Darr v. Huber Heights , 2018 Ohio 2911 ( 2018 )


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  • [Cite as Darr v. Huber Heights, 
    2018-Ohio-2911
    .]
    THERESA A. DARR                                      Case No. 2018-00084PQ
    Requester                                     Special Master Jeffery W. Clark
    v.                                            REPORT AND RECOMMENDATION
    CITY OF HUBER HEIGHTS
    Respondent
    {¶1} Requester Theresa Darr sent respondent City of Huber Heights four public
    records requests from August 8, 2016 to October 20, 2016, which were assigned
    Request numbers by the City as follows: #22016, #32016, #42016, and #52016.
    (Complaint at 3-18.) The City advised Darr and her counsel that all four requests were
    duplicates of previous requests to which responsive records had been provided, and
    that all but #22016 were overly broad and failed to identify with reasonable clarity the
    records at issue. The City attempted to provide responsive records or explanations to all
    the requests. (Id. at 19-24; Response, Liberman Aff., Exhs. 1-6.)
    {¶2} On January 22, 2018, Darr filed a complaint under R.C. 2743.75 alleging
    denial of access to public records by the City in violation of R.C. 149.43(B). On
    May 15, 2018, the court was notified that mediation had failed to resolve all disputed
    issues. On May 29, 2018, the City filed a combined response and motion to dismiss
    (Response). On May 31, 2018, the court issued an order requiring Darr to file a reply
    1) listing the requests that had not been satisfied, 2) identifying for each request what
    records the City had already produced, and 3) identifying what specific, existing records
    the City had failed to produce. Darr filed a reply on June 25, 2018 that lists only
    Request #52016, and this report will therefore be confined to that request.1
    1 Although Darr does not directly state in her reply that her other requests have been satisfied, I
    note that mediator Holly True Shaver documented Darr’s withdrawal of Request #32016, and Darr’s
    agreement that Request #22016 had been resolved in its entirety, in her notices filed on March 2, 2018
    and April 16, 2018, respectively.
    Case No. 2018-00084PQ                       -2-     REPORT AND RECOMMENDATION
    {¶3} 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. Cincinnati
    Enquirer v. Hamilton Cty., 
    75 Ohio St.3d 374
    , 376, 
    662 N.E.2d 334
     (1996). 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.
    {¶4} The City moves to dismiss for failure to state a claim on the ground that all
    existing records responsive to Darr’s request have been produced, rendering her claim
    moot.
    Motion to Dismiss
    {¶5} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must
    presume that all factual allegations of the complaint are true and make all reasonable
    inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 
    40 Ohio St.3d 190
    , 192, 
    532 N.E.2d 753
     (1988). Then, before the court may dismiss the complaint, it
    must appear beyond doubt that plaintiff can prove no set of facts entitling him to
    recovery. O’Brien v. Univ. Community Tenants Union, Inc., 
    42 Ohio St.2d 242
    , 245,
    
    327 N.E.2d 753
     (1975). The unsupported conclusions of a complaint are, however, not
    admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193.
    {¶6} The issue of mootness cannot be determined in this case based solely on
    the complaint and attachments thereto. While respondent may provide support for this
    defense in its response, mootness is not proven on the face of the complaint. I therefore
    recommend that the motion to dismiss be DENIED, and the matter determined on the
    merits.
    Case No. 2018-00084PQ                       -3-       REPORT AND RECOMMENDATION
    Request #52016
    {¶7} Request #52016 is contained in a letter dated October 20, 2016 and makes
    the following request for each of twelve named City employees: “Any and All emails
    sent and/or received in [the employee’s official capacity] from 12:10 am April 10, 2015
    until 11:59 pm June 15, 2016.” (Complaint at 14-18.) City counsel handling Darr’s
    requests was in communication with Darr’s legal counsel regarding this and other
    requests, until Darr’s counsel advised that he was no longer representing her on public
    records issues. (Liberman Aff. at ¶ 6-13; Exh. 3.) On July 31, 2017, City counsel sent
    Darr a letter stating 1) that the documents subject to Request #52016 were a complete
    duplication of voluminous files already provided in prior requests, 2) that the request
    was overly broad, and 3) that the delay in responding directly to her was based on his
    belief    that   her   counsel   had    been      representing   her   on   this   request.
    (Id. at ¶ 14; Exhs. 4, 5.)
    Overly Broad Request
    {¶8} A general request for all email to and from a public employee for over five
    months was found overly broad, and therefore an improper request, in State ex rel.
    Glasgow v. Jones, 
    119 Ohio St. 391
    , 
    2008-Ohio-4788
    , 
    894 N.E.2d 686
    , ¶ 4-5, 16-19.
    Accord Zidonis v. Columbus State Community College, 
    133 Ohio St.3d 122
    , 2012-Ohio-
    4228, 
    976 N.E.2d 861
    , ¶ 4, 13, 28-32. Darr’s original request was for all email to and
    from each of twelve public employees, for over fourteen months. Even Darr’s revised
    request for seven weeks of each employee’s email amounts, collectively, to twenty-one
    employee-months of email. In 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, the court found that
    requests for one-month periods of all email sent and received by multiple employees
    Case No. 2018-00084PQ                          -4-      REPORT AND RECOMMENDATION
    was ambiguous and overly broad. I find that Request #52016 constituted an overly
    broad, improper request that the City was entitled to deny, and eventually did deny.
    {¶9} First, the City attempted to satisfy the request using a word search for
    potentially responsive email, despite its reservations that the request was overly broad
    and voluminous. (Response at 7-12; Rogers Aff. at ¶ 9, 12, 17.) However, the City
    violated its statutory obligation to respond properly to the overly broad request at the
    point where it denied, or in the City’s term, “objected to” the request. When an overly
    broad request is denied, R.C. 149.43(B)(2) requires the public office to
    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.
    The statute does not require the office to rewrite the request for the requester, but the
    office should convey relevant information to support revision of the request. Options
    include, but are not limited to: offering to discuss revision with the requester, Zidonis at
    ¶ 4-5, 40; State ex rel. Morgan v. Strickland, 
    121 Ohio St.3d 600
    , 
    2009-Ohio-1901
    , 
    906 N.E.2d 1105
    , ¶ 14-20, providing the requester with a copy of the office’s records
    retention schedule, Zidonis at ¶ 36, or other explanation of how office records are
    maintained and accessed. Id. at ¶ 35. A public office’s voluntary effort to provide some
    responsive records, notwithstanding denial of the request, is considered favorably in
    evaluating its response. Id. at ¶ 39; Morgan at ¶ 6, 14.
    {¶10} When he responded to Darr on July 31, 2017, counsel for the City did not
    accompany the City’s denial for overbreadth with an invitation for Darr to revise the
    requests. He provided no information as to the manner in which records are maintained
    and accessed by the office. This constitutes a per se violation of R.C. 149.43(B)(2).
    State ex rel. ESPN v. Ohio State Univ., 
    132 Ohio St.3d 212
    , 
    2012-Ohio-2690
    ,
    
    970 N.E.2d 939
    , ¶ 10-11. However, as in ESPN, Darr does not ask that respondent be
    ordered to inform her of the way the City maintains its email records, and thus is not
    entitled to relief other than this finding of violation. Id. at ¶ 12-15.
    Case No. 2018-00084PQ                       -5-     REPORT AND RECOMMENDATION
    {¶11} Darr may of course file a new public records request for any specific,
    additional records she believes may exist. In the future, the parties are encouraged to
    make full use of the tools provided by the legislature to narrow overly broad requests.
    See R.C. 149.43(B)(2) and (B)(5). Mutually negotiated narrowing, clarification, or
    otherwise reasonable identification of desired records can help avoid litigation while fully
    accomplishing the purposes of the Public Records Act. To that end, the Act requires
    parties to cooperate early on with the goal of identifying the specific records sought
    while minimizing the burden on the public office. The courts favor reasonable
    cooperation to revise ambiguous and overly broad requests prior to litigation. See
    Morgan at ¶ 15-20.
    Suggestion of Mootness
    {¶12} In an action to enforce R.C. 149.43(B), a public office may produce the
    requested records prior to the court’s decision, and thereby render the claim for
    production moot. State ex rel. Striker v. Smith, 
    129 Ohio St.3d 168
    , 
    2011-Ohio-2878
    ,
    
    950 N.E.2d 952
    , ¶ 18-22. With respect to a list of Darr’s recent public records requests,
    including all four that are the subject of the complaint, the Huber Heights Clerk of
    Council attests:
    On behalf of the City we have provided responses and documents
    responsive to all of Darr’s requests;
    We performed word searches on all terms requested by Darr and have
    produced all documents responsive to the requests.
    (Rogers Aff. at ¶ 8, 16-17.) Darr agrees that the City has produced 5,539 emails in
    response to Request #52016. (Reply at 2.) The City states that “[d]uring the mediation
    alone, the City provided * * * another 2300 pages of emails for #52016” (Response
    at 8, 13), but this is not necessarily inconsistent with the larger overall number Darr
    states she has received in response to this request.
    {¶13} Although respondent provides only a general assertion of full compliance,
    Darr provides no evidence to the contrary other than her belief, based on pro-rating a
    Case No. 2018-00084PQ                       -6-     REPORT AND RECOMMENDATION
    general estimate from the City’s IT department, that there must have been more email
    in that time period. (Reply, Exh. 3.) However, even a reasonable and good faith belief
    by a requester, based only on inference and speculation, does not constitute the clear
    and convincing evidence necessary to establish that responsive documents exist. State
    ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 
    133 Ohio St.3d 139
    , 2012-Ohio-
    4246, ¶ 22-26; State ex rel. Gooden v. Kagel, 
    138 Ohio St.3d 343
    , 
    2014-Ohio-869
    , 
    6 N.E.3d 471
    , ¶ 8. Under these circumstances, I find that the City has met its burden to
    establish that it has provided the records requested in Request #52016. State ex rel.
    Toledo Blade Co. v. Toledo-Lucas County Port Auth., 
    121 Ohio St.3d 537
    , 2009-Ohio-
    1767, 
    905 N.E.2d 1221
    , ¶ 14-16. The claim for production is therefore moot.
    Conclusion
    {¶14} Upon consideration of the pleadings and attachments, I recommend the
    court DENY requester’s claim for production of records. I further recommend that the
    court find that respondent failed to respond to requester’s overly broad request with the
    opportunity and information required by R.C. 149.43(B)(2). I recommend that costs be
    shared equally by the parties.
    {¶15} 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 June 27, 2018
    Sent to S.C. Reporter 7/24/18