Barack v. Thalman
| Decision Date | 09 March 2022 |
| Docket Number | 2021-00228PQ |
| Citation | 2022 Ohio 1355 |
| Parties | ROGER A. BARACK Requester v. MAYOR KATHRYN THALMAN, CITY OF ST. CLAIRSVILLE Respondent |
| Court | Ohio Court of Claims |
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 July 13, 2020, requester Roger Barack made a public records request to respondent Mayor Kathryn Thalman, City of St. Clairsville, stating, in pertinent part:
(Complaint at 4.) On August 20, 2020, Barack's counsel Cory Barack ("Counsel") emailed St. Clairsville Administrative Assistant Jennifer McMillen requesting an update on any response to the request. (Id. at 6.) From August 24, 2020 through February 26, 2021, first McMillen and then Director of Public Service/Safety Jeremy Greenwood advised Counsel that city staff were working on the request, including legal review. (Id. at 6-9.) On March 8, 2021, Counsel sent a litigation hold to the Mayor. (Id. at 2; Supp. Reply at 3-8.) Counsel avers that he (Complaint at 2.) On April 15, 2021, Counsel sent an email to Glick stating, (Id. at 10.) He received no response. (Id. at 2.)
{¶3} On April 27, 2021, Barack filed a complaint alleging denial of access to public records in violation of R.C. 149.43(B). On September 23, 2021 the Mayor filed a response and motion to dismiss (Response), including notice that the office had produced responsive, non-privileged, and non-exempt documents on June 11, 2021 (Response at 2, Mertz Aff. at ¶ 6 Greenwood Aff. at ¶ 5) and delivered additional records on July 21, 2021. (Response at 2.) On October 28, 2021 Barack filed a reply. On October 29, 2021, the Mayor filed a supplemental response with a privilege log, affidavit, and a purported city records retention schedule, and filed unredacted copies of the law firm invoices under seal. On November 19, 2021, the Mayor filed a second supplemental response with a different set of documents purported to be the city's retention schedule. On December 30, 2021, Barack filed additional information. (Supp. Reply.) On February 7, 2022, the Mayor filed a third supplemental response with documents allegedly used in lieu of a proper retention schedule, various excuses for the absence of an approved retention schedule, and affidavits denying the existence of any responsive communications on the personal devices of two former employees.
{¶4} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that 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.
{¶5} The Mayor asserts 1) the claim for production of law firm invoices is moot, and 2) the Mayor has no duty to provide records kept on personal mobile phones of city employees. On consideration, the special master finds these defenses not conclusively shown on the face of the complaint. Moreover, as the matter is now fully briefed these grounds are subsumed in the defense of the merits. It is therefore recommended the motion to dismiss be denied.
{¶6} 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. The Mayor asserts that all requests have been rendered moot by production of records after the complaint was filed. (Response at 2-3.) She has submitted testimony that every record "that exists and is in the possession of the City of St. Clairsville has been provided by the City to Mr. Barack." (Emphasis added.) (Greenwood Aff. at ¶ 5, Mertz Aff. at ¶ 6.) Barack agrees the Mayor has provided all records described in Request No. 2. (Reply at 1 -3.) However, "Requester states that Respondent has not fully complied with its obligation to produce certain communications, as set forth in Requester's written 'Request No. 1,' dated July 13, 2020." (Id. at 3.) Specifically, Barack asserts the Mayor has failed to produce responsive texts, voicemail, and other communications from personal devices of city employees. (Id. at 3-6.)
{¶7} Based on the parties' agreement, the special master finds the claim for production of records in Request No. 2 is moot. The special master further finds that to the extent any communications described in Request No. 1 have been provided to requester, that claim is also moot. However, both Ohio law and the Public Records Policy of St. Clairsville (Oct. 29, 2021 Supp. Response, Privilege Log, Exh. B, Sections 4, 4.1, and 4.2) provide that electronic office records in private accounts must be filed, maintained, and produced in accordance with the Public Records Act. If the Mayor has not sought to retrieve all such records and does not deny they may exist, the claim for their production is not moot.
{¶8} Independent of the claim for production, requester's claim that the delay between his request and production of any records was unreasonable is not moot. State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 19. Accord State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ, 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 31.
{¶9} The overall burden of persuasion in a public records case is on the requester to prove his right to relief by the requisite quantum of evidence. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d, ¶ 34. First, the requester must prove he sought an identifiable public record and the public office did not make the record available. Id. at ¶ 33. The Mayor does not dispute that Roger Barack reasonably identified the records he sought.
{¶10} If a public office asserts that it has searched for and provided all existing records, the requester then has the burden to overcome that denial with clear and convincing evidence that additional responsive records do exist. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 5-10. A requester's mere belief in the existence of more records 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, 976 N.E.2d 877, ¶ 22-26; State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98829, 2012-Ohio-6012, ¶ 13.
{¶11} Barack asserts that during the timeline in his request city employees were observed using personal cell phones in the course of their duties. (Reply at 2, ¶ 5; Cody Barack Aff. at ¶ 4-9.) The affiant does not attest he heard the content of the cellphone use, or that the content of any call was recorded. However, this and the city's policy anticipating that city records may be made and stored on employee's personal communications devices is some evidence that responsive records may exist there. The special master finds that Barack plausibly infers but does not prove by clear and convincing evidence the existence of additional records on personal devices.
{¶12} In response, the Mayor first asserted that she had now provided all records responsive to the request "in the possession of [the city]" (Response...
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