Requester v. E. Wayne Fire Dist.

Decision Date08 November 2017
Docket NumberCase No. 2017-00426-PQ
Citation2017 Ohio 8951
CourtOhio Court of Claims
Special Master Jeffery W. Clark

{¶1} In a letter dated December 19, 2016, requester David Wengerd made a public records request of respondent East Wayne Fire District ("East Wayne FD") including, as relevant to this action:

"Any and all attorney fees paid in 2015 and 2016 and for what purpose and to whom.
* * *
Any and all grants that have been applied for and or received since 2014. This would include any and all paperwork either digital or hardcopy including the applications."

(Complaint, p. 3.) East Wayne FD responded on December 30, 2016 by requesting clarification of the request for attorney fees documents, requesting clarification of the request for grant records, and advising that East Wayne FD does not maintain copies of Federal Emergency Management Agency (FEMA) grant applications. (Complaint, p. 4-6.) On January 9, 2017, Wengerd submitted the following clarification:

1. All invoices received and checks that have been written to Atty. Comstock, * * * in 2015 and 2016.
* * *
3. I am looking for the applications, notifications, and terms of the following FEMA Grants.
A. 2014 SAFER Grant for hiring for $648,000.00.
B. 2015 SAFER Grant for recruitment for $639,950.00.
C. 2015 AFG Grant for Paid On Call/Stipend for personal protection for $284,457.00.
* * *
5. The number of Fire and EMS runs for the Village of Dalton for 2016.
6. The number of runs for Fire and EMS for the unincorporated parts of Sugar Creek Township for 2016."

(Complaint, p. 7.) On January 22, 2017, East Wayne FD responded to request # 3 by stating: "Federal grants are applied for and processed through a federal government portal & applicants are required to use this portal unless exempted by federal law. EWFD is not exempted." It stated in response to requests # 5 and 6,

"we do not have any document that divides the information the very specific way you requested. Monthly runs are recorded in our monthly meeting minutes that are posted (after approval) on our website at They are also announced during monthly meetings when the fire chief gives his report."

(Complaint, p. 22.) On February 9, 2017, East Wayne FD provided copies of check stubs and redacted billing statements of attorney David Comstock. (Complaint, p. 8-21.) On February 25, 2017, Wengerd repeated his request for the federal grant applications, and asked: "Please cite the ORC Rule or OAG Opinion that states that EWFD does not have to provide this information." He repeated his request for "a call log or listing of all FIRE and EMS runs for Sugar Creek Township and the Village of Dalton for the entire year of 2016." (Complaint, p. 23.) On March 21, 2017, East Wayne FD sent Wengerd the following explanation for its denial of copies of the applications for federal grants:

"[T]he Fire District has interpreted your request to mean applications for SAFER and AFG programs administered by the Federal Emergency Management Agency/Department of Homeland Security.
The District does not have any such record.
The Fire District does not have an obligation to produce records that are not under its control. See State ex rel. Doe v. Tetrault, Clairmont [sic] App. No. CA2011-10-070, 2012 WL 3641634, 2012-Ohio-3879.
The process for submitting a FEMA grant requires an online application filed through FEMA's website which is governed and controlled by FEMA. The grant application is completely electronic and the District has not maintained any electronic or paper copies of the grant applications."

(Complaint, p. 24.) On March 21, 2017, East Wayne FD reiterated its denial of the request for a call log or listing of specified fire and EMS runs as not existing in a single document. (Complaint, p. 26.)

{¶2} On May 9, 2017, Wengerd filed a complaint under R.C. 2743.75 alleging denial of access to public records by East Wayne FD in violation of R.C. 149.43(B). The complaint seeks relief regarding the following items: 1) applications for the three specified SAFER grants, 2) call logs for fire and EMS runs for Sugar Creek Township and the Village of Dalton, and 3) unredacted invoices from attorney David Comstock. The matter was referred for mediation, and the court was notified that the parties had not resolved all disputed issues. On July 27, 2017, East Wayne FD filed a response and motion to dismiss. On September 7, 2017, East Wayne FD filed unredacted copies of all withheld records responsive to the requests, under seal, with additional briefing. On September 27, 2017, requester filed a reply to respondent's pleadings.

{¶3} R.C. 149.43(B)(1) requires public offices to make their public records available for inspection, or make copies available, upon request by any person. 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, 1242 (1997). Therefore, R.C. 149.43 must be 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).

{¶4} R.C. 2743.75(F)(1) states that public records claims filed thereunder are to be determined through "the ordinary application of statutory law and case law." Case law regarding the alternative statutory remedy of a mandamus action1 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, ¶ 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 (1954), paragraph three of the syllabus. See Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

{¶5} There is no dispute that East Wayne FD is a public office. East Wayne FD does dispute that its FEMA SAFER grant applications are "records" of its official functions, or are physically "kept" by it, arguing that they are therefore not subject to disclosure under the Public Records Act as "public records." See R.C. 149.43(A)(1) ("'Public record' means records kept by any public office, * * *.")

Motion to Dismiss

{¶6} East Wayne FD moves to dismiss the complaint on the grounds that, 1) the request for fire and EMS runs has been rendered moot by provision of those records subsequent to the filing of the complaint, 2) the request for legal invoices for David Comstock has been rendered moot by provision of those records subsequent to the filing of the complaint, 3) the legal invoices of David Comstock were properlyredacted to withhold attorney-client privileged information, and 4) with respect to the applications for FEMA grants, a) no copies are kept by East Wayne FD, b) the final application is the property and record of the Department of Homeland Security, c) the "grant narrative" portions of the grant applications constitute trade secrets of East Wayne FD and the independent consultant who composed the narratives, and d) the "grant narrative" portions of the grant applications are copyrighted as the literary work of the grant writer and the District.

{¶7} 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

{¶8} 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 of records moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, ¶ 18-22. A court considering a claim of mootness must first determine what records were requested, and then whether all responsive records were provided. Wenger requested specific call logs of fire and EMS runs, but affirms that subsequent to the filing of the complaint East Wayne FD provided these records. "I am satisfied with the production of these records for the Fire and EMS runs." (August 15, 2017 Response to Order.) I therefore recommend that the motion to dismiss the claim for production of fire and EMS run records as moot be GRANTED.

{¶9} With respect to the request for billing invoices of attorney David Comstock, East Wayne FD provided Wengerd with redacted invoices. Wengerd disputes that the Comstock invoices were properly redacted to remove only attorney-client and/or trial preparation information. I therefore recommend that the motion to dismiss this claim as moot be GRANTED only as to the unredacted portions of the provided invoices of David Comstock, and DENIED as to the redacted portions.

Application of Claimed Exceptions

{¶10} R.C. 149.43(A)(1) enumerates...

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