Mohr v. Colerain Township, 112818 OHCOC, 2018-01032PQ

Docket Nº:2018-01032PQ
Opinion Judge:JEFFERY W. CLARK SPECIAL MASTER
Party Name:KATHY J. MOHR Requester v. COLERAIN TOWNSHIP Respondent
Case Date:November 28, 2018
Court:Court of Claims of Ohio
 
FREE EXCERPT

2018-Ohio-5015

KATHY J. MOHR Requester

v.

COLERAIN TOWNSHIP Respondent

No. 2018-01032PQ

Court of Claims of Ohio

November 28, 2018

Sent to S.C. Reporter 12/14/18

REPORT AND RECOMMENDATION

JEFFERY W. CLARK SPECIAL MASTER

{¶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} On March 12, 2018, requester Kathy Mohr made a request to respondent Colerain Township for "the waiver document for health insurance, and would like to know all employees who are participating in this, and the amount for each official/employee." (Complaint at 4.) The Township responded with a copy of the waiver form and corresponding policy, but withheld the names of participating employees as non-records. (Id. at 5.) On April 21, 2018, Mohr made a request to the Township for "a record of internet/Wi-Fi use by non-contract employees for October-December, 2017; and Jan-March, 2018." (Id. at 2.). On April 23, 2018, the Township responded, "We have no records to fill this request." (Id. at 3.)

{¶3} On July 2, 2018, Mohr filed a complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). Following unsuccessful mediation, the Township filed a motion to dismiss (Response) on September 4, 2018. The Township filed a supplemental response on September 27, 2018 pursuant to court order. On October 15, 2018, Mohr filed a reply. On November 15, 2018, the Township filed a limited waiver of privilege.

Motion to Dismiss

{¶4} The Township moves to dismiss the complaint on the grounds that, 1) it is under no legal obligation to provide non-record information, 2) it is prohibited from disclosing personal history information of state retirement fund contributors, 1 and 3) it is under no duty to create records where none exist. 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).

{¶5} Although both were arguably framed as requests for information rather than for reasonably identified records, the Township did not deny these requests as improper prior to the filing of the complaint. The second request seeks a "record" containing specific information, and the Township's defense of non-existence is not conclusively proven on the face of the complaint and attachments. I recommend that the court overrule the motion to dismiss, and determine both claims on the merits.

Ambiguous and Overly Broad Requests

{¶6} Mohr's first request is for "the waiver document for health insurance, and would like to know all employees who are participating in this, and the amount for each official/employee." (Complaint at 4.) In making a request, "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 Cmty. College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21-22. A public office is not required to create new documents in response to a public records request. State ex rel. Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 30; Salemi v. Cleveland Metroparks, 8th Dist. Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 28-30. Mohr's statement that she "would like to know all employees who are participating in this, and the amount for each official/employee" is framed as a question to be answered, rather than a request for any particular, reasonably...

To continue reading

FREE SIGN UP