DeCrane v. Cleveland , 2018 Ohio 3476 ( 2018 )

[Cite as DeCrane v. Cleveland, 2018-Ohio-3476.]
SEAN P. DECRANE Case No. 2018-00356PQ
Requester Special Master Jeffery W. Clark
v. REPORT AND RECOMMENDATION
CITY OF CLEVELAND
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 February 16, 2018, Subodh Chandra sent a letter to respondent City of
Cleveland making a public records request on behalf of requester Sean DeCrane for the
following:
1. Personnel records for firefighter Larry Moore including all records of
training and discipline for the time period January 1, 2017 to the present;
2. the current drug-testing policy for the Division of Fire; and
3. all correspondence from the Division of Fire’s drug-testing contractor
between December 1, 2017 and February 1, 2018.
(Complaint at 2.) The Cleveland Public Records Section (PRS) acknowledged receipt
the same day, stating that the request was being processed for response. (Id. at 4.) On
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February 20, 2018, the PRS asked, “Can you please clarify, correspondence to whom
are you requesting [sic].” (Response, Amos Aff. at ¶ 4.) Requester answered on
February 21, 2018:
The request seeks all correspondence from the Division of Fire’s drug-
testing contractor between the specified dates, regardless of the individual
recipients. To the extent any other city department received
correspondence unrelated to the Division of Fire from the same drug-
testing contractor, we do not request such correspondence.
(Id. at ¶ 5.) On March 5, 2018, the PRS sent the City’s response to the clarified request:
The City has reviewed its files and has located responsive records to your
request. This response includes responsive records for parts 1 and 2 of
your request. The 3rd part of your request is overly broad under Ohio
R.C. 149.43(B)(2). We are unable to determine what communications you
seek due to lack of specificity. If you wish, please resubmit your request
and provide clarification and specificity as to what type of communications
you seek and who the communicators are. Please log in to the Cleveland
Public Records Center at the following link to retrieve the appropriate
responsive documents.
***
If you have any questions, or wish to discuss this further, please email
publicrecords@city.cleveland.oh.us or call 216-664-2772.
(Id. at ¶ 6.) DeCrane made no further contact with the PRS regarding these requests.
(Id. at ¶ 8.)
{¶3} On March 6, 2018, DeCrane filed a complaint under R.C. 2743.75 alleging
denial of access to public records in violation of R.C. 149.43(B). Following unsuccessful
mediation, the City filed its answer (Response) on June 13, 2018 stating that it had
timely produced records responsive to requests Nos. 1 and 2, and that it had
properly denied request No. 3 as ambiguous and overly broad. DeCrane filed a reply on
June 26, 2018 in which he accepted that the City had provided all records responsive to
requests Nos. 1 and 2. (Reply at 1.) In response to the court’s June 14, 2018 order to
“identify in as much detail as possible what specific, existing records the City has failed
to produce that are responsive to” request No. 3, DeCrane stated: “responsive
Case No. 2018-00356PQ -3- REPORT AND RECOMMENDATION
correspondence that would likely include information regarding drug tests failed by City
of Cleveland employees and the City official’s reactions to those drug tests.” (Id.)
{¶4} I find that requests Nos. 1 and 2 were timely satisfied prior to the filing of the
complaint, and are therefore moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168,
2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22. For reasons that follow, I find that the City
properly denied request No. 3 as ambiguous and overly broad.
Ambiguous and Overly Broad Request
{¶5} A public office may deny an ambiguous or overly broad public records
request. R.C. 149.43(B)(2). In making a request, “it is the responsibility of the person
who wishes to inspect and/or copy records to identify with reasonable clarity the records
at issue.” State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d
122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. A request for an entire category or type of
records is overly broad and therefore unenforceable:
A general request, which asks for everything, is not only vague and
meaningless, but essentially asks for nothing. At the very least, such a
request is unenforceable because of its overbreadth. At the very best,
such a request is not sufficiently understandable so that its merit can be
properly considered.
State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 756, 577 N.E.2d 444 (10th
Dist. 1989). A request for all email to and from a public official for a five-month period
was found overly broad and improper in State ex rel. Glasgow v. Jones, 119 Ohio St.3d
391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 4-5, 16-19. Accord Zidonis at ¶ 28-32 (all
email between an employee and supervisor for a period of years); State ex rel. Bristow
v. Baxter, 6th Dist. Erie Nos. E-17-060, E-17-067, E-17-070, 2018-Ohio-1973, ¶ 2, 12-
16 (requests for email sent and received by multiple employees for one-month periods);
Salemi v. Cleveland Metroparks, 8th Dist. Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 26
(checks, agreements, meeting minutes, emails, and letters that relate to marketing of
golf course). But see State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 2015-
Case No. 2018-00356PQ -4- REPORT AND RECOMMENDATION
Ohio-2363, 41 N.E.3d 1203, ¶ 25-29 (request for communication between one person
and a specific department for two months found not overly broad). A request for
an officewide search for records referencing an individual is improper. State ex
rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001) (request
for “any and all records generated * * * containing any reference whatsoever to
Kelly Dillery”). A request for communication is ambiguous or overly broad when it
identifies correspondents only as belonging to titles, groups or categories for which
research is required to establish their membership. State ex rel. Oriana House, Inc. v.
Montgomery, 10th Dist. Franklin Nos. 04AP-492, 04AP-504, 2005-Ohio-3377, ¶ 9,
overturned on other grounds, 107 Ohio St.3d 1694, 2005-Ohio-6763, 840 N.E.2d 201;
Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl. No. 2017-00051-PQ,
2017-Ohio-4247, ¶ 11.
{¶6} A public records request is also unenforceable if it is too vague or indefinite
to be properly acted on by the records holder. State ex rel. Dehler v. Spatny, 11th Dist.
No. 2009-T-0075, 2010-Ohio-3052, ¶ 4, 18, aff’d, 127 Ohio St.3d 312, 2010-Ohio-5711.
Indeed, without sufficient specificity for a court to order clear terms of compliance with
the request, the court cannot enforce any alleged non-compliance.
{¶7} Separately, a public office is not obliged to “seek out and retrieve those
records which would contain the information of interest to the requester.” State ex
rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, *3
(April 28, 1993). See Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447,
76 N.E.3d 1171, ¶ 10-11, 19-22 (request to retrieve records containing selected
information, and cull out the ones requester did not want); State ex rel. O’Shea &
Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio App.3d 218, 2010-Ohio-
3416, ¶ 7-11 (8th Dist.) (request for records containing information about personal injury
claims), rev’d in part on other grounds, 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d
297; State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906
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N.E.2d 1105, ¶ 14-15 (request for “[a]ny and all email communications * * * which
reference * * * the ‘evidence-based model’ or education funding in general”) (first ellipsis
sic).
Request No. 3: “all correspondence from the Division of Fire’s drug-testing
contractor between December 1, 2017 and February 1, 2018.”
{¶8} Determination of whether a request is overly broad is based on the facts and
circumstances in each case. Zidonis at ¶ 26. Applying the law to the facts herein:
{¶9} First, DeCrane has requested “all correspondence,” which would include
both paper and electronic communications.
{¶10} Second, the request is not limited to correspondence between identified
persons. The City twice requested DeCrane to provide more specificity as to the records
requested, including “who the communicators are.” (Response at 2-3; Amos Aff. at
¶ 5, 6.) DeCrane did not do so.
{¶11} Third, the request is not limited to specific subjects. Since the Division of
Fire’s drug-testing contractor “also performs medical evaluations, hiring physicals,
return to work physicals, * * * and many other medical services” (Response at 7), “all
correspondence from” the contractor would sweep in correspondence regarding these
services as well. The City requested DeCrane to “provide clarification and specificity as
to what type of communications you seek.” (Response at 2-3; Amos Aff. at ¶ 6.)
DeCrane did not do so.
{¶12} Fourth, neither DeCrane nor the City states that even the drug-testing
correspondence from the contractor is kept in one file or location in the City offices. To
the contrary, the City confirms that correspondence from the contractor would appear in
other departments, because the same contractor is “the drug testing contractor for the
entire City, creating a broad category of records and locations where records could be
found.” (Response at 2.) The request thus requires an officewide search. At the City’s
request, DeCrane clarified that:
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To the extent any other city department received correspondence
unrelated to the Division of Fire from the same drug-testing contractor, we
do not request such correspondence.
At best, the request as clarified would still require the City to search the entire office for
correspondence from the contractor, and then cull out the correspondence that was
entirely “unrelated” to the Division of Fire, a process rejected in Shaughnessy, supra.
{¶13} Fifth, “all correspondence from the * * * contractor” is unlikely to be located
through a simple word search through City email using the contractor’s name (even if
that retrieval method is available), and the City’s written correspondence is not subject
to automated retrieval. “The City does not maintain any system where is [sic] can
search for ‘all correspondence’ (electronic, telephonic, hard copy or otherwise) simply
by the name of an outside company.” (Response at 7.) Thus, DeCrane’s request would
require the City to identify not only the unnamed Division of Fire drug-testing contractor
(which it has, without objection) but also the contractor’s staff email addresses, officer
and employee names, phone numbers, post office box numbers, and street addresses
as identifiers of responsive correspondence. Rather than identifying particular records
that he seeks, DeCrane is asking for a research project on correspondent identifiers,
followed by a manual search throughout the office for all correspondence from those
correspondents.
{¶14} Sixth, while the two-month time period sought would not by itself render an
otherwise proper request invalid, neither does it, by itself, save the request from
ambiguity and overbreadth.
{¶15} Seventh, when required to “identify in as much detail as possible what
specific, existing records the City has failed to produce that are responsive to this
request,” DeCrane responded only that “[t]he City has not provided responsive
correspondence that would likely include information regarding drug tests failed by City
of Cleveland employees and the City official’s reaction to those drug tests.” Neither
phrase identifies specific existing records, and the ambiguous reference to “City
Case No. 2018-00356PQ -7- REPORT AND RECOMMENDATION
official’s reaction” does not appear to fall within the original request for only
correspondence from the drug testing contractor.
{¶16} Instead of identifying with reasonable clarity the records sought, DeCrane’s
request requires the City to conduct a search through the voluminous correspondence
of multiple City departments, using addresses and other identifiers that the City would
first need to research. After compiling the results of this research against
correspondence from the two months specified, the City is requested to cull out any
correspondence “unrelated to” the Division of Fire. Applying the law to these facts and
circumstances, I find that this request is both ambiguous and overly broad, and was
properly denied.
Conclusion
{¶17} Upon consideration of the pleadings and attachments, I recommend that
the court find that DeCrane has failed to establish by clear and convincing evidence that
the City violated R.C. 149.43(B). Accordingly, I recommend that the court issue an order
DENYING DeCrane’s claim for production of records. I further recommend that court
costs be assessed to requester.
{¶18} 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 July 5, 2018
Sent to S.C. Reporter 8/29/18