Requester v. City of Cleveland, 021219 OHCOC, 2018-00300PQ

Docket Nº:2018-00300PQ
Party Name:SARAH L. BUDUSON Requester v. CITY OF CLEVELAND Respondent
Case Date:February 12, 2019
Court:Court of Claims of Ohio





No. 2018-00300PQ

Court of Claims of Ohio

February 12, 2019

Sent to S.C. Reporter 3/20/19



{¶1} On January 22, 2018, Investigative Producer Samah Assad made a public records request to respondent City of Cleveland on behalf of WEWS News 5: Pursuant to the Ohio Open Records Act, News 5 requests any and all proposals, documents, internal and external reports, memos, videos, photographs and any other documentation - paper or electronic - related to the bid for Amazon's second headquarters, HQ2.

(Complaint at 5.) On February 8, 2018, the Cleveland Public Records Center acknowledged receipt of the request and advised "You will be contacted via email when your request has been completed." (Id.) Assad sent several inquiries as to the status of the request, but received no response from Cleveland. (Id. at 2-4.) On February 22, 2018, requester Investigative Reporter Sarah Buduson sent an email to Assistant Media Relations Director Latoya Hunter: Per our conversation, I am writing to inquire about public records request # C000177-012218. It has been one month since 5 On You [sic] Side Investigators submitted our request. We would like to know why it has yet to be fulfilled by the City of Cleveland. In the interest of accuracy and fairness, please cite the relevant FOIA exclusion and/or exemption that would allow us to explain to viewers why the city is concealing a record many other cities were eager to share with their citizens.

(Id. at 2.) Cleveland did not respond.

{¶2} On February 27, 2018, Buduson filed a complaint on behalf of WEWS under R.C. 2743.75 alleging denial of access to public records by Cleveland in violation of R.C. 149.43(B). On June 22, 2018, the court was notified that mediation had failed to resolve all disputed issues. On July 25, 2018, Cleveland filed its answer (Response). On August 1, 2018, Cleveland filed an additional pleading (Supplemental Response). On August 28, 2018, Buduson filed a reply. On September 26, 2018, Cleveland filed an additional brief, document, and affidavit regarding JobsOhio records (Second Supplemental Response). On October 19, 2018, Cleveland filed a brief in response to the special master's order of October 3, 2018 (Third Supplemental Response). Cleveland has filed an unredacted copy of its written proposal to Amazon, Inc. to host Amazon's HQ2 ("bid document") and a copy of the redacted version of the bid document that has been released to the public ("redacted bid document"). On November 15, 2018, Buduson filed a second reply to Cleveland's pleadings.

Motion to Dismiss

{¶3} Cleveland moves to dismiss the complaint on the ground that the request was overly broad and ambiguous. (Response, passim.) 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).

{¶4} R.C. 149.43(B)(2) permits, but does not require, a public office to deny a request that is ambiguous, overly broad, or does not enable the office to reasonably identify what public records are being requested. "[I]t 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. See generally Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio-3475, ¶ 22-29. As used in the request, I find that the terms "any and all," "documents," "internal and external reports, memos, videos, photographs and any other documentation - paper or electronic," and "related to," are either ambiguous in meaning or cast an overly broad net for records to be searched.

{¶5} However, a proper request embedded within an otherwise ambiguous or 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, ¶ 1, 17-24, a request for all of a state representative's email was found overly broad, but an embedded request - "including, but not limited to [a particular house bill]" - was sufficiently narrow to be a proper request. Accord, Gupta at ¶ 57. See also Strothers v. Keenon, 8th Dist. Cuyahoga No. 103313, 2016-Ohio-405, 59 N.E.3d 556, ¶ 24-30 (clarified request "ordered released in the spirit of R.C. 149.43, which requires the Public Records Act to be liberally construed in favor of disclosure."). In this case, the wording of the request reasonably identifies the bid document by the wording: "News 5 requests * * * the bid for Amazon's second headquarters, HQ2." In the evidence and pleadings, Cleveland expresses no doubt that the request sought the bid document. The fact that Cleveland failed to deny any part of the request as ambiguous or overly broad prior to litigation suggests that Cleveland accepted at least part of the request as sufficiently specific. (Complaint at 5.) Cleveland's acceptance of sufficient clarity is further supported by its disclosure of "161 pages of readily identifiable documents incident to the Amazon bid" (Response at 4), a reference to its June 15, 2018 online posting of the redacted bid document. (Supp. Response at 3.) Cleveland did not invite revision of the request or offer Buduson information to facilitate revision, as required by R.C. 149.43(B)(2) when denying a request as ambiguous or overly broad. Having accepted this request for processing, failing to deny it as ambiguous or overly broad, providing no information or opportunity to revise it, and referencing the bid document as "readily identifiable" from the request, Cleveland cannot now argue that the bid document was not a responsive record. See State ex rel. Bott Law Group, LLC v. Ohio Dept. of Natural Res., 10th Dist. Franklin No. 12AP-448, 2013-Ohio-5219, ¶ 38-41.

{¶6} I recommend that the motion to dismiss be DENIED as to the embedded request for "the bid for Amazon's second headquarters, HQ2." I recommend that the motion be GRANTED as to the remainder of the request[1]

The Withheld Records

{¶7} The Cleveland bid document consists of a 33-page bid response with a 192-page appendix. (Supp. Response at 3.) The City publicly posted 161 pages of the bid document on June 15, 2018.2 The portions of the records withheld by redaction, and the 64 pages withheld in their entirety, include specific terms of state and local financial incentives offered to Amazon. (Ebersole Aff. at ¶ 8; Deptola Aff. at ¶ 2.) Cleveland also withheld a substantial amount of surrounding text, labels, images, and other material.

Purpose of Public Records Act

{¶8} "Public records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance." Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 16. "[T]he inherent, fundamental policy of R.C. 149.43 is to promote open government, not restrict it." State ex. rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 398 (2000) ("Besser II "). Public records inform the significant public interest in the use of their tax money and other public funds. State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St.3d 258, 261-263, 602 N.E.2d 1159 (1992). Therefore, R.C. 149.43 must be construed liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. Glasgow at ¶ 13; Besser II at 405.

Burdens of Proof

{¶9} 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.).

{¶10} However, the burden of proving that any exception to the Public Records Act applies rests on the public office. The standard is more than mere preponderance of the evidence, as it is enhanced by several factors...

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