Mitchell v. Ohio Ethics Commission, 110320 OHCOC, 2019-01182PQ

• Opinion Judge: JEFF CLARK, SPECIAL MASTER
• Party Name: GEOFFREY C. MITCHELL Requester v. OHIO ETHICS COMMISSION Respondent
• Case Date: November 03, 2020
• Court: Ohio Court of Claims

2020-Ohio-5590

GEOFFREY C. MITCHELL Requester

v.

OHIO ETHICS COMMISSION Respondent

No. 2019-01182PQ

Court of Claims of Ohio

November 3, 2020

Sent to S.C. Reporter 12/8/2020

REPORT AND RECOMMENDATION

JEFF CLARK, SPECIAL MASTER

{¶1} Ohio's Public Records Act, R.C. 149.43, 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.

{¶2} On October 9, 2019, requester Geoffrey Mitchell made a public records request to Paul Nick, the Executive Director for respondent the Ohio Ethics Commission (OEC or commission): Please produce copies of any records, documents and/or communications pertaining financial [sic] compensation or any other "thing of value" paid to or on behalf of any UT trustee from 2013 - present. This request includes but is not necessarily Iimited to annual financial disclosure statements by UT Trustees which I assert should be available for public inspection pursuant to R.C. § 102.02(B).

(Complaint at 6.) On October 11, 2019, Nick sent a response (Complaint at 9-10) enclosing redacted copies of financial disclosure statements filed by University of Toledo trustees for the calendar years 2013-2018. (Reply, Bates Nos. 000001-000305.)

{¶3} On December 23, 2019, Mitchell filed this action 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 OEC filed a combined motion to dismiss and response to complaint (Response) on February 13, 2020. Mitchell filed a reply on March 2, 2020, and filed supplemental documents on October 14, 2020.

Burdens of Proof

{¶4} Ohio's Public Records Act (PRA or Act) is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7. In an enforcement action under R.C. 2743.75, a requester must establish public records violations by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).

{¶5} If a public office asserts an exception to the PRA, 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 under the Act must be strictly construed against the public-records custodian, and the custodian bears the burden to establish applicability of an exception. 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 of public records. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).

Motion to Dismiss

{¶6} 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).

{¶7} The OEC moves to dismiss the complaint on the grounds that the request was overly broad, but that it has rendered all claims moot by providing Mitchell with copies of responsive financial disclosure forms. The OEC asserts that the redacted portions of the forms are exempt from disclosure pursuant to R.C. 102.02(B) and .07.

Ambiguous or Overly Broad Request

{¶8} 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). 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.

{¶9} The court need only consider the portion of a public records request that the requester claims has been denied in violation of R.C. 149.43(B). Although several broader requests are apparent in the attachments, Mitchell's complaint states: Requestor submits this complaint under R.C. 2743.75(D) alleging to this Court that the Ohio Ethics Commission ("OEC") has refused to produce certain annual financial disclosure statements of public university trustees as required by R.C. 149.43 and particularly 102.02(B).

This limited claim matches the specific request for "annual financial disclosure statements by UT Trustees" that is embedded in Mitchell's broader demand for "any records, documents and/or communications pertaining financial [sic] compensation or any other 'thing of value' paid to or on behalf of any UT trustee from 2013 - present." See State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 1, 17-24 (a request for six months-worth of email was found overly broad, but an embedded request, "including, but not limited to [a particular legislative bill]," was sufficiently narrow to be a proper request); Axelrod v. Ohio DOC, Div. of Sec, Ct. of Cl. 2018-01458PQ, 2019-Ohio-1821, ¶ 9-10. I find that the embedded request here is not ambiguous or overly broad, and reasonably identifies the records sought.

{¶10} Neither the complaint nor the reply seek production beyond the specified financial disclosure statements, and the OEC's production of...