Ohio Records Analysis v. Ohio Dep't of Admin. Servs., 2021-00385PQ

CourtCourt of Claims of Ohio
Writing for the CourtJEFF CLARK, SPECIAL MASTER
Citation2022 Ohio 316
PartiesOHIO RECORDS ANALYSIS Requester v. OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES Respondent
Decision Date12 January 2022
Docket Number2021-00385PQ

2022-Ohio-316

OHIO RECORDS ANALYSIS Requester
v.

OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES Respondent

No. 2021-00385PQ

Court of Claims of Ohio

January 12, 2022


REPORT AND RECOMMENDATION

JEFF CLARK, SPECIAL MASTER

{¶1} This action is brought under R.C. 2743.75, which provides an expeditious and economical procedure to enforce the Ohio Public Records Act, R.C. 149.43. The Act requires that copies of public records be made available to any person upon request, within a reasonable period of time. R.C. 149.43(B)(1). The state policy underlying the Act is that open government serves the public interest and our democratic system. To that end, the public records statute must be construed liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Rogers v. Dept. of Rehab. & Corr ., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6. A requester alleging violation of the Act must establish entitlement to relief by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).

{¶2} On June 23, 2021, requester Ohio Records Analysis (ORA) made a request to respondent Ohio Department of Administrative Services (ODAS) for the following:

In relation to the Ohio MARCS-IP: Multi-Agency Radio Communications
1. Talkgroup numbers assigned, used by, or distributed to the City of Columbus and any City of Columbus department
2. Channel Names associated with aforementioned Talkgroups
3. Radio numbers or ID's assigned, used by, or distributed to the City of Columbus and any City of Columbus department

(Complaint at 2.) On June 29, 2021, ODAS responded that

1
the information you have requested is considered a security record, as it relates the configuration of the radios on the statewide communication system. As such, any responsive record would be exempt from disclosure pursuant to R.C. 149.433.

(Id. at 3.) On July 9, 2021, ORA 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, ODAS filed respondent's response to the complaint on October 21, 2021. On November 8, 2021, the special master directed ORA to file a reply by November 24, 2021, and later extended authorization to file until December 27, 2021. The court has received no filing from ORA.

Burdens of Proof

{¶3} The overall burden of persuasion in a public records case is on requester to prove its right to relief by the requisite quantum of evidence. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d, 34. First, requester must prove it sought an identifiable public record, and the public office did not make the record available. Id. at ¶ 33. Then, if the public office has withheld a record on the basis of a public records exemption, the public office carries the burden to prove that the requested record falls squarely within the exemption. Id. at ¶ 35. 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. 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).

{¶4} The parties do not dispute that ORA reasonably describes the information it seeks. However, However, ODAS states 1) that it is not capable of producing the subsets of requested information that pertain to the City of Columbus without creating new records, and 2) that if it created such records, they would be exempt from public records disclosure as infrastructure and security records pursuant to R.C. 149.433.

2

Non-Existent Records[1]

{¶5} "Public records" means records kept by a public office. R.C. 149.43(A)(1). A person may only make the request to a "public office or person responsible for" the requested records. R.C. 149.43(B)(1).

Only the public office and official responsible for the requested records has a duty to provide copies of public records under R.C. 149.43. Cvijetinovic v. Cuyahoga Cty. Aud., 8th Dist. No. 96055, 2011-Ohio-1754, ¶ 4 ("[B]ecause the Cuyahoga County Auditor is not the official responsible for the requested records, the auditor has no duty to provide copies of those records under R.C. 149.43.").

Viola v. Ohio Attorney General's Office, 10th Dist. Franklin No. 21AP-126, 2021-Ohio-3828, ¶ 18. A public office has no duty to provide records that do not exist, or that it does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 5, 8-9. An office may establish by affidavit that any existing records have been provided. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583 N.E.2d 1313 (1992); 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, ¶ 15. Although the office's affidavit may be rebutted by evidence showing a genuine issue of fact, a requester's mere belief based on inference and speculation does not constitute the evidence necessary to establish that a document exists as a record. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 22-26. Nor does the public office have a duty to create new records to satisfy a request for information. State ex rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 274-275, 695 N.E.2d 256 (1998).

Proof of Existence

3

{¶6} When a public office asserts that it has no additional records in its possession, the burden is on requester to prove by clear and convincing evidence that the records it requests exist and are maintained by that office....

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