Ryan v. Ashtabula , 2023 Ohio 621 ( 2023 )

[Cite as Ryan v. Ashtabula, 2023-Ohio-621.]
IN THE COURT OF CLAIMS OF OHIO
JAMES RYAN Case No. 2022-00660PQ, 2022-00665PQ
and 2022-00680PQ
Requester
Special Master Todd Marti
v.
REPORT AND RECOMMENDATION
CITY OF ASHTABULA
Respondent
{¶1} The matters before the Court are the complaints and responses/motions to
dismiss filed in each of these cases. The Special Master recommends that:
- All of Requester’s claims in Case 2022-00660PQ be dismissed pursuant to Civ. R.
12(B)(6) and that costs be assessed against Requester.
- Requester’s claims for monetary and declaratory relief in Case 2022-00665PQ
be dismissed pursuant to Civ. R. 12(B)(6), that his claim seeking production of records
be dismissed as moot, and that costs be assessed against Requester.
- Requester’s claims for monetary and declaratory relief in Case 2022-00680PQ
be dismissed pursuant to Civ. R. 12(B)(6), that his claim seeking production of records
be dismissed as moot, and that costs be assessed against Requester.
I. BACKGROUND
{¶2} These three cases are part of a long running dispute between the parties that
escalated to criminal proceedings at one point. The substance of the dispute is immaterial
to these cases and hence the Special Master will not address it.
{¶3} Case No. 2022-00660PQ involves several requests for records concerning
the facts of the underlying dispute. Requester James Ryan seeks to compel the City of
Ashtabula (The City) to produce the records or make certain statements about the non-
existence of responsive records, monetary sanctions, and a declaration about a City
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Case No. 2022-00665PQ
Case No. 2022-00680PQ
official’s obligations under her bond and oath of office. Ohio Court of Claims Public
Records Access Formal Complaint, filed September 7, 2022 (660 Complaint), pp. 2- 15.1
{¶4} Both Case No. 2022-00665PQ and Case No. 2022-00680PQ concern
requests for native format copies of records the City previously produced in PDF or paper
formats. Ryan seeks copies of those emails in native format, monetary sanctions, and a
declaration about the same City official’s obligations under her bond and oath of office.
Ohio Court of Claims Public Records Access Formal Complaint, filed September 9, 2022
(665 Complaint), pp. 2-5; Ohio Court of Claims Public Records Access Formal Complaint,
filed September 19, 2022 (665 Complaint), pp. 2-5.
{¶5} Mediation was not successful, the cases were returned to the active docket,
and were consolidated because they involve common issues of law and fact. Order,
entered January 12, 2023 (January Order). The parties were required to produce
additional information pursuant to R.C. 2743.75(E)(3)(c). Id.; Order, entered February 6,
2023 (February Order). That information has either been produced or the time for doing
so has expired without a response. Response to Order of January 12, 2023, filed
January 24, 2023 (City Response); Affidavit, filed February 14, 2023 (City Aff.).
II. CASE NO. 2022-00660PD
{¶6} This case involves three public records requests and seeks three types of
relief. The City has moved to dismiss it pursuant to Civ. R. 12(B)(6). The Special Master
recommends that the City’s motion be granted.
{¶7} To dismiss a claim under Civ R. 12(B)(6), it must appear beyond doubt the
claimant can prove no set of facts warranting relief after all factual allegations of the
complaint are presumed true and all reasonable inferences are made in claimant’s favor.
State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d
835 (1996). However, a claim is properly dismissed pursuant to Civ. R. 12(B)(6) if the
face of the complaint or its attachments reveal fatal defects in the claim. Doe v.
Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11;
1This report refers to the pagination of all pleadings, motions, and other submissions in the PDF copies
posted on the Court’s docket rather than to any internal pagination of those filings.
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Radtke v. Chester Twp., 2015-Ohio-4016, 44 N.E.3d 295 (11th Dist.), ¶¶ 18, 31-34.
Ryan’s complaint has such defects.
A. First Request
{¶8} This request seeks unspecified emails Ryan allegedly sent to the City in 2021,
as described in a September 2, 2022 email exchange between a City official (Cooper)
and Ryan (referred to as “James”):
“Sep 2 2022 12:00pm [Cooper] The bills are what they are. they will not be altered.
No verbal or written statements will be given to you. We do not accept that either
of these people were squatters, nor do you claim so in your emails from 2021. If
you want to sue her, do so, but we will not be changing bills.
Sep 2 2022 12:02pm [Ryan] I hereby make the public request for any such email.”
660 Complaint, p. 9 (Emphasis sic.)
The face of Ryan’s complaint reveals two independently fatal defects in this request.
{¶9} First, Ryan has not pled a request for identifiable records. A requestor
invoking R.C. 2743.75 must “plead *** facts showing that the requester sought an
identifiable public record[.]” Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163
Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33 (Emphasis added.) Ryan’s
request does not point to any particular record, but instead refers to the entire body of
emails he sent in 2021. Further, other portions of his complaint illustrate that that body
was large and diverse. See 660 Complaint, pp. 21-89. Ryan sought a whole category of
records received over an extended period of time, an overbroad request. State ex rel.
Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶¶ 4-5, 17-19
(request for all emails for a six-month period overbroad). The Special Master therefore
finds that Ryan has failed to plead that he sought sufficiently identifiable records.
{¶10} Although the City apparently violated R.C. 149.43(B)(2) by failing to help
Ryan frame a more precise request, that oversight does not warrant relief because Ryan
has not raised that violation or sought any relief regarding it. See State ex rel. ESPN, Inc.
v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶¶ 10-15.
{¶11} Second, the complaint negates the existence of a valid, pending, request. A
requester’s right to judicial relief is fixed by the scope of the request pending when the
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case is filed. King v. Dept. of Job & Family Servs., Ct. of Cl. No. 2018-00416PQ, 2018-
Ohio-3477, ¶ 10. A public record “plaintiff may not expand the scope of his request”
through litigation “once his original request is made.” Coss v. United States DOJ, 98 F.
Supp. 3d 28, 34 (D.D.C.2015) (construing the federal Freedom of Information Act).
{¶12} Ryan’s complaint unambiguously states that he withdrew his first request
before filing this case. The first request was originally made at 12:02 PM on September
2, 2022, but by 12:21 PM the same day he “replace[d] [the] public record request [he] just
sent” with what ended up being the second request underlying this case. 660 Complaint,
pp. 10, 93. That revised request superseded the first request. Little Turtle Civic Assoc. v.
City of Columbus, Ct. of Cl. No. 2021-00370PQ, 2021-Ohio-4439, ¶ 12. That first request
was never remade and hence was no longer pending when this case was filed on
September 7, 2022. It therefore provides no basis for judicial relief.
{¶13} Both of these defects are evident from the face of the complaint and hence
support dismissal pursuant to Civ. R. 12(B)(6).
B. Second Request
{¶14} Ryan’s second request states:
“I replace my public request that I just sent on this thread with:
I hereby request the following:
1. Any emails referred to below by Cooper implying or stating that Mike miller is a
tenant
2. Any records supporting that Kat was a tenant after January 15 2022.” 660
Complaint, pp. 10, 93.
This request is facially invalid in two respects.
{¶15} The first numbered part of this request fails because it did not request an
identifiable record. As discussed above, a party invoking R.C. 2743.75 must plead that
he requested “an identifiable public record[.]” Welsh-Huggins, 163 Ohio St.3d 337, ¶ 33.
This request, made at 12:21 PM, referred back to Ryan’s exchange with Cooper at 12:00
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and 12:02 PM, but as previously explained, that exchange referenced a body of emails
sent over an extended time. He therefore failed to request an identifiable record.
{¶16} As with Ryan’s first request, the City seems to have violated R.C.
143.49(B)(2)’s mandate to help Ryan formulate a proper request, but that violation does
not change the outcome of this case because Ryan has not pressed a claim under that
subsection. ESPN, Inc., 132 Ohio St.3d 212, ¶¶ 10-15.
{¶17} The second numbered part of this request was not proper because it sought
information. Rather than identifying particular records, it effectively sought an explanation
for the City’s decision in the underlying dispute by requesting otherwise unidentified
records “supporting” that decision. Such requests are beyond the scope of R.C. 149.43.
For example, in Ebersole v. City of Powell, Ct. of Cl. No. 2018-00478PQ, 2018-Ohio-
4597, ¶¶ 32-34; Wilhelm v. Jerusalem Twp. Zoning, Ct. of Cl. No. 2020-00342PQ, 2020-
Ohio-5283, ¶¶ 7, 9-10.
{¶18} Both of these defects are evident from the face of the complaint and hence
support dismissal pursuant to Civ. R. 12(B)(6).
C. Third Request
{¶19} Ryan’s Third Request was for “accurate [] invoices” reflecting his view of
the facts in his underlying dispute with the City. 660 Complaint, pp. 13-14, 95 (Emphasis
in original.)
{¶20} That request is facially invalid because it requests the creation of new
records rather than the production of existing records. Public offices “have no duty to
create *** nonexistent records.” State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-
Ohio-609, 861 N.E.2d 530, ¶ 15; State ex rel. Cioffi v. Stuard, 11th Dist. Trumbull No.
2009-T-0057, 2010-Ohio-829, ¶ 21; Foulk v. City of Upper Arlington, Ct. of Cl. No. 2017-
00132-PQ, 2017-Ohio-4249 ¶ 6, Adopted, 2017-Ohio-5767. This request seeks just that;
Ryan asks the City to create new, previously non-existing, records that reflect his view of
the facts in the underlying dispute. Therefore, the Special Master finds that it is a facially
invalid request, providing grounds for Civ. R. 12(B)(6) dismissal.
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D. Relief Requested
{¶21} Ryan’s complaint seeks three types of relief. None are available.
{¶22} Ryan seeks an order compelling the City to either produce the requested
records or to “affirmatively state that the City has diligently looked and has no records at
all” that are responsive to his requests. 660 Complaint, pp. 14-15, ¶¶ 1-3. He is not
entitled to the production of records because he has not made proper requests, as
explained above. Nor is he entitled to the compelled statements he seeks. R.C. 149.43
addresses the production of records; it does not require a public office to make the types
of explanatory statements Ryan seeks. State ex rel. Morabito v. City of Cleveland, 8th
Dist. Cuyahoga No. 98829, 2012-Ohio-6012, ¶¶ 7, 14.
{¶23} Ryan also seeks monetary sanctions against the City. 660 Complaint, p. 15,
¶ 4. While monetary relief in available in a mandamus action, it is not among the types
of relief authorized in cases brought under R.C. 2743.75. It is therefore unavailable here.
See Assn. of Cleveland Fire Fighters IAFF Local 93 v. City of Cleveland, Ct. of Cl. No.
2020-00103PQ, ¶ 10, adopted 2020-Ohio-4902.
{¶24} Ryan further asks the Court to declare “that since [Cooper, a city official]
chose to be the point of contact for Public Records Requests/ Custodian of Records she
is also putting her bond and oath that her public record responses are 1) based on a
diligent search for the records in question, 2) complete and the content therein is accurate
to her best belief, and 3) made in good faith.” 660 Complaint, p. 15, ¶ 5. While the precise
nature of that declaration is less than clear, it is clear that whatever Ryan seeks is beyond
the Court’s authority. The Court’s remedial powers are set out in R.C. 2743.75(F)(3) and
are limited to the production of documents and awarding costs. There is no authorization
for the type of declaration Ryan seeks.
{¶25} All of those matters are apparent from the face of Ryan’s complaint and
hence provide grounds for dismissal under Civ. R. 12(B)(6).
E. Costs
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Case No. 2022-00680PQ
{¶26} Costs should be assessed against Ryan pursuant to R.C. 2743.09(F), and
R.C. 2303.20 because he implicitly agreed to pay those costs by filing this case. Helfrich
v. Hall, 5th Dist. Licking No. 2021 CA 00077, 2022-Ohio-1852, ¶ 25.
III. CASE NOS. 2022-00665PQ AND 2022-00680PQ
{¶27} The Special Master will analyze these cases together because they are very
similar. In both cases, Ryan made prior public record requests to the City, apparently
without specifying the format for producing responsive records. In both cases, the City
produced PDF or paper copies of the responsive records. In both cases Ryan made later
requests for copies of those same records in their native format. 665 Complaint, p. 3, ¶
4; pp. 10, 11, 12; 680 Complaint, p. 3, ¶¶ 1, 6; p. 9. In both cases the City denied the later
requests. 665 Complaint, p. 3, ¶¶ 6, 7; pp. 7, 8, 9; 680 Complaint, p. 3, ¶¶ 4, 7; p. 7. In
both cases, Ryan seeks production of the native format records responsive to the later
requests, monetary sanctions, and declarations about a City official’s bond and oath.
Complaint, p. 5; 680 Complaint, p. 5. The City moved to dismiss both cases, making
parallel arguments in both cases.
A. The City’s motions to dismiss should be granted in part and denied in
part.
{¶28} The City’s motions to dismiss are based on Civ. R. 12(B)(6). The Special
Master recommends that they be granted in part and denied in part.
{¶29} The City’s motions are well taken as to Ryan’s requests for monetary relief
and declaratory relief about the City official’s bond and oath. That relief is unavailable as
a matter of law for the reasons explained above. Those matters should therefore be
dismissed pursuant to Civ. R. 12(B)(6).
{¶30} The balance of the City’s motions should be denied because Ryan has
alleged sufficient facts to survive the motions. He alleged facts showing facially valid
requests for identifiable public records. He has also alleged that those requests were
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denied. Those allegations must be presumed to be true and state a claim under R.C.
2743.75(D). Welsh-Huggins, 163 Ohio St.3d 337, ¶ 33.
{¶31} The Special Master therefore recommends that The City’s motion to dismiss
be granted as to the monetary and declaratory relief requested in Case Nos. 20022-
00665PQ and 2022-00680PQ, but denied as to the balance of those cases.
B. Ryan’s claims for production of records are moot.
{¶32} “In general, the provision of requested records to a relator in a public-records
*** case renders the *** claim moot.” State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio
St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 8. “A court considering a claim of
mootness for a public records request must first determine what records were requested,
and then whether any responsive records were provided.” Robinson v. Village of
Alexandria, Ct. of Cl. No. 2017-00808PQ, 2018-Ohio-1581, ¶ 6 adopted 2018-Ohio-171.
{¶33} Records requested in these cases are the native format versions of the
records produced in response to Ryan’s previous requests. The City identified those
records in response to the January Order and has sworn that no other responsive records
exist. Id. at ¶¶ 2(D) and (I); City’s Response, p. 1, ¶¶ (B) and (D), pp. 4-18; City Aff., ¶¶
5-6. Despite having the burden of proving the existence of other responsive records, and
despite being ordered to provide evidence of their existence, Ryan has provided no
evidence that other responsive records exist. State ex rel. McCaffrey v. Mahoning Cty.
Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877; ¶¶ 22-26;
February Order, p. 1, ¶¶ 2, 4. The universe of responsive records is therefore fixed by
pp. 4-18 of the City’s Response.
{¶34} The record of these cases indicates that those records were provided to
Ryan. The City’s Response set forth the dates that they were provided. City’s Response,
p. 1, ¶¶ (B) and (D), pp. 4-18. Despite being ordered to do so, Ryan has provided no
evidence that the records were not provided to him. February Order, p. 1, ¶¶ (A) (1) and
(3).
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{¶35} In sum, the Special master finds that the City has provided Ryan with all
records responsive to the requests underlying these cases. His claims for production are
therefore moot.
C. Costs
{¶36} Costs should be assessed against Ryan pursuant to R.C. 2743.09(F), and
R.C. 2303.20 because he implicitly agreed to pay those costs by filing these cases.
Helfrich v. Hall, 5th Dist. Licking No. 2021 CA 00077, 2022-Ohio-1852, ¶ 25.
IV. CONCLUSION
{¶37} The Special Master therefore recommends that:
- All of Requester’s claims in Case 2022-00660PQ be dismissed pursuant to Civ. R.
12(B)(6) and that costs be assessed against Requester.
- Requester’s claims for monetary and declaratory relief in Case 2022-00665PQ
be dismissed pursuant to Civ. R. 12(B)(6), that his claim seeking production of records
be dismissed as moot, and that costs be assessed against Requester.
- Requester’s claims for monetary and declaratory relief in Case 2022-00680PQ
be dismissed pursuant to Civ. R. 12(B)(6), that his claim seeking production of records
be dismissed as moot, and that costs be assessed against Requester.
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
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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).
TODD MARTI
Special Master
Filed February 28, 2023
Sent to S.C. Reporter 3/2/23