Langshaw v. City of North Royalton
| Decision Date | 15 June 2021 |
| Docket Number | 2021-00070PQ |
| Parties | DANIEL R. LANGSHAW Requester v. CITY OF NORTH ROYALTON Respondent |
| Court | Ohio Court of Claims |
REPORT AND RECOMMENDATION
{¶1} Ohio's Public Records Act provides that upon request a public office "shall make copies of the requested public record available to the requester at cost and within a reasonable period of time." R.C. 149.43(B)(1). Ohio courts construe the Public Records Act liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. 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. This action is brought under R.C. 2743.75, which provides an expeditious and economical procedure in the Court of Claims to resolve public records disputes.
(Complaint at 2, Exh. D.) On August 5, 2020, Langshaw received a response from the city with documents attached including two explanatory responses from City officials. (Complaint at 2, Exhs. E, F, G.)
{¶3} On February 8, 2021, Langshaw 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 City filed a combined response to complaint, motion to strike and motion to dismiss (Response) on April 15, 2021. Langshaw filed a combined brief in opposition to respondent's motion to strike and motion to dismiss (Reply), and a separate motion to compel, on May 7, 2021. On May 21, 2021, the City filed a brief in opposition to the motion to compel.
Motion to Strike
Civ.R. 12(F) provides:
Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty-eight days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading an insufficient claim or defense or any redundant, immaterial, impertinent or scandalous matter.
The City asserts that paragraph 1 of the complaint contains statements that are immaterial to Langshaw's public records claim, and that exhibits referenced in that paragraph are likewise immaterial. (Response/Motion to Strike at 4-5.) Langshaw contends that the paragraph and exhibits "[go] to the motive for the Respondent to not comply with the Public Records act or even destroy public records." (Reply at 4.)
{¶4} The complaint asserts denial of access to public records. The City's sole defense is that all existing requested records have been disclosed. Langshaw cites no legal authority for the proposition that the referenced text and documents are material to proving his claim or countering the City's proof of the defense. On review, the special master finds that Exhibits A-C and the greater part of paragraph 1 are immaterial to this action. The clerk is directed to strike all of the first paragraph of the complaint following the date "July 4, 2020" and strike Requester's Exhibits A-C in their entirety. On the court's own initiative and on the same basis, the special master further directs the clerk to strike the first four full sentences on page 4 of Langshaw's reply.
{¶5} Langshaw claims the City failed to file the motion to strike within the time set forth in Civ.R. 12(F). However, "to the extent that they would by their nature be clearly inapplicable," the Rules of Civil Procedure do not apply to procedure in special statutory proceedings. Civ.R. 1(C)(6). R.C. 2743.75 is a special statutory proceeding providing at division (E)(2) that other than the complaint and response, "[n]o further motions or pleadings shall be accepted by the clerk of the court of claims or by the special master * * * unless the special master directs in writing that a further motion or pleading be filed." Further, the special master's February 17, 2021 notice of referral to mediation stayed all filing deadlines in this case until further order of the court. The special master finds that the time limits of Civ.R. 12(F) either do not apply or have been complied with by excluding the time during which pleading was stayed. The City filed the motion to strike 13 days after mediation was terminated which, added to the 6 days between service of the complaint and referral, totals 19 days.
{¶6} Langshaw filed a motion to compel the City to produce all withheld records and allow inspection of City officials' mobile devices "pursuant to Rules 26, 37, and 45 of the Ohio Rules of Civil Procedure and R.C. 2743.75, R.C. 149.43, and R.C. 149.43(B)." Langshaw states that he is seeking "further discovery * * * of the suspicious contradictory statements made by" the officials. (Motion to Compel at 3.) Again, to the extent that they would by their nature be clearly inapplicable the Rules of Civil Procedure do not apply to procedure in this special statutory proceeding. Civ.R. 1(C)(6). R.C. 2743.75(E)(3)(a) provides that "The special master shall not permit any discovery." Langshaw's request for discovery under the Civil Rules is therefore prohibited.
{¶7} Langshaw's separate citation to R.C. 2743.75 and R.C. 149.43 is duplicative of the complaint to the extent it seeks production of records. However, the motion further seeks an order to "produce and permit inspection of mobile devices and copying of any designated documents named in Requester's complaint or electronically stored information that are in the possession, custody, or control of two named officials. (Motion to Compel at 1, 4-5.) First, Langshaw sought only copies, not inspection, in his request of July 2, 2020 and may not enforce a claim in this action that is not based on a previously denied request. State ex rel. Bardwell v. Ohio Atty Gen., 181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th Dist.). Second, if the motion is for Langshaw to inspect storage devices as a matter of discovery, he cites no statutory or case law permitting a public records requester to conduct such an inspection or any other discovery. Finally, the special master is not persuaded that it is necessary to order the devices submitted for in camera inspection by the court.
{¶8} A public office has a duty to retrieve its public records from wherever they are kept, including electronic records stored only in an employee's personal device. See Sinclair Media III v. Cincinnati, Ct. of Cl. No. 2018-1357PQ, 2019-Ohio-2624, ¶ 5-12 and cases cited therein. Moreover, if a requester provides prima facie evidence that an office has improperly deleted emails that are public records, the office may be ordered to recover those records by reasonable means. 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, ¶ 26-41. However, the response to a public records request for an official's correspondence may often rely appropriately, even necessarily, on identification and retrieval of responsive records by the official himself. Viola v. Ohio Attorney General's Office - Pub. Records Unit, Ct. of Cl. No. 2020-00507PQ, 2021-Ohio-749, ¶ 14. Here, copies of the only texts shown to be deleted were provided from the storage device of the other corresponding official.
{¶9} In the absence of evidence to the contrary, the City may be presumed to have performed its duties including public records identification and retrieval regularly and in a lawful manner. State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 29. While an office has no duty under R.C. 149.43 to detail for a requester the steps actually taken to identify and retrieve requested records, State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 26, the City here produced explanations of how they retrieved responsive text messages, and resolution of a problem they encountered. Langshaw has not offered persuasive evidence that this process was irregular or unlawful, and his suspicions are insufficient to prove the existence of additional public records on the City officials' personal devices. On the facts and evidence before the court, the special master finds that Langshaw has not shown that the manner in which the City processed his requests violated R.C. 149.43(B). To the extent the motion seeks direct inspection of City officials' mobile devices, the request is not supported by the facts or existing law and is denied.
{¶10} 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...
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