Cincinnati Enquirer v. Univ. of Cincinnati

• Decision Date: 17 September 2020
• Docket Number: Case No. 2020-00144PQ
• Citation: 2020 Ohio 4958
• Parties: THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC. Requester v. UNIVERSITY OF CINCINNATI Respondent
• Court: Ohio Court of Claims

2020 Ohio 4958

THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC. Requester v. UNIVERSITY OF CINCINNATI Respondent

Case No. 2020-00144PQ

COURT OF CLAIMS OF OHIO

To S.C. Reporter October 19, 2020

September 17, 2020

Special Master Jeff Clark

REPORT AND RECOMMENDATION

{¶1} The Public Records Act provides relief to requesters when the Court of Claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). R.C. 149.43(C)(1); R.C. 2743.75. The policy underlying the Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. "'The Public Records Act serves a laudable purpose by ensuring that governmental functions are not conducted behind a shroud of secrecy.'" (Citation omitted.) State ex rel. ESPN, Inc. v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 40.

{¶2} On January 3, 2020, Max Londberg, a reporter for requester Cincinnati Enquirer, made a public records request to respondent University of Cincinnati (UC) for

- all records shared with Andrea Goldblum, former UC Title IX coordinator, by Lt. David Brinker of UC Police regarding William Houston, the same William Houston shown in the attached photo. All other records shared by anyone else with UCPD with Goldblum regarding Houston.

- All other public records maintained by UC regarding William Houston. and/or an investigation into William Houston, and/or complaints made against William Houston. These should include but may not be limited to:

preliminary reports, sworn affidavits, interview transcripts, police complaint reports, police incident reports, email/text/fax/all other written communications records in the Share Drive or share folder (the same one referenced in the Feb. 12, 2019 notes of Bleuzette Marshall's activities on said day for reference on page 19 of the attached PDF), complaints and/or "no contact" orders filed by UC's Title IX Office, records of any internal investigation conducted by the university's Administrative Review Committee.

(Complaint, Exh. A at 2.) On January 3, 2020, UC acknowledged receipt of the request. (Id., Exh. A at 1-2.) On January 11, 2020, Londberg made a second, partly overlapping request for:

All public files (including but not necessarily limited to: personal notes, written communications, interview transcripts, etc.) pertaining to the investigative case created by Andrea Goldblum on 2/13/19 regarding William Houston and backlash that followed his reception of a triumph cord due to his criminal history in late January-early February 2019.

(Id., Exh. D.) UC sent a response on February 14, 2020 that may be summarized as:

January 3, 2020 Request - Denied. Any law enforcement or other records provided by Lt. Brinker to Goldblum "become education records" protected by FERPA. The "request for 'records maintained by UC regarding William Houston' fails to identify the records wanted with sufficient clarity. * * * However, we did review records held by UC's Police Division and did not locate any law enforcement records responsive to this request."

January 11, 2020 Request - Denied. The request for "the investigative case created by Andrea Goldblum ... regarding William Houston" seeks education records protected by FERPA. "Moreover, the remainder of the request seeking 'backlash that followed his reception of a triumph cord' fails to identify the records sought with sufficient clarity. * * * Please clarify this request to provide a timeframe, custodian, and topic."

(Id., Exh. B.) Requester's and UC's counsel engaged in additional correspondence that did not resolve the requests. (Id., Exhibit C; Response, attached email.)

{¶3} On February 27, 2020 the Enquirer filed a complaint under R.C. 2743.75 alleging denial of access to public records by UC in violation of R.C. 149.43(B). Following partially successful mediation, UC filed a combined response brief and motion to dismiss (Response) on May 22, 2020. On the same date, UC filed a copy of the withheld UCPD records under seal. On June 10, 2020, the Enquirer filed a reply. On June 17, 2020, UC filed a further response as directed by the order of June 5, 2020. On July 9, 2020, the Enquirer filed a response to the order of July 7, 2020. On July 30, 2020, UC filed additional sealed records and a response to the order of July 7, 2020. On August 26, 2020, UC filed a pleading (Supplemental Response) with a redacted, public version of its July 30, 2020 filings. On August 27, 2020, the Enquirer filed a response to UC's August 26, 2020 filings.

Motion to Dismiss

{¶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 motion to dismiss asserts that all records responsive to the requests are required to be withheld under the federal Family Education Rights and Privacy Act (FERPA), and that the request for records "regarding William Houston and backlash that followed his reception of a triumph cord" is overly broad. On review, the complaint neither concedes nor demonstrates these defenses. I therefore recommend the court deny the motion and determine the claim on the merits.

Burdens of Proof

{¶6} In an action to enforce Ohio's Public Records Act (PRA), the burden is on the requester to prove an alleged violation. In mandamus enforcement actions,

[a]lthough the PRA is accorded liberal construction in favor of access to public records, "the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence."

State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153 ¶ 27-30 (5th Dist.).

{¶7} However, when a public office asserts any exception to the release of records under the Act, the burden of proving the exception rests on the public office. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15. Exceptions to disclosure must be strictly construed against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. Id.; State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. Any doubt should be resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).

Records Remaining at Issue

{¶8} In its response to the order of July 7, 2020, requester advised that the records remaining in dispute fall into two categories:

1. "[R]ecords regarding the named student that were shared with a former Title IX coordinator by a Lieutenant with the UC Police Department," and,

2. "records relat[ing] to an investigative case file created by the former Title IX coordinator relating to a 'backlash' over the same student receiving a 'triumph cord' at his graduation ceremony."

(Requester's July 9, 2020 Response at 1-2.) Because the initial validity of a public records request is a threshold determination to be made before evaluating whether the public office has proven any other defense, the second category will be analyzed first.

Ambiguous or Overly Broad Request

{¶9} 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. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. A request that is ambiguous or overly broad may be denied. R.C. 149.43(B)(2).¹ Judicial determination of whether an office has properly denied all or part of a request as ambiguous or overly broad is based on the facts and circumstances in each case, Zidonis at ¶ 26.

{¶10} UC asserts that the portion of Londberg's January 11, 2020 request seeking public files "pertaining to the investigative case created by Andrea Goldblum on 2/13/19 regarding William Houston and backlash that followed his reception of a triumph cord due to his criminal history in late January-early February 2019" is ambiguous and overly broad, and was thus properly denied. UC avers that it complied with R.C. 149.43(B)(2) by inviting "[p]lease revise this request to provide a custodian and a timeframe" (Complaint, Exh. C), implying that this is how UC's relevant records are maintained and accessed, and that Londberg declined to revise the request. (Response at 11-12.) However, on plain reading the request seeks records "pertaining to the investigative case created by Andrea Goldblum on 2/13/19," clearly identifying both the date the investigative case commenced, and the creator - who was also the likeliest custodian. The timeframe is further delineated by the date of the publicity that prompted the investigation, "in late January-early February 2019." The request provides the relevant record identification criteria desired by UC, and is unambiguous as to the particular investigative case file sought.

{¶11} UC appears to argue that the January 11, 2020 request was actually two separate requests; one for an investigation "regarding ...