899 N.E.2d 961 (Ohio 2008), 2007-1694, State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs.

Docket Nº2007-1694.
Citation899 N.E.2d 961, 120 Ohio St.3d 372, 2008-Ohio-6253
Opinion JudgePFEIFER, J.
Party NameThe STATE ex rel. TOLEDO BLADE COMPANY v. SENECA COUNTY BOARD OF COMMISSIONERS.
AttorneyFritz Byers, Toledo, for relator. Isaac, Brant, Ledman & Teetor, L.L.P., Mark Landes, Mark H. Troutman, and Mark R. Weaver, Columbus, for respondent.
Judge PanelMOYER, C.J., and LUNDBERG STRATTON, O'CONNOR, O'DONNELL, and CUPP, JJ., concur.
Case DateDecember 09, 2008
CourtSupreme Court of Ohio

Page 961

899 N.E.2d 961 (Ohio 2008)

120 Ohio St.3d 372, 2008-Ohio-6253

The STATE ex rel. TOLEDO BLADE COMPANY

v.

SENECA COUNTY BOARD OF COMMISSIONERS.

No. 2007-1694.

Supreme Court of Ohio.

December 9, 2008

Submitted Sept. 16, 2008.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Fritz Byers, Toledo, for relator.

Isaac, Brant, Ledman & Teetor, L.L.P., Mark Landes, Mark H. Troutman, and Mark R. Weaver, Columbus, for respondent.

PFEIFER, J.

{¶ 1} This is an original action for a writ of mandamus to compel a board of county commissioners (1) to provide access to e-mails sent and received by the commissioners from January 1, 2006, through the August 2007 records requests [120 Ohio St.3d 373] and to do so in response to future requests, (2) to recover the content of requested e-mails that had been deleted by the commissioners and to make the recovered e-mails promptly available for inspection and copying, and (3) to grant attorney fees. We grant the writ to compel the board to make reasonable efforts to recover, at its expense, the requested deleted e-mails and to make them promptly available for inspection. We deny the writ to compel the board to promptly comply with future public-records requests and deny the request for attorney fees.

The Seneca County Courthouse

{¶ 2} In 1884, the Seneca County courthouse was built. In 2002, the electorate rejected a proposed sales-tax increase that would have funded a renovation of the courthouse. After years of public debate concerning whether to renovate the courthouse or to demolish it, respondent, Seneca County Board of Commissioners, commissioned an architectural engineering firm to perform a study of the county government's space requirements to meet future needs.

The Board's Adoption of a Plan

{¶ 3} In August 2006, Seneca County Commissioner Benjamin E. Nutter summarized the architectural engineering study in a 15-year " Space Needs Master Plan." According to the plan, the firm commissioned by the board developed five potential solutions to the county government's space-needs problems, four of which included the demolition of the courthouse. According to Nutter's summary, the board approved a variation of one of the options that included demolition of the courthouse. The information in Nutter's summary had been previously publicly discussed

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when the board considered the architectural engineering report, and each of the commissioners was already familiar with the contents of Nutter's summary. Nutter e-mailed his draft report to the other commissioners so that they would be prepared to vote on it at the next public meeting. Nutter received no e-mail responses from the other commissioners, and no commissioner raised the topic in any meeting until the resolution was considered by the board in an open meeting.

{¶ 4} On August 31, 2006, the board approved the plan. According to a former reporter for the Tiffin Advertiser-Tribune, there had been no public deliberations concerning the specific option selected by the board. She stated that following the meeting, one of the commissioners mentioned that they had e-mailed each other while the plan was being drafted, and the other commissioners appeared to agree with that description of the process. Nutter expressly denied that there were any comments concerning the plan sent between the commissioners by e-mail or that the commissioners talked about the plan outside of the public meetings.

[120 Ohio St.3d 374] {¶ 5} The board's adoption of the plan was not necessary for its potential replacement of the old courthouse. There have been a series of independent board decisions made at open meetings that involve the board's decision to demolish the courthouse.

Records Requests and Responses

{¶ 6} On August 6, 2007, relator, the Toledo Blade Company, requested that the board permit it to review all outgoing and incoming e-mails, including " all sent messages, received messages, deleted messages, and drafts of messages" of Seneca County Commissioners David G. Sauber, Michael A. Bridinger, and Benjamin E. Nutter since January 1, 2007. On August 22, 2007, the Blade requested to review all outgoing and incoming e-mails, including " all sent messages, received messages, deleted messages, and drafts of messages" of Seneca County Commissioners Sauber, Nutter, and Joseph Schock during 2006. The board provided records responsive to the Blade's August 6 request on August 16, withholding only those records that were covered by the attorney-client and work-product privileges. On August 31 and September 4, 2007, the board provided copies of e-mails responsive to the Blade's August 22 request.

{¶ 7} According to the Blade, the board produced no e-mails from Commissioner Nutter's inbox between January 1, 2007, and July 19, 2007, and produced no e-mails from Commissioner Bridinger's inbox or sent-messages folder. The Blade claimed that Commissioner Nutter admitted to deleting e-mails he received between January 1, 2007, and July 19, 2007, and that Commissioner Bridinger admitted deleting all e-mail in his account until he recently began saving e-mail involving county business. In addition, the Blade noted that there were substantial gaps between the dates of e-mails provided by Commissioner Sauber.

{¶ 8} Under the Seneca County schedule for records retention and disposition, e-mail that has a significant administrative, fiscal, legal, or historic value must be retained, and e-mail that has no significant value can be erased. According to the board's clerk, the individual computer user makes the determination as to when the e-mail can be deleted.

{¶ 9} On September 10, 2007, after the Blade advised the board that it knew of additional e-mails responsive to its requests that had not been provided, the board found additional e-mails contained in a hidden archive on Commissioner Nutter's computer. Neither Commissioner Nutter nor the board had previously been

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aware of the folder. The board advised the Blade that same day that it would get the e-mails to them within 48 hours. The board provided these records to the Blade on September 17.

{¶ 10} According to its clerk, the board searched every single folder in the hard drives of the computers of every person from whom e-mails were requested, [120 Ohio St.3d 375] and it provided every available document responsive to the Blade's request. More specifically, Buckeye IT Services, which assisted the board in responding to the requests for e-mails, retrieved the e-mails from " every hard drive of each person from whom emails were requested and found the path for . pst files and then retrieved each .pst file used for that user's account." According to the board's contractor, " [w]hile it may be possible to retrieve additional information from a hard drive with very expensive forensic tools, that information would be considered deleted by the user and would not be available to the user."

Mandamus Action

{¶ 11} Instead of waiting for the board to provide the additional records, the Blade filed this action on September 10. The Blade requests a writ of mandamus to compel the board to (1) make responsive public records available to it promptly and without delay and to do so at all times for future requests, (2) take the necessary steps to recover the content of all requested records that have been deleted and report on the steps taken, and (3) make each of the recovered e-mails promptly available to the Blade for inspection and copying. The Blade also requests an award of its costs, including attorney fees. In addition, the Blade sought ancillary injunctive relief, including a temporary restraining order, to prevent the board from destroying any e-mails relating to the courthouse and implementing any decision to demolish the courthouse. After the board filed a motion to dismiss, we granted an alternative writ on the Blade's mandamus claim, but denied its request for ancillary injunctive relief. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 115 Ohio St.3d 1418, 2007-Ohio-5231, 874 N.E.2d 536.

{¶ 12} After mediation proved unsuccessful, the case was returned to the regular docket, and oral argument was held. This cause is now before the court on the merits.

Ancillary Injunctive Relief

{¶ 13} In the Blade's memorandum in support of its mandamus complaint, the Blade contended that ancillary injunctive relief to prevent the board from proceeding with its planned demolition of the courthouse was required to afford the Blade complete relief so that the board's purported violations of the Open Meetings Act, R.C. 121.22, could be remedied, i.e., that the demolition could be prevented. The board contends that no Open Meetings Act violation occurred. In response, the Blade argues that this is " a case under the Public Records Act [R.C. 149.43], and only under the Public Records Act."

{¶ 14} The court has previously denied the Blade's request for ancillary injunctive relief. State ex rel. Toledo Blade Co., 115 Ohio St.3d 1418, 2007-Ohio-5231, 874 N.E.2d 536.

[120 Ohio St.3d 376]Jurisdictional-Priority Rule

{¶ 15} Before addressing the merits of the Blade's mandamus claim, we reject the board's claim that based on the jurisdictional-priority rule, a lawsuit brought before the commencement of this case in common pleas court by six residents of the county against the board and its commissioners bars this case. In the common pleas court case, the residents filed an amended complaint seeking, among other

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things, a writ of mandamus to compel the board to comply with R.C. 149.43 and other statutes by adhering to a prior writ and maintaining complete minutes of board meetings.

{¶ 16} Under the jurisdictional-priority rule, " ‘ [a]s between [state] courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of prior proceedings...

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