Ebersole v. City of Powell

• Decision Date: 09 October 2018
• Docket Number: Case No. 2018-00478PQ
• Parties: BRIAN EBERSOLE Requester v. CITY OF POWELL Respondent
• Court: Ohio Court of Claims

2018 Ohio 4597

BRIAN EBERSOLE Requester v. CITY OF POWELL Respondent

Case No. 2018-00478PQ

Court of Claims of Ohio

To S.C. Reporter November 14, 2018

October 9, 2018

Special Master Jeffery W. Clark

REPORT AND RECOMMENDATION

{¶1} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the court of claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). 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. Therefore, the Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13. Claims under R.C. 2743.75 are determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

{¶2} In late 2017 and early 2018, requester Brian Ebersole sent respondent City of Powell a series of public records requests. (Complaint, Exh. 1 at 1-2, 4-5, 24, 46-47, 55-59, 78-81, 113-114, 144-147, 169-172, 181-182, 199.) Powell produced several hundred pages of responsive records (Id. at 43-44, 49-50, 61-76, 97-109, 128-137, 153-165, 178-179; Lutz Aff. at ¶ 10-11; Reply, Exh. B.3, C, D), but advised Ebersole that some of his requests were improper as requests for non-records, or records that do not exist, and that some records had been withheld pursuant to public records exceptions. (Complaint, Exh. 1 at 61, 71, 76, 153-154, 178-179, 197-198.) After the filing of this action, Powell provided Ebersole with additional records (Response at 7-8; Teetor Aff. at ¶ 2-6, Exh. 1-2; Reply at 5, Exh. B.1, B.2; Corrected Notice of Supplement to Record, Exh. B), and conducted additional searches to confirm that it possessed no additional identifiable records responsive to the requests. (Lutz Aff. at ¶ 11.)

{¶3} On March 16, 2018, Ebersole filed a complaint pursuant to R.C. 2743.75 alleging that Powell had denied access to public records in violation of R.C. 149.43(B). On June 6, 2018, the court was notified that mediation had failed to resolve all disputed issues. On June 20, 2018, Powell filed a response and motion to dismiss (Response) in which it asserted that it had provided all existing documents responsive to those requests that are not improper as overly broad, requests for non-records, requests for information, or excepted from disclosure. On June 21, 2018, the court issued an order requiring Ebersole to file a reply listing those requests that had not been satisfied, and identify what specific, existing records Powell had failed to produce. Ebersole filed a reply on July 9, 2018. Powell filed a sur-reply, and copies of court-ordered records under seal, on July 31, 2018. The parties submitted additional information in response to an order of August 31, 2018.

Motion to Dismiss

{¶4} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193.

{¶5} Powell moves to dismiss for failure to state a claim on the ground that all existing public records responsive to those of Ebersole's requests that are not ambiguous or overly broad have been produced, rendering his claims moot. I find that the issue of mootness cannot be determined in this case based solely on the complaint and attachments thereto. I therefore recommend that the motion to dismiss for mootness be denied, and the issue determined on the merits.

{¶6} Powell also moves to dismiss Ebersole's claims because his records requests are overly broad, requests for non-existent documents, requests for non-records, requests for information, or are subject to a statutory exception. Under the abbreviated pleading procedure in this action (see R.C. 2743.75(D)(1) and (E)(2)) Powell's defenses have been filed as a combined response and motion to dismiss. As with the claim of mootness, most of these defenses are not conclusively shown on the face of the complaint and attachments. Moreover, as the matter is now fully briefed, I find that these arguments are subsumed in the arguments to deny the claims on the merits. I therefore recommend that that the motion to dismiss on these grounds be denied, and the matter determined on the merits.

Records Requests Presented for Determination

{¶7} The complaint and attachments contain scores of public records requests, responses, modifications, resolutions, supplemental requests, and reassertions. In his prayer for relief Ebersole first describes four unresolved requests (Complaint at 24-25, Prayer for Relief A1-4), but then seeks enforcement of additional, unspecified requests through a prayer for

B. An order commanding Respondents to provide the legally required response to all of Requester's public records requests (attached hereto as Exhibit 1) pursuant to R.C. 149.43(B), including but not limited to the public records requests at Exhibit 1, pages 1-2, 46-47, 55-59, 78-81, 113-114, 144-147, 169-172, and 181-182.

(Id. at 25.) Paragraph B seeks an order to enforce any public records request discernable anywhere within the 219 pages of Complaint Exhibit 1. Paragraph B thereby fails to set forth a short and plain statement of claims showing entitlement to relief. Civ.R. 8(A). Following mediation, the special master issued an order providing Ebersole the opportunity to properly specify and support his claims before the court:

In order to identify what issues remain in dispute in this case, the special master requires an additional pleading from requester, along with any supporting affidavit and documents. Pursuant to R.C. 2743(E)(3)(c), Ebersole is directed to file a reply that separately lists only those requests that Ebersole alleges have not been satisfied, and that he wishes to continue to litigate. For each such request, Ebersole is directed to quote the language of the request and cite the correspondence that contains the request. For each such request, Ebersole is directed to address the following:

1. Identify in as much detail as possible what specific, existing records the City has failed to produce that are responsive to this request.

(June 21, 2018 Order.) Ebersole filed a reply on July 9, 2018, with a table listing the requests that he alleges remain unsatisfied. (Reply, Exh. A.)

{¶8} To the extent Ebersole continues to reference or incorporate any other putative request that was not separately listed, quoted, and referenced as required by the order (e.g., Id. asterisked footnotes; Reply, passim) I find that Ebersole has failed to provide the short, plain statement of claim required by Civ.R. 8(A), and failed to comply with the special master's order. I therefore recommend that any claims Ebersole asserts beyond those listed in Reply Exh. A be dismissed without prejudice.

Burdens of Proof

{¶9} In a claim to enforce Ohio's Public Records Act (PRA), the ultimate burden is on the requester to prove an alleged violation. In mandamus:

Although 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."

(Citation omitted.) State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15. Claims pursuant to R.C. 2743.75 must likewise be established by clear and convincing evidence. Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30. Thus, Ebersole bears the burden of proving each claimed violation of R.C. 149.43(B) by clear and convincing evidence.

{¶10} If a public office asserts an exception to the Public Records Act as its basis for withholding requested records, the burden shifts to the office to establish the applicability of the claimed exception. 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; State ex rel. Nat'l Broad. Co. v. Cleveland, 38 Ohio St.3d 79, 82-83, 526 N.E.2d 786 (1988), paragraph 2 of the syllabus. Powell thus bears the burden of proving that each withheld record or portion of a record falls squarely within any claimed exception.

{¶11} However, the defense that a document is not a record does not assert an exception. An exception is a state or federal law prohibiting or excusing disclosure of items that otherwise meet the definition of "public record." Before the issue of exceptions arises, a requester must first show that he has made a request that invokes the Public Records Act. Thus, when a public office claims that an item is not a record of the office,

a requester must establish that they are (1) documents, devices, or items, (2) created or received by or coming under the jurisdiction of CMHA, (3) which serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office. See State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005 Ohio 4384, 833 N.E.2d 274, ¶ 19.

State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23.¹ The O'Shea Court cites to Dispatch v. Johnson, where the Court held:

Therefore, in order to establish that state-employee home addresses are records

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