Patrick v. City of North Olmsted
| Decision Date | 22 June 2021 |
| Docket Number | 2020-00691PQ |
| Parties | KELLY PATRICK Requester v. CITY OF NORTH OLMSTED Respondent |
| Court | Court of Claims of Ohio |
REPORT AND RECOMMENDATION
{¶1} The Public Records Act (PRA or Act) requires a public office to make copies of requested public records available at cost and within a reasonable period of time. R.C. 149.43(B)(1). The Act is construed liberally in favor of broad access, with any doubt resolved in favor of disclosure. 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. R.C. 2743.75 provides an expeditious and economical procedure to resolve public records disputes in the Court of Claims. The person requesting records has the burden to prove a right to relief under R.C. 2743.75. Welsh-Huggins v Jefferson Cty. Prosecutor's Office, Slip Opinion No 2020-Ohio-5371, ¶ 33-34.
{¶2} On September 21, 2020, requester Kelly Patrick "requested all records concerning this incident [the police response to an incident involving her]" from the Law Department of respondent City of North Olmsted ("the City"). (Complaint at 2; Response, Kilbane Aff. at ¶ 2.) The Law Department promptly forwarded Patrick's request to the North Olmsted Police Department. (Complaint at 22, Kilbane Aff. at ¶ 2.) On September 23 2020, the City provided Patrick with redacted copies of an incident report, two witness statements, and medical records. (Id. at 2, 23, Exh. C p. 2, Exh. E, Exh. B.; Response at ¶ 3, Kilbane Aff. at ¶ 3.) On October 16, 2020, the City sent Patrick 33 photographs from the investigative file. (Complaint at 2, Exh. D; Kilbane Aff. at ¶ 5.) On October 28, 2020, the City told Patrick that all responsive records had been released. (Complaint; Kilbane Aff. at ¶ 5.)
{¶3} On December 7, 2020, Patrick filed a complaint pursuant to R.C. 2743.75 alleging denial of access to putative public records in violation of R.C. 149.43(B).[1] On December 15 2020, the case was referred to mediation, during which the City produced additional records. (Motion to Dismiss at 2; Response, Fioritto Aff. at ¶ 3, Exh. 1-2.)[2] On February 11, 2021, the City filed an answer (Response) and a motion to dismiss. On April 9, 2021, Patrick filed a reply. On April 12, 2021, the City filed a supplemental response and filed the contents of the criminal investigative file under seal.
{¶4} To dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt 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 not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10. The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).
{¶5} The City first argues the complaint fails to state a claim because "it fails to allege that Respondent violated the public records law." (Motion to Dismiss at 2.) However, a requester's initial burden of production is merely "to plead and prove facts showing that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or records custodian did not make the record available." Welsh-Huggins at ¶ 33. Patrick's request for relief expressly narrows her initial request for "all records concerning this incident" to a list of nine items she believes existed but that have not been provided:
(Complaint at 3.) The City asserts that these requests all fail to state a claim because they seek information, explanations, and answers to questions rather than reasonably identifying existing public records. (Motion to Dismiss at 2-3.)
{¶6} 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 does not reasonably identify what public records are being requested may be denied. R.C. 149.43(B)(2).[3] In response to a question or request for information that does not identify the records sought, a public office has "no duty under R.C. 149.43 to create new records by searching for and compiling information from existing records." State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 154, 707 N.E.2d 496 (1999); State ex rel. Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997) (). This includes requests for records supporting or explaining an agency decision. State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98820, 2012-Ohio-6012, ¶ 14 (); Kovach v. Geauga Cty. Auditor's Office, Ct. of Cl. No. 2019-00917PQ, 2019-Ohio-5455, ¶ 9-10 (). 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.
{¶7} Request No. (1) states:
(1) The report was prepared by PTL. M Gasdick. A patrolman personally called Prosecutor Gordillo while at the scene?
This question does not identify any office document by a relevant combination of title, date, author, recipient, location, retention category, subject matter, document type, or other locator/identifier. It requests only information, i.e., whether a telephone call was made. While the question may be a hyperbolic suggestion that only a more senior officer would have called the prosecutor, a public office is not required to unravel rhetorical language to infer an otherwise unstated request for an unspecified record.
{¶8} Request No. (9) seeks:
(9) Any records of communications between Mr. Kasaris and any city officials, or any explanation about why a domestic assault and drug seizure did not result in the filing pf [sic] any criminal charges.
The request for communications is not limited to any time period, recording medium, or topic, and is therefore overly broad. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 17, 19. Compare State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 23-27 (). See State ex rel. Bristow v. Baxter, 6th Dist. Erie Nos. E-17-060, E-17-067, E-17-070, 2018-Ohio-1973, ¶ 11-16; Patton v. Univ. of Akron, Ct. of Cl. No. 2017-00820PQ, 2018-Ohio-1555, ¶ 2, 9-10. This part of the request also identifies the public office correspondents only as "any city officials," necessitating an ambiguous and overly broad office-wide search through all employees' communications in any format. Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018- Ohio-3475, ¶ 28. The second clause of this request, asking for an "explanation" of a prosecutorial decision, does not reasonably identify any record and is properly denied. Morabito, supra; Kovach, supra.
Requests Nos. (2) and (3) state:
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