we anticipate a Mandamus
Action filing will be necessary shortly. To that end, please
keep in mind the following information as you determine
whether or not to produce public records:
 At Mr. Husted's April 10, 2012 deposition, he pulled
out a 2009 e-mail that had never been produced to us.
He also testified that the e-mail came from his ODNR
computer. In response, I asked Ms[.] DeLisi, below, to
produce all documents that have yet to be produced.
This is not a new request. Rather, these documents
should have been turned over in response to three
public records requests dated May 17, 2011,
October 27, 2011 and February 3, 2012. It is quite
disappointing first that you would have a witness
show up to a deposition with a document that has
No. 12AP-448 32
never been produced and even more disappointing
that you chose to take such a relaxed attitude about a
public agency's responsibility under Ohio public
records law.
 As to timing, while you seem to believe that "prompt"
production does not mean 7-10 days, we have not
found a single court who has determined that 11
months, 6 months and 2 months (length of our
pending requests) is timely or prompt under similar
circumstances. See, State v. Cleveland (24 days is not
prompt). Regarding your rights to a pre-release
review, that point is irrelevant to your statutory duties
as a public agency. Certainly a court would likely view
11 months as ample time for your pre-release review.
 Moving to ODNR's records retention policy, three
points are relevant. First, we have had a records
request pending since May 2011; thus, you have been
on notice not to destroy records for almost a year.
Second, at least since May 2011, with the Nally letter
to Mustine, ODNR has been on notice of pre-litigation
based on post-permit policy shifts, a fact you
personally know based on a meeting in June 2011.
Thus, ODNR had and has a legal duty to place a
litigation hold on all relevant records. As such, we
would be shocked to learn that such records have been
destroyed despite your full knowledge that litigation
was imminent and your agency had relevant
records/evidence. Third, Mr. Husted was able to pull
up and print a 2009 e-mail. As such, it is obvious that
ODNR maintains 2009 records—despite your agency's
policy, if the records exist, they must be produced.
 Finally, while you state that you are "unaware" of the
Patriot/Warren hearing schedule and that it has no
relevance, we certainly disagree with both points.
First, your AGs, who are copied on your e-mail, filed a
request just last week in the same case on ODNR's
behalf to file an amicus brief. Obviously, based on this
filing, your agency is well aware of the hearing. More
fundamentally, your lawyers also have stated to the
Commission that they intend to file an amicus brief
explaining ODNR's "position" on approval in 2009.
No. 12AP-448 33
We are struck by the irony—ODNR is going to
articulate, three years later, a position in a legal filing
with a court but at the same time claim that no public
records to support its position exist as they have been
destroyed per ODNR's public records retention policy.
Based on your e-mail below, we intend to make ERAC
aware of this inconsistency that prejudices our clients'
rights.
We do hope that you will reconsider your position and
produce all relevant records without delay by, at latest, close
of business tomorrow, April 19, 2012. If not we intend to
move forward swiftly with a Mandamus Action and will seek
fees based on ONDR's [sic] unreasonableness.
As a final note, I am personally disappointed with this turn
of events. As you know, I have worked with ODNR for more
than 15 years under different administrations on all types of
issues primarily with DMRM. During that time, I have
always found ODNR to be a fair, reasonable and professional
agency. Despite differing legal positions, I have always had
respect for your team and have worked well with your
lawyers on a number of important matters. I do hope we can
resolve this issue without the need for any more formal
process. I am asking that you be fair to my clients Warren
and Patriot and follow the law with respect to your
production requirements.
Thank you in advance for your anticipated cooperation.
(Emphasis sic.)
{¶ 73} 20. According to Rowan's affidavit, he took the following steps to re-
evaluate ODNR's response to relator's public records requests:
[Forty-six] In order to re-evaluate ODNR's public records
responses to the May 17, October 27, and Feb. 3 public
records requests, I took the following steps: (1) utilized
ODNR IT resources to perform extraordinary searches in
regard to employee e-mails; (2) asked employees to look
again for responsive records and verified that everyone
identified provided records or did not have records. See
Respondent's Ex. B, pp. 226-333.
No. 12AP-448 34
[Forty-seven] On April 19, 2012, after taking the steps
outlined in paragraph 46, I provided the BLG with records
and a corresponding cover letter in response to its "April 10
E-mail Follow-up Public Record Request." See Stipulated Ex.
19; Respondent's Ex. E.
[Forty-eight] Respondent's Ex. E contains 534 e-mails with
over 300 corresponding attachments, totaling over 7,000
pages.
[Forty-nine] To the best of my knowledge and effort all
documents responsive to BLG's May 17, October 27, and
Feb. 3 public records requests were identified or provided to
the BLG at the time of the original responses. It was only
after BLG alleged that ODNR had not provided a particular
e-mail document that I became aware of its existence. After
discussing the manner in which this e-mail was produced
with the author, it was my understanding that only the
author could have identified and retrieved it. See,
Respondent's Ex. B, p. 308. Nevertheless, ODNR undertook
the additional measures outlined above to satisfy BLG's
demand that ODNR "immediately confirm the [sic] all
responsive documents from Husted, Kell & Loucas's [sic]
files have been identified and will be produced to us
immediately." See Respondent's Ex. B, p. 231. To ensure that
no stone was left unturned, we deliberately broadened the
scope of the e-mail searches executed by ODNR IT. And, my
concomitant review and evaluation of the responsiveness of
those e-mails was similarly liberalized, again, to err in favor
of disclosure. See Respondent's Ex. B, pgs. 233-234.
{¶ 74} 21. Two additional e-mails were ultimately identified. The first is a July 7,
2009 e-mail sent from Husted to Kell and Tomastik. That e-mail forwarded to Kell and
Tomastik an e-mail dated July 6, 2009 originally sent from Jennifer Lynch to Husted,
Loucas, and Rich Milleson. Attached to that e-mail was a July 6, 2009 letter from Chris
Korleski of the Ohio Environmental Protection Agency ("EPA") to Michael Mearini with
the city of Ashtabula. According to the e-mail, Patriot Water had already been notified of
the substance of the July 6, 2009 letter.
No. 12AP-448 35
{¶ 75} 22. The second e-mail is dated December 5, 2010 and was sent from Mike
Shelton to Husted, Tugend, and Milleson. Attached to that e-mail was a copy of a press
release dated December 3, 2010.
{¶ 76} 23. Thereafter, on May 25, 2012, relator filed this complaint for a writ of
mandamus asserting that ODNR failed to promptly provide records relative to relator's
May 17 and October 27, 2011, and the February 3, 2012 public records requests because
ODNR released additional records many months after the original public records requests
were made. Relator asserts that it is a party aggrieved by ODNR's failure to promptly
prepare the public records and asks this court to award costs and reasonable attorney
fees.
Conclusions of Law:
{¶ 77} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 78} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St. 3d 28 (1983).
{¶ 79} The purpose of the Ohio Public Records Act "is to expose government
activity to public scrutiny, which is absolutely essential to the proper working of a
democracy." State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St. 3d
261, 264 (1997), citing State ex rel. WHIO—TV—7 v. Lowe, 77 Ohio St. 3d 350, 355 (1997).
Scrutiny of public records allows citizens to evaluate the rationale behind government
decisions so government officials can be held accountable. White v. Clinton Cty. Bd. of
Commrs., 76 Ohio St. 3d 416, 420 (1996).
{¶ 80} The appropriate remedy to compel compliance with R.C. 149.43, Ohio's
Public Records Act, is mandamus. State ex rel. Physicians Commt. For Responsible
Medicine v. Bd. of Trustees of Ohio St. Univ., 108 Ohio St. 3d 288, 2006-Ohio-903. R.C.
149.43 must also be construed liberally in favor of broad access, and any doubt must be
No. 12AP-448 36
resolved in favor of disclosure of public records. State ex rel. Cincinnati Enquirer v.
Hamilton Cty., 75 Ohio St. 3d 374 (1996).
{¶ 81} R.C. 149.43 pertains to availability of public records and provides, in
pertinent part:
(A)(1) "Public record" means records kept by any public
office, including, but not limited to, state, county, city,
village, township, and school district units * * *.
***
(B)(1) Upon request and subject to division (B)(8) of this
section, all public records responsive to the request shall be
promptly prepared and made available for inspection to any
person at all reasonable times during regular business hours.
Subject to division (B)(8) of this section, upon request, a
public office or person responsible for public records shall
make copies of the requested public record available at cost
and within a reasonable period of time. If a public record
contains information that is exempt from the duty to permit
public inspection or to copy the public record, the public
office or the person responsible for the public record shall
make available all of the information within the public
record that is not exempt. When making that public record
available for public inspection or copying that public record,
the public office or the person responsible for the public
record shall notify the requester of any redaction or make the
redaction plainly visible. A redaction shall be deemed a
denial of a request to inspect or copy the redacted
information, except if federal or state law authorizes or
requires a public office to make the redaction.
(2) * * * If a requester makes an ambiguous or overly broad
request or has difficulty in making a request for copies or
inspection of public records under this section such that the
public office or the person responsible for the requested
public record cannot reasonably identify what public records
are being requested, the public office or the person
responsible for the requested public record may deny the
request but shall provide the requester with an opportunity
to revise the request by informing the requester of the
manner in which records are maintained by the public office
No. 12AP-448 37
and accessed in the ordinary course of the public office's or
person's duties.
(3) If a request is ultimately denied, in part or in whole, the
public office or the person responsible for the requested
public record shall provide the requester with an
explanation, including legal authority, setting forth why the
request was denied. If the initial request was provided in
writing, the explanation also shall be provided to the
requester in writing.
(C)(1) If a person allegedly is aggrieved by the failure of a
public office or the person responsible for public records to
promptly prepare a public record and to make it available to
the person for inspection in accordance with division (B) of
this section or by any other failure of a public office or the
person responsible for public records to comply with an
obligation in accordance with division (B) of this section, the
person allegedly aggrieved may commence a mandamus
action to obtain a judgment that orders the public office or
the person responsible for the public record to comply with
division (B) of this section, that awards court costs and
reasonable attorney's fees to the person that instituted the
mandamus action, and, if applicable, that includes an order
fixing statutory damages under division (C)(1) of this section.
If a requestor transmits a written request by hand delivery or
certified mail to inspect or receive copies of any public record
in a manner that fairly describes the public record or class of
public records to the public office or person responsible for
the requested public records, except as otherwise provided in
this section, the requestor shall be entitled to recover the
amount of statutory damages set forth in this division if a
court determines that the public office or the person
responsible for public records failed to comply with an
obligation in accordance with division (B) of this section.
The amount of statutory damages shall be fixed at one
hundred dollars for each business day during which the
public office or person responsible for the requested public
records failed to comply with an obligation in accordance
with division (B) of this section, beginning with the day on
which the requester files a mandamus action to recover
statutory damages, up to a maximum of one thousand
No. 12AP-448 38
dollars. The award of statutory damages shall not be
construed as a penalty, but as compensation for injury
arising from lost use of the requested information.
{¶ 82} As above indicated, public offices are required to promptly prepare records
and transmit them within a reasonable period of time after receiving the request for the
copy. The term "promptly" is not defined in the statute. However, statutes in other states
give their agencies from between 3 and 12 days from the date the public records were
requested to make the documents available. The word "prompt" is defined as "performed
readily or immediately." Webster's Eleventh New Collegiate Dictionary 994 (2005).
{¶ 83} ODNR has provided relator with copies of documents related to relator's
multiple public records requests. According to Rowan's affidavit, when initially
responding to relator's public records requests, ODNR staff took steps to locate all
documents responsive to relator's requests. Although relator appears to contend that
ODNR is still in possession of documents which are responsive to relator's public records
requests and which ODNR should provide, there is no evidence in the record to indicate
that relator is correct. As such, to the extent that relator's mandamus action seeks to
compel ODNR to produce those documents, the matter is moot. See State ex rel.
Cranford v. Cleveland, 103 Ohio St. 3d 196, 2004-Ohio-4884, ¶ 23, quoting State ex rel.
Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis, 98 Ohio
St.3d 126, 2002-Ohio-7041. " 'In general, the provision of requested records to a relator
in a public-records mandamus case renders the mandamus claim moot.' " Id.
{¶ 84} However, R.C. 149.439(C)(1) provides that an award of statutory damages,
can be awarded even if the documents have been provided. In this mandamus complaint,
relator specifically seeks an award of statutory damages. This determination is not
rendered moot simply because ODNR has now provided relator with the documents he
requested.
{¶ 85} With regard to relator's request for statutory damages, relator has the
burden to demonstrate that ODNR's response to its public records requests was
unreasonably delayed. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160,
2005–Ohio–4384. Further, a review of R.C. 149.43(B)(1) reveals that the state of Ohio has
No. 12AP-448 39
not set a required time period for a public office to respond to a request for copies of
public records. The only requirement is that the copy be made available in a reasonable
period of time.
{¶ 86} As indicated in the findings of fact, Rowan received relator's May 17, 2011
request on May 17, 2011. At that time, Rowan notified ODNR employees and directed
them to forward the request to appropriate staff for review and response. Three weeks
later, on June 6, 2011, Rowan provided relator with documents which were responsive to
the request and indicated that staff was still searching for additional documents. On June
30, 2011, Rowan provided relator with additional documents.
{¶ 87} According to Rowan's affidavit, Denise McCoy received relator's October 27,
2011 e-mail public records request on October 27, 2011 and she forwarded it to Rowan. In
a letter dated November 1, 2011, Rowan advised relator as follows:
With respect to your bulleted requests, please be advised
they lack clarity, are over inclusive, and require what would
be a complete duplication of ODNR's files relative to
specifically identified names and topics. In addition, these
items request records that are not kept or maintained by the
department. Although a public office may deny a request that
is overly broad and vague, ODNR will endeavor to identify
any records that are responsive to your request as submitted
based upon the manner in which department records are
currently organized. See, State ex rel. Dillery v. Icsman, 92
Ohio St. 3d 312, 2001-Ohio-193; State ex rel. Glascow v.
Jones, 119 Ohio St. 3d 391, 2008-Ohio-2788.
Relator responded in an e-mail dated November 8, 2011:
I am writing to follow-up on the public records request I
made to ODNR on October 27, 2011 and your letter
responding to my request of November 1, 2011. While I
disagree with your characterization of the requests as
unclear, over-inclusive, and requiring complete duplication,
I appreciate ODNR's willingness to identify responsive
records. I also note that my request was limited in time to
May 1, 2011 to the present, and additionally I ask that you
please identify any aspect of my request that you feel lacks
clarity, so that I can assist you in clarifying it. Do you have an
estimate on when I might receive a response to the requests
No. 12AP-448 40
made? Please let me know if you have any additional
questions.
{¶ 88} On November 10, 2011, two weeks after the October 27, 2011 request,
Rowan sent the first set of records to relator. On November 23, 2011, additional
documents were mailed to relator.
{¶ 89} Relator's February 3, 2012 public records request was received by Beth
Wilson who forwarded the request to Rowan on February 6, 2012. On March 5, 2012,
ODNR provided relator with documents responsive to the February 3, 2012 request.
{¶ 90} ODNR responded to relator's request in three weeks, two weeks, and four
weeks time periods. After reviewing the public records requests and after considering the
affidavits in the record, the magistrate finds that relator has not met its burden of proving
that ODNR did not respond promptly. To the extent that relator asks this court to
consider ODNR's most recent submission of documents as the time-frame in which to
evaluate the promptness of ODNR's response, the magistrate does not believe that is
warranted or proper. Given the volume of public records requests received by ODNR, as
well as the complexity and expansive nature of relator's requests for documents, the
magistrate finds that ODNR responded promptly and finds that, after being informed that
certain documents had not been provided, ODNR took steps in order to ensure that
relator was provided with each and every document responsive to relator's public records
requests. Finding that relator has not demonstrated that ODNR did not respond
promptly, the magistrate finds that an award of statutory damages and attorneys fees is
unwarranted.
{¶ 91} Relator also argues that ODNR was required to help relator narrow the
search for records. Relator believes that R.C. 149.43(B)(2)'s requirement that the public
office must "provide the requestor with an opportunity to revise the request by informing
the requestor of the manner in which records are maintained by the public office and
accessed in the ordinary course of the public office's or person's duties" places a duty on
ODNR to inform relator that the request was ambiguous or overly broad and to help
relator modify the request.
No. 12AP-448 41
{¶ 92} First, Rowan did inform relator that the October 27, 2011 public records
request was overly broad; however, relator disagreed. Specifically, relator noted further
that the request was limited to a specific period of time and asked Rowan to explain what
needed clarifying. Thereafter, Rowan saw to it that the proper people were apprised of
relator's request. Those people took the steps necessary to retrieve relevant records and
those records were made available to relator.
{¶ 93} Relator spends a considerable amount of time in its brief focusing on the
issue of whether or not its public records request was ambiguous and overly broad.
Specifically, as relator indicates, pursuant to R.C. 149.43(B)(2), a public office may deny a
public records request if it is ambiguous, overly broad, or if the records requested are not
reasonably identifiable. Relator asserts that ODNR had a duty to explain the manner in
which the request was ambiguous or overly broad. Relator asked Rowan to identify that
portion of the request that lacked clarity and asserts that Rowan did not.
{¶ 94} Here, although Rowan informed relator that the request was ambiguous
and overly broad, Rowan did not deny the request on those or any other grounds.
Instead, Rowan saw to it that records were accessed and provided.
{¶ 95} Relator's argument that these three public records requests were not
ambiguous or overly broad and ODNR's assertions that these three requests were
ambiguous and overly broad are only material where a public office does not provide
records in a timely manner. As noted earlier in this decision, the magistrate has
determined that ODNR did respond timely to these three public records requests.
Relator's real argument is that ODNR failed to provide three e-mails which were
responsive to relator's request. As noted previously, the July 7, 2009 e-mail contained a
letter dated July 6, 2009 from the EPA to the city of Ashtabula. Further, pursuant to that
e-mail, one of relator's clients, Patriot Water, on whose behalf relator asserts it sought
these documents in the first place, had already been notified of the substance of the letter.
Further, the December 5, 2010 e-mail contained an attachment of a December 3, 2010
news release. Relator has never asserted that it had not been provided with a copy of this
No. 12AP-448 42
news release or that it never saw the news release. So, two of the three e-mails appear to
contain information that relator would have already had.
{¶ 96} The third e-mail, dated July 21, 2009, discusses a letter that the EPA sent to
Patriot Water with guidelines regarding what waters can be treated, references proposed
legislation and indicates that Patriot Water was a new company that was proposing to
manage brine in a manner that has never been approved in Ohio and which would be
regulated by the Ohio EPA. Nothing in this e-mail appears to be new information of
which relator's clients would not already be aware. It is one e-mail among hundreds
which were turned over to relator. Because the magistrate has already found that ODNR
responded promptly, there is no reason to determine whether or not relator's request
were ambiguous or overbroad. Based upon the affidavits, ODNR has provided relator
with all the documents related to the public records requests and there is nothing that a
writ of mandamus could compel here.
{¶ 97} Finding that ODNR responded promptly to relator's public records
requests, relator is not entitled to a writ of mandamus. Further, relator has not
demonstrated that it is entitled to an award of statutory damages or attorney fees. As
such, it is this magistrate's decision that this court should deny relator's request for a writ
of mandamus.
/s/Stephanie Bisca Brooks
STEPHANIE BISCA BROOKS
MAGISTRATE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).