Parrish v. Vill. of Glendale

• Decision Date: 22 October 2021
• Docket Number: 2021-00280PQ
• Citation: 2021 Ohio 4437
• Court: Ohio Court of Claims
• Parties: KEVIN L. PARRISH, Requester v. VILLAGE OF GLENDALE, Respondent

2021-Ohio-4437

KEVIN L. PARRISH, Requester v. VILLAGE OF GLENDALE, Respondent

No. 2021-00280PQ

Court of Claims of Ohio

October 22, 2021

Sent to S.C. Reporter 12/16/21

REPORT AND RECOMMENDATION

JEFF CLARK SPECIAL MASTER

{¶1} The Ohio Public Records Act (PRA) requires copies of public records to be made available to any person upon request. The state policy underlying the PRA is that open government serves the public interest and our democratic system. State ex rel. Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261 264, 685 N.E.2d 1223 (1997). 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. &amp Corr ., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6. This action is filed under R.C. 2743.75 which provides an expeditious and economical procedure to enforce the PRA in the Court of Claims.

{¶2} On September 28, October 2, and October 14, 2020, requester Kevin Parrish made public records requests to the Village of Glendale for certain records of contractors and subcontractors related to work performed on Cole Avenue during the week of December 7-13, 2017. (Complaint at 5, 8, and 11.) The Village timely produced response letters to each request (Id. at 4, 7, and 10), attaching responsive records to the first and second letters. (Response, Exh. B p. 25-39.)

{¶3} On May 21, 2021, Parrish filed a complaint under R.C. 2743.75 alleging denial of access to public records. The Village filed a motion to dismiss on August 12, 2021. On August 18 the court issued an order directing Parrish to file a reply pleading, and for the Village to file additional information and documents. Parrish filed a reply on August 31, 2021 and the Village filed an answer (Response) on September 2, 2021, along with a withdrawal of its earlier motion to dismiss. On September 29, 2021, the Village filed a sur-reply.

Burden of Proof

{¶4} A requester must establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). At the outset, the requester bears the burden of production to plead and prove facts showing he sought identifiable public records from a public office pursuant to R.C. 149.43(B)(1) and that the request was denied. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33. Parrish must first show that the items sought meet the statutory definition of "records" and that the records were kept by the Village.

Suggestion of Mootness

{¶5} In an action to enforce R.C. 149.43(B), a public office may produce the requested records prior to the court's decision, and thereby render the claim for production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22. Now-Village Administrator David Lumsden attests that he served as Administrative Assistant for Glendale prior to April 1, 2021, when he processed the responses to Parrish's public records requests. (Response, Lumsden Aff. 2 at ¶ 3.) Lumsden gathered what he believed were all village records responsive to the requests and made them available to Parrish. (Lumsden Aff. 2 at ¶ 9-27.) During litigation, Lumsden identified additional records that had been overlooked in his previous response and sent these to Parrish. (Response at 5-6, Lumsden Aff. 2 at ¶ 30-34.) Lumsden attests that "there are no other Village records responsive to Mr. Parrish's September 28, October 2, and October 14 Requests." (Lumsden Aff. 2 at ¶ 35.)

Requester's Opposition to Mootness

{¶6} On August 18, 2021, the court issued an order directing Parrish to file a reply addressing whether respondent had provided all records responsive to each of his three requests and, if not, to identify what specific records the Village had failed to produce. In his reply, Parrish first requested that documents from a separate case, attached to the reply, be made part of this case (Reply at 1, 6-39) and responded to the suggestion of mootness as follows:

1. Parrish states that the report provided to him in response to the request of September 28, 2020 lacks certain content that he expected, contains representations that are "impossible," and has "nothing to do with the events that took place the week of Dec 7-13 2017." (Reply at 2.) However, Parrish does not describe any other specific existing records the Village has failed to produce in response to the September 28, 2020 request.

2. Parrish states that the report he received in response to his request of October 2, 2020 was "not related to the request for records for the week of Dec 7-13, 2017." (Reply at 3.) He argues that the Village produced no reports "from Tele-Vac" or for the Donley Company, which "was doing the work on Cole avenue and would be responsible for the report of conditions found and completion of project on Cole Ave -> see photos -> # 3-17." (Id.) However, Parrish does not describe any other specific existing records the Village has failed to produce in response to the October 2, 2020 request.

3. Finally, Parrish states that he has not been provided with all responsive records to the request of October 14, 2020. Parrish states that he contacted the Tele-Vac Company and was told by "the Operations Manager (James)" that

They have a contract with the Village of Glendale also; as part of operations; when they are at a site; and have a line in the sewer, then they are recording + documenting that day's events in real time. All reports were turned over to the Village of Glendale. The Village of Glendale has failed to produce the report of Tele-Vac for Mon December 11, 2017, 10:48 AM -> photos -> # 14 + # 16

(Reply at 4.) Other than this statement, which the special master finds to be inadmissible hearsay, Parrish does not describe any other specific existing records the Village has failed to produce in response to the October 14, 2020 request.

Respondent's Evidence in Support of Mootness

{¶7} The Village submitted the following in support of its suggestion of mootness:

1. The Village attests that it provided Parrish with the only "final report" regarding the Cole Avenue sewer project, and that no other documents exist responsive to the September 28, 2020 request. (Sur-reply at 1-2, Lumsden Aff. 2 at ¶ 8-14.)

2. The Village attests that it provided Parrish with all Village records responsive to the request of October 2, 2020, and that there were no other responsive records regarding work done specifically by the Donley Company. (Sur-reply at 2 Lumsden Aff. 2 at ¶ 15-20.)

3. The Village attests that Parrish was invited to stop in during Village office hours and view records. (Sur-reply at 2, Lumsden Aff. 2 at ¶ 12-13, 19, 25, 27.) The Village provided Parrish with records responsive to the October 14, 2020 request in November, 2020 and supplemented that response with additional, inadvertently omitted photographs in September, 2021. (Sur-reply at 2-3, Lumsden Aff. 2 at ¶ 22-27, 29-35).

Non-Existent Records

A "record" is defined for purposes of the Public Records Act as

any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

R.C. 149.011(G). A document must be one "created or received by or coming under the jurisdiction of any public office" to meet this definition and thus must exist before it can be the subject of a "records" request. A public office has no duty to provide records that do not already exist or that it does not possess. State ex rel. Alford v. Toledo Corr. Inst, 157 Ohio St.3d 525, 2019-Ohio-3847, 138 N.E.3d 1133, ¶ 5; State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7-10; State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 5, 8-9; State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530, ¶ 15.

{¶8} The Village asserts that the records described in Parrish's requests, other than as already provided, do not exist. The Village's affidavit is some evidence supporting the non-existence of additional records. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583 N.E.2d 1313 (1992). See also State ex rel. Toledo Blade Co. v. Toledo-Lucas County Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14-15. Once the Village denied that any additional responsive records...