Ass'n of Cleveland Firefighters v. City of Cleveland

• Decision Date: 13 October 2022
• Docket Number: 2022-00057PQ
• Citation: 2022 Ohio 4006
• Parties: ASSOCIATION OF CLEVELAND FIREFIGHTERS, LOCAL 83 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS Requester v. CITY OF CLEVELAND, OHIO, LAW DEPARTMENT Respondent
• Court: Ohio Court of Claims

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2022-Ohio-4006

ASSOCIATION OF CLEVELAND FIREFIGHTERS, LOCAL 83 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS Requester v. CITY OF CLEVELAND, OHIO, LAW DEPARTMENT Respondent

No. 2022-00057PQ

Court of Claims of Ohio

October 13, 2022

Sent to S.C. Reporter 11/10/22

REPORT AND RECOMMENDATION

{¶1} The Public Records Act requires a public office to make copies of requested public records available at cost and within a reasonable period of time. R.C. 149.43(B)(1). The Act is construed liberally in favor of broad access, with any doubt resolved in favor of disclosure. State ex rel Hogan Lovells U.S., LLP. v. Dept. of Rehab. & Corr. 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12 R.C. 2743.75 provides an expeditious and economical procedure to resolve public records disputes in the Court of Claims.

{¶2} On November 5, 2021, attorney Mark Guidetti on behalf of requester Association of Cleveland Firefighters Local 93 (Local 93) asked an official in the City of Cleveland Department of Human Resources (HR) to "advise as soon as possible as to" nine questions regarding "a policy requiring all members of the Hazmat Unit to undergo physical examinations." (Complaint at 3.) On November 8, 2021 the official copied Guidetti on an email advising she had forwarded the request to "Division of Fire management." (Id. at 5-6.) Guidetti emailed HR on January 7, 2022 for an update and received a reply on January 12, 2022 that the request had been forwarded to "Fire and Law." (Id. at 4-5.) On January 11 and 12, 2022, City counsel and "City of Cleveland - Public records" acknowledged in separate emails that the request would be handled through the City's Public Records Center. (Id. at 7-9.)

{¶3} On February 1, 2022, Local 93 filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records and failure to produce records within a reasonable period of time. On June 22, 2022, the City filed an answer (Response) and a motion to dismiss (MTD). On July 7, 2022, Local 93 filed a reply. On September 2, 2022, the City filed a supplemental response. On September 23, 2022, Local 93 filed a motion to accelerate the case, which is hereby denied as moot.

Burden of Proof

{¶4} The requester in an action under R.C. 2743.75 bears an overall burden to establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist). The requester bears an initial burden of production "to plead and prove facts showing that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or records custodian did not make the record available." Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33.

Motion to Dismiss

{¶5} To dismiss a complaint for failure to state a claim upon which relief can be granted, 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). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10. The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).

{¶6} The City moves to dismiss on the grounds that 1) only two bullet points in Local 93's November 5, 2021 letter seek identifiable public records, 2) it has now produced all available records for both requests and the claim for production is moot, 3) Local 93 has not met its burden to prove that any other responsive records exist, and 4) the four-month delay between the request and the City's production of one record and denial of the remainder of the requests was reasonable.

Requests for Information or Answers to Questions are not Public Records Requests

{¶7} The burden is on Local 93 to prove facts showing that each request sought an identifiable public record. Welsh-Huggins, at ¶ 33. In response to questions or requests for information that do not reasonably identify "records," a public office has no

clear legal duty to seek out and retrieve those records which would contain the information of interest to the requester. Cf. State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St.3d 177, 179, 464 N.E.2d 556. Rather, 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. Fant v. Tober, 8th Dist. Cuyahoga No 63737, 1993 Ohio App. LEXIS 2591, *3-4 (April 28, 1993), aff'd, 68 Ohio St.3d 117, 623 N.E.2d 1201 (1993). Accord State ex rel. Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997) (request for "qualifications of APA members"). This includes requests for records supporting an agency decision. State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98820, 2012-Ohio-6012, ¶ 14 (for information, including "why, how, when, and by whom" a video was destroyed); Kovach v. Geauga Cty. Auditor's Office, Ct. of Cl. No. 2019-00917PQ, 2019-Ohio-5455, ¶ 9-10 (seeking explanations or reasons for the execution of public functions, and to admit or deny factual representations).

{¶8} Local 93's November 5, 2021 letter (Complaint at 3) requests that the City "advise as soon as possible as to" nine bullet-pointed questions. Bullet Point 1 asks:

• Whether the City is instituting or has instituted a policy requiring all members of the HazMat Unit to undergo physical examinations.

This question seeks a yes or no answer, not a document. It requests only information as to whether a type of policy has been instituted. Although not obliged under the Public Records Act to do so, the City answered this question in the negative on March 15, 2022, which effectively answered Bullet Points 2 and 3 as both are conditioned on the existence of such a policy. (Response, Exh. A.) Bullet Point 2 asks:

• If so, when that decision was made.

This question also seeks only information - the naming of a point in time - and does not attempt to identify any office record. Bullet Point 3 asks:

• If so, how that decision was made and who was involved in that decisionmaking process.

This is a question seeking a narrative explanation of how a decision was made and who was involved rather than identifying a specific, existing record. See Morabito at ¶ 14. Bullet Point 4 refers back to the type of policy posited in Bullet Point 1:

• If so, what is that policy (please forward a copy of said policy, if one exists)

Although the first six words are an improper request for information, and the remainder can be understood only by cross-referencing a previous question, the Special Master finds that the parenthetical request is sufficiently specific to identify a record, i.e., "a copy of "a policy requiring all members of the HazMat Unit to undergo physical examinations." The City's counsel acknowledged that this was a request for a record (Complaint at 7-8) and responded that no such record existed. (Response, Exh. A.)

Bullet Points 5 through 8 ask "Please advise as soon as possible as to:"

• The nature of the physical examination - what exactly would be "tested" -medical conditions, physical agility, etc;

• What is the standard being utilized during such examinations;

• How the results of the examinations may be used by the City;

• Who at the City will have access to results of such examination.

These are requests for narrative explanations or information that do not mention records or attempt to identify any existing document.

Bullet Point 9 requests:

• Any records of prior implementation of the City administering such examinations to the HazMat Unit.

Bullet Point 9 does request records. (Complaint at 7-8).

{¶9} The Special Master finds that Bullet Points 1-3 and 5-8 are improper requests for information or answers to questions and fail to state a claim for which relief may be granted under R.C. 149.43. To be clear, these are not flawed records requests that are subject to objection as ambiguous or overly broad. R.C. 149.43(B)(2). They are not requests for records at all and therefore cannot invoke any duty found in R.C. 149.43(B).

{¶10} As its second ground for dismissal, the City asserts that it has now released all public records responsive to Patrick's requests, rendering the complaint moot. (Answer at ¶ 6 and Aff. Defenses ¶ 5; Motion to Dismiss at 2-3.) On review, the special master finds that full satisfaction of the requests is not conclusively shown on the face of the complaint and attachments. Moreover, as the matter is now fully briefed and the court has access to the withheld record in camera, this argument is subsumed in the City's defense on the merits.

{¶11} Finally, the City's assertion that its response was timely is not conclusively shown on the face of the complaint and attachments, as it had neither denied the two proper public requests nor provided any records prior to the filing of this action. As the matter is now fully briefed with the dates of final responses and the City's explanations, this argument is subsumed in the City's defense on the merits.

{¶12} Local 93 has met its initial burden to show that it sought identifiable public records through Bullet Points 4 and 9 and that the City did not make any records available. The Special Master recommends that the motion to dismiss be DENIED as...