Cincinnati Enquirer v. Hamilton Cnty. Bd. of Comm'rs, Case No. 2019-00789PQ

CourtCourt of Claims of Ohio
Writing for the CourtSpecial Master Jeff Clark
Citation2020 Ohio 4856
PartiesTHE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC. Requester v. HAMILTON COUNTY BOARD OF COMMISSIONERS Respondent
Docket NumberCase No. 2019-00789PQ
Decision Date25 August 2020

2020 Ohio 4856

THE CINCINNATI ENQUIRER,
A DIVISION OF GANNETT GP MEDIA, INC.
Requester
v.
HAMILTON COUNTY BOARD OF COMMISSIONERS Respondent

Case No. 2019-00789PQ

Court of Claims of Ohio

To S.C. Reporter October 9, 2020
August 25, 2020


Special Master Jeff Clark

REPORT AND RECOMMENDATION

The Ohio Public Records Act (PRA)

{¶1} "Public records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance." Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 16. "[T]he inherent, fundamental policy of R.C. 149.43 is to promote open government, not restrict it." State ex. rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 398, 732 N.E.2d 373 (2000) ("Besser II"). Public records inform the significant public interest in the use of their tax money and other public funds. State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St.3d 258, 261-263, 602 N.E.2d 1159 (1992). Therefore, R.C. 149.43 must be construed liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12; Besser II at 405.

Request for Communications of Public Officials Regarding Specific Agreements, Including Real Estate Purchases and Leases

{¶2} On November 20, 2018, Sharon Coolidge, a reporter for requester Cincinnati Enquirer, made a public records request to the administrator for respondent Hamilton County Board of Commissioners (the Board), as follows:

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Pursuant to the Ohio Open Records Act (Ohio Rev. Code Ann. Sec. 149.43 to 149.44), I am writing to request emails related to the new Bengals agreement that involves the concert venue and purchasing Hilltop Concrete.

Specifically, I am writing to request copies of the following emails:

Date Range: October 1, 2018 — November 20, 2018

Subject: The CSO Concert Venue at the Banks; and/or Paul Brown Stadium; and/or Hilltop Concrete or any subsidiary thereof

Sender: Jeff Alutto and/or Todd Portune, Chris Monzel, Denise Driehaus, John Bruggen, Judi Boyko, Tom Gabelman

Recipient: Jeff Alutto and/or Todd Portune, Chris Monzel, Denise Driehaus, John Bruggen, Judi Boyko, Tom Gabelman

(Complaint at 3.) Over three months passed. On March 6, 2019, the Board denied the request in its entirety: "After reviewing our files, the only records we located specific to your request are covered by attorney-client privilege and are therefore not subject to release under the Ohio Public Records Act." (Id. at 9.) After additional correspondence, the Board provided the Enquirer with 275 pages of heavily redacted records, with only email headers visible. The substantive content of each email, letter, press release and other communication was obscured. (Id., Exhibit D.)

{¶3} On July 11, 2019, the Enquirer filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). Following unsuccessful mediation, the Board filed a combined response and motion to dismiss (Response) on September 25, 2019. On October 9, 2019, the Board filed an unredacted copy of the withheld records, under seal. On November 20, 2019, the Enquirer filed a response to the motion to dismiss (Reply). On January 27, 2020, the Board filed a privilege log regarding exemptions claimed for the withheld records. On April 8, 2020, the Board filed a descriptive list of correspondents to the withheld emails. On April 28, 2020, the Enquirer filed a further response.

Motion to Dismiss

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{¶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. 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).

A. Failure to Provide Records Promptly

{¶5} "The primary duty of a public office when it has received a public-records request is to promptly provide any responsive records within a reasonable amount of time and when a records request is denied, to inform the requester of that denial and provide the reasons for that denial. R.C. 149.43(B)(1) and (3)." State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11. Timeliness is important because "[w]hen records are available for public inspection and copying is often as important as what records are available." (Emphasis sic.) (Citations omitted.) 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, ¶ 34. This is often significant for media reporters. Id. at ¶ 45. Whether a public office has complied with its duty to respond within a "reasonable period of time" is evaluated based on the pertinent facts and circumstances of each case. State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 19-20, 26-27. The requester bears the burden of demonstrating that the public office's response was unreasonably delayed. Cordell at 12.

{¶6} The Board asks the court to dismiss the claim that it violated the requirement of R.C. 149.43(B)(1) to provide copies of public records "within a

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reasonable period of time." However, the Board admits that it did not respond to the request from November 20, 2018 until March 5, 2019. (Response at 3; Complaint, Greiner Aff. - Exh. B.) The only explanation offered is: "The Respondent misplaced the request and completely forgot that it was made." (Response at 12.) This statement amounts to an admission of negligence rather than support for a legal defense. I find that the absence of any response for three and a half months, without justification, constituted a violation of the timely response requirement in R.C. 149.43(B)(1). Cordell at ¶ 13-14; State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 20-21 (two months without any response constituted unreasonable delay). Moreover, the Board's initial delay had the follow-on effect of delaying the later partial production of redacted records (on May 17, 2019) far beyond a reasonable period of time. (Response at 3-4.) This constituted a further violation of both R.C. 149.43(B)(1) and (B)(7).

{¶7} Public offices are required to organize their offices and employ their staff in such a way as to be able to make records available when requested. R.C. 149.43(B)(2);1 State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 36; State ex rel. Beacon Journal Pub. Co. v. Andrews, 48 Ohio St.2d 283, 289, 2 Ohio Op.3d 434, 358 N.E.2d 565 (1976). The statutory requirement of organization implies capable administrative management of receipt, logging, processing, and response for public records requests. The Board cites no case precedent accepting inadvertence or neglect is a valid defense to an untimely response. The Supreme Court routinely rejects similar excuses for delay such as scarce resources, expense, time involved, or interference with other duties. State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53-54, 689 N.E.2d 25 (1998); Toledo Blade v. Seneca Cty. Bd. of Commrs. at ¶ 36; Beacon Journal v. Andrews at 289. In State ex rel.

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Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, the respondent alleged "that its failure to respond in a timely manner to the request was inadvertent and unintentional." Id. at ¶ 31. The Supreme Court declined to allow "inadvertence" to excuse respondent's violation of its obligation to timely respond. Id. at ¶ 31-33, 43-45. I find that the Board's delay of more than three months in making any response to the written request was not excused by its own misplacement and forgetfulness.

{¶8} The Board further argues as mitigation that when the Enquirer challenged its lengthy initial delay on February 28, 2020, it quickly reviewed the records and advised that the entire request was denied. However, this demonstrated ability to evaluate and deliver a response in six days only undermines the Board's assertion that three months was a reasonable period of time to respond. See Wadd at 53 (City's concession of its capabilities undermined the assertion that records were provided timely). Finally, the record evidences that the Board chose, at that time, to redact essentially all content other than header information from the communications - a minimally time-consuming task. Based on these facts and circumstances, I find that the Board failed to provide the requested records, or to inform Coolidge of denial, within a reasonable period of time after the request was made.

B. Drafts are Records

The Board states that the requested emails "contained draft documents exempt from disclosure." (Response at 7-9.) However, all documents that a public office uses to document its activities are "records" of the office, even if in preliminary or draft form. See, e.g., Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20; State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 232, 729 N.E.2d 1182 (2000); State ex rel. Post v. Schweikert, 38 Ohio St.3d 170, 172-173, 527 N.E.2d 1230 (1988). Specifically, there is no exemption or defense as "non-record" for draft...

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