Requester v. Argyle

Decision Date26 January 2018
Docket NumberCase No. 2017-00891-PQ
PartiesERIC P. SANDINE Requester v. JAMIE ARGYLE Respondent
CourtOhio Court of Claims
Special Master Jeffery W. Clark
REPORT AND RECOMMENDATION

{¶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 denied a person access to public records in violation of R.C. 149.43(B). R.C. 149.43(C)(1)(a). R.C. 149.43(B)(1) requires a public office to make copies of public records available to any person upon request, within a reasonable period of time. The policy underlying the Public Records 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. "[O]ne of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed." State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997). Therefore, the Public Records Act "is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records." State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).

{¶2} Requester Eric Sandine made a public records request to respondent Jamie Argyle, Fiscal Officer, Village of Lithopolis for "any records showing that any employee having [sic] a judgement or garnishment or notice including, but not limited to, child support arrearage from any State or County or individual in the last two years." (Complaint at 5-6.). On October 13, 2017, Argyle advised that the request was denied based on R.C. 3125.50. (Id. at 3-4.) On November 1, 2017, Sandine filed a complaint alleging denial of access to public records in violation of R.C. 149.43(B). The case proceeded to mediation. On December 11, 2017, the court was notified that the case was not fully resolved. On December 26, 2017, Argyle filed her motion to dismiss (Response).

{¶3} R.C. 2743.75(F)(1) states that determination of public records claims shall be based on "the ordinary application of statutory law and case law." Case law regarding the alternative public records remedy under R.C. 149.43(C)(1)(b) provides that a relator must establish by "clear and convincing evidence" that they are entitled to relief. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 14. Therefore, the merits of this claim shall be determined under the standard of clear and convincing evidence, i.e., "that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Accord Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

Motion to Dismiss

{¶4} Argyle moves to dismiss the complaint for failure to state a claim upon which relief can be granted. Civ.R. 12(B)(6). In construing this motion, 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). The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193. The claim of a violation of R.C. 149.43(B) may be dismissed when the requester has no legal right to the records sought under R.C. 149.43. State ex rel. GMS Mgmt. Co. v. Vivo, 7th Dist. Mahoning No. 10MA1, 2010-Ohio-4184, ¶ 24-28 (Sup.R. 44-47, not R.C. 149.43, control access to court records).

{¶5} Argyle asserts that the claim should be dismissed because, 1) Sandine's request is overly broad and ambiguous, 2) the requested records are excepted from the definition of "public record" by R.C. 5101.13 and R.C. 5101.131, and 3) the records contain "personal information" excepted from disclosure by R.C. 149.45.1 I find that none of these defenses are conclusively established on the face of the complaint. Further, Argyle's email responses to the request did not refer to the request as overly broad, or cite R.C. 5101.13, R.C. 5101.131, or R.C. 149.45. (Complaint at 3-5.) I therefore recommend that the motion to dismiss be denied, and that the court determine the case on the merits.

Ambiguous or Overly Broad Request

{¶6} R.C. 149.43(B)(2) addresses ambiguous and overly broad requests:

a. If a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties.

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. For example, a request for an entire category of records is improper:

b. A general request, which asks for everything, is not only vague and meaningless, but essentially asks for nothing. At the very least, such a request is unenforceable because of its overbreadth. At the very best, such a request is not sufficiently understandable so that its merit can be properly considered.

State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 756, 577 N.E.2d 444 (10th Dist.1989) (all traffic accident reports); accord, Zidonis (all complaint files, all litigation files); State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 3 (all orders for clothing and shoes). However, a sufficiently specific request contained within an otherwise overly broad request may be enforceable. In State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, the Court found overly broad a request for all of a state representative's email for a period of six months, but language that the request was "including, but not limited to" a particular house bill was separately sufficient as a request narrowly relating to the named bill. Id. at ¶ 1, 17-24.

{¶7} A records request is also unenforceable if it is too vague or indefinite to be properly acted on by the records holder. State ex rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075, 2010-Ohio-3052, ¶ 18, aff'd, 127 Ohio St.3d 312, 2010-Ohio-5711. Indeed, without sufficient specificity for the court to order clear terms of compliance with the request, the court cannot enforce any alleged non-compliance. Such a request may be denied as improperly ambiguous.

{¶8} Separately, a public office is not obliged to "seek out and retrieve those records which would contain the information of interest to the requester." State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, *3 (April 28, 1993). A request asks for "improper research" if it

c. require[s] the government agency to either search through voluminous documents for those that contain certain information or to create a new document by searching for and compiling information from existing records. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 30-31, 35, 857 N.E.2d 1208; State ex rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 274, 1998 Ohio 242, 695 N.E.2d 256 (1998).

State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 22. The Eighth District Court of Appeals upheld denial of a request similar to Sandine's, for "records containing certain information - personal injury claims," after summarizing "the well-established authority prohibiting the use of a purported request for public records to require a public office or person responsible for public records 'to search for records containing selected information.'" State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio App.3d 218, 2010-Ohio-3416, ¶ 7-11 (8th Dist.), rev'd in part on other grounds, 131 Ohio St.3d 149, 2012-Ohio-115, see State ex rel. McElroy v. Polito, 8th Dist. Cuyahoga No. 77042, 1999 Ohio App. LEXIS 5683 (Nov. 30, 1999) (no duty to gather all marriage license applications from a specified year, where no collection or index of such records existed); State ex rel. Evans v. Parma, 8th Dist. Cuyahoga No. 81236, 2003-Ohio-1159, ¶ 14-17 (no duty to search for all reports involving a geographic area).

{¶9} Sandine's request is for "any records showing that any employee having [sic] a judgement or garnishment or notice including, but not limited to, child support arrearage from any State or County or individual in the last two years." "Any records" requires an unbounded search through all office communications, employment, fiscal, and other categories of records. In State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001), the Court found that Dillery's demand for "any and all records generated" by the office with her name failed to satisfy her duty to identify the records sh...

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