Requester v. Vill. of Alexandria

• Decision Date: 16 March 2018
• Docket Number: Case No. 2017-00808PQ
• Citation: 2018 Ohio 1581
• Parties: STANLEY E. ROBINSON Requester v. VILLAGE OF ALEXANDRIA Respondent
• Court: Ohio Court of Claims

2018 Ohio 1581

STANLEY E. ROBINSON Requester v. VILLAGE OF ALEXANDRIA Respondent

Case No. 2017-00808PQ

Court of Claims of Ohio

To S.C. Reporter April 23, 2018

March 16, 2018

Special Master Jeffery W. Clark

REPORT AND RECOMMENDATION

{¶1} Between September 20, 2015 and September 17, 2017, requester Stanley Robinson submitted six letters to respondent Village of Alexandria (Village) containing a total of 400 public records requests. (Complaint at 49-114.) The Village responded that the September 20, 2015 request was voluminous and contained language that was ambiguous and overly broad, but would be reviewed and responded to in batches "as is logistically practical." (Id. at 60.) The complaint attached documentation that Robinson characterizes as the "village's attempted compliance records." (Id. at 115-135). The complaint lists the response status of 338 remaining requests as either "no response" or "not satisfied." (Id. at 4-48.)

{¶2} On October 5, 2017, Robinson filed a complaint under R.C. 2743.75 alleging denial of timely access to public records in violation of R.C. 149.43(B). On October 10, 2017, the court referred the case to mediation. The parties engaged in four mediation sessions. On December 14, 2017, the Village filed a spreadsheet listing Robinson's requests and the Village's responses. On January 17, 2018, the mediator filed an entry stating:

On January 12, 2018, a fourth mediation was conducted with the parties. During the mediation, the parties agreed to the following:

1) Respondent's Village Administrator will provide requester with documents in response to 18 currently outstanding requests on or before January 31, 2018; 2) Requester may visit the Village of Alexandria's office during normal business hours to inspect any remaining records that have not been provided from now until February 15, 2018;

3) On February 15, 2018, requester shall file with the court either a notice of voluntary dismissal, or a letter stating that the case has not been resolved through mediation. The case shall then proceed pursuant to R.C. 2743.75(E)(2) if necessary.

(Emphasis sic.) On February 1, 2018, the Village filed

a comprehensive spreadsheet of Requester Stanley Robinson's revised public records requests with Respondent's responses to each request, marked and attached as Exhibit A. The additional documents were produced to Mr. Robinson on January 31, 2018. As previously discussed during the fourth mediation, Mr. Robinson may visit the Village of Alexandria's office during normal business hours to look for and inspect any remaining records.

"Robinson came to the Village office once in January 2018, while [the mayor] was present, and spent less than one hour searching for documents." (Jasper Aff. at ¶ 5.) On February 12, 2018, Robinson filed a request that the case proceed to judicial determination of 37 "remaining unsatisfied requests." On February 26, 2018, the Village filed a response and motion to dismiss (Response) with the affidavits of Mayor Jim Jasper, Fiscal Officer Carol Gissinger, and Village Administrator Linda Propster.

{¶3} 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, the 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). 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.

{¶4} 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 he is entitled to relief. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 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. 17 CAI 05 0031, 2017-Ohio-7820, ¶ 27-30.

Motion to Dismiss

{¶5} The Village moves to dismiss the complaint on the grounds that, 1) it has released all public records in its possession that are responsive to the requests, and 2) certain requests are overly broad, vague, and/or ambiguous. 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). The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193.

Suggestion of Mootness

{¶6} 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. A court considering a claim of mootness for a public records request must first determine what records were requested, and then whether any responsive records were provided. The complaint included attached copies of multiple public records requests made to respondent, listed the requests Robinson claimed were unfulfilled, and included no admission or evidence that the Village had provided records responsive to the unfulfilled requests. While the Village may dispute the validity of a request based on facts and circumstances later evidenced, and may moot claims by providing records prior to the report and recommendation, the complaint on its face states a claim for which relief may be granted. I recommend that the court proceed to determine whether the remaining records were withheld in violation of R.C. 149.43(B).

{¶7} While not apparent in the complaint and therefore not subject to the motion to dismiss, the Village submitted evidence that it later provided Robinson with a number of responsive records and explanations for non-production. (December 14, 2017, January 12, 2018, and February 1, 2018 notices of filing and exhibits.) Robinson concedes this production and these explanations by limiting his claim at this time to 37 "remaining unsatisfied requests." (February 12, 2018 notice, spreadsheet.) I therefore recommend that the claim for production be DENIED as moot as to all requests other than those listed in Robinson's February 12, 2018 notice.

Ambiguous and Overly Broad Requests

{¶8} Although some of the remaining requests are worded in a manner that is likely ambiguous or overly broad, each must be analyzed under the totality of the facts and circumstances in the case. State ex rel. Zidonis v. Columbus State Cmty. College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 26. I find provisionally that the complaint on its face states a claim for which relief may be granted. I recommend that the court DENY the motion to dismiss on this ground, and proceed to determine whether the requests that are allegedly ambiguous or overly broad were denied in violation of R.C. 149.43(B)(2).

{¶9} 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." Zidonis at ¶ 21-22; State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006 Ohio 6365, 857 N.E.2d 1208, ¶ 29. A request for an entire category of records is improper. 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, supra (all complaint files, all litigation files); State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 16-19 (all email sent or received for six months by one official); State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 1-3 (prison quartermaster's orders and receipts for clothing for seven years); State ex rel. McElroy v. Polito, 8th Dist. Cuyahoga No. 77042, 1999 Ohio App. LEXIS 5683 (Nov. 30, 1999) (all marriage license applications from a specified year, where no collection or index of such records existed). A public office has no duty to organize its records to permit easier searching based on a requester's preferred criteria. Zidonis at ¶ 28-30.

{¶10} The special master first notes that the parties, to their credit, cooperated both prior to this action and in court mediation to resolve the vast majority of the original, voluminous requests. Of the remaining requests, the Village asserts that twelve are overly broad, vague,...