Requester v. Chillicothe City Sch.

• Decision Date: 26 December 2018
• Docket Number: Case No. 2018-00950PQ
• Citation: 2018 Ohio 5445
• Parties: CHILLICOTHE GAZETTE Requester v. CHILLICOTHE CITY SCHOOLS Respondent
• Court: Ohio Court of Claims

2018 Ohio 5445

CHILLICOTHE GAZETTE Requester v. CHILLICOTHE CITY SCHOOLS Respondent

Case No. 2018-00950PQ

Court of Claims of Ohio

To S.C. Reporter January 11, 2019

December 26, 2018

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 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. "[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, "[w]e construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records." State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.

{¶2} On the morning of April 30, 2018, reporter Jona Ison of the Chillicothe Gazette made a public records requests to respondent Chillicothe City Schools (CS):

I have heard rumor Jon Saxton has/is resigning today. Has he submitted a resignation letter? If so, please provide me a copy.

Also, if the Title IX report by the attorneys has been completed and provided to the district, please provide me a copy. [Request No. 1]

(Am. Compl., Exh. E, p. 2-3.) Chillicothe CS promptly responded that

There are no documents which would satisfy your first request. The document which is the subject of your second request is protected by attorney-client privilege.

(Id.) On the afternoon of April 30, 2018, Ison added the following requests:

The Gazette would like to receive copies of the following:

- Contract or other documentation outlining the cost and scope of work to be done by Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh. [Request No. 2]

- Meeting minutes showing board approval to hire Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh. [Request No. 3]

- All bills from Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh for 2017 and 2018. [Request No. 4]

(Id., Exh. A, p. 2-3, with attachment Exh. B.) Chillicothe CS responded on May 4, 2018 that:

Sandra was appointed as counsel through the District's liability insurer, and was not engaged by the Board. Therefore, I can not produce meeting minutes or bills from her for 2017 and 2018 because we do not have any.

(Id., Exh. A, p. 2.) On May 7, 2018, Ison sent an email containing a final request:

Please send me a copy of the insurance policy you referred to below as well as all correspondence with the insurance carrier related to Freund, Freeze & Arnold and/or attorney Sandra R. McIntosh being retained and throughout the retainer. [Request No. 5]

(Id., Exh. A, p. 1.) On May 21, 2018, Chillicothe CS produced a copy of the requested insurance policy. (Id.; Reply, Exh. C.) On May 23, 2018, Chillicothe CS further responded:

I never got to speak with you about the questions you had about the date, scope of work, and who initiated it, etc.

Here is what I can tell you. The date of the correspondence was 10/13/2017, she is no longer actively engaged, and she was appointed insurance council [sic].

This may not help you much but this is all the information I can provide you with.

(Am. Compl., Exh. C.) On May 29, 2018, counsel for the Gazette reiterated Ison's request for the "Title IX investigation report" and added a request for "an engagement letter in which the School District laid out the terms of the engagement. We believe this is dated 10/13/17." [Request No. 6]. (Id., Exh. D, p. 1.) On May 30, 2018, counsel for Chillicothe CS responded that

Ms. Ison requested records related to Sandy McIntosh and her firm, Freund, Freeze and Arnold. Ms. McIntosh was appointed as counsel by the District's liability insurance carrier. Ms. Lawwell properly indicated that any responsive documents are privileged. Ms. McIntosh has not prepared any "independent Title IX investigation report." That is/was not her role.

(Id., Exh. E, p. 1.)

{¶3} On June 13, 2018, the Gazette filed a complaint under R.C. 2743.75 alleging denial of access to public records by Chillicothe CS in violation of R.C. 149.43(B). On July 10, 2018, the Gazette filed an amended complaint. Following unsuccessful mediation, Chillicothe CS filed a motion to dismiss (Response) on September 14, 2018. On September 25, 2018, Chillicothe CS provided an additional record to the Gazette. (Reply at 1, Reply Exh. A.) Chillicothe CS has filed a number of withheld items under seal, and on November 9, 2018 filed a supplemental response.

Motion to Dismiss

{¶4} 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} Chillicothe CS moves to dismiss the complaint on the grounds that 1) requester has not identified the records sought with sufficient clarity, 2) any legal services bills paid by the insurance carrier are not "records" of respondent, 3) meeting minutes as described in the request do not exist, 4) the requested "independent Title IX investigation report" does not exist, and 5) responsive communications between Attorney McIntosh and the Board are protected from disclosure by attorney-client privilege. Although Chillicothe CS did not deny any of the requests on the grounds of ambiguity or overbreadth prior to the filing of this action, it now asserts that "[t]he inconsistency of the official public records request, original Complaint, and Amended Complaint demonstrate the Requester has failed to request the records sought "with reasonable clarity." However, it is the public records request that must "reasonably identify what public records are being requested," not the complaint. See R.C. 149.43(B)(2). While not a model of clarity, the complaint sufficiently pleads denial of the requests attached to the complaint through the content of the correspondence, the name of the school official responsible for the denial, and the date of final denial.

{¶6} While part of Request No. 2, and all of Request No. 3, are ambiguous and overly broad, Request No. 2 also includes a proper request, and Request No. 3 is properly denied on multiple grounds. Therefore, these requests will be addressed below on the merits. The other defenses presented by the City; non-existence, non-records, common-law attorney-client privilege, and mootness, cannot be determined based solely on the complaint and attachments thereto. I therefore recommend that the motion to dismiss be DENIED, and the matters determined on the merits.

Burdens of Proof

{¶7} In an action to enforce Ohio's Public Records Act (PRA), the burden is on the requester to prove an alleged violation. In mandamus enforcement actions,

[a]lthough the PRA is accorded liberal construction in favor of access to public records, "the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence."

State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153 ¶ 27-30 (5th Dist.).

{¶8} If a public office asserts an exception to the Public Records Act, the burden of proving the exception rests on the public office. "Exceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception." State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. 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).

{¶9} However, the defense that an item is not a record does not assert an exception, and the burden of proof remains with the requester. When this assertion is made,

a requester must establish that they are (1) documents, devices, or items, (2) created or received by or coming under the jurisdiction of CMHA, (3) which serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

(Emphasis added.) State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23. See State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 19 (If requester fails to prove any of these three requirements, the items are not subject to disclosure under the Public Records Act).

{¶10} The burden is thus on the requester to show that disputed items meet the definition of a "record." But see Hurt v. Liberty Twp. at ¶ 75-78. Similarly, where an office attests that requested records do not exist, the requester has the burden to establish that the records exist by clear and convincing evidence. 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.

Request No. 1 for "the Title IX report by the attorneys"

{¶11} Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq.,...