Sengstock v. City of Twinsburg, 2021-00330PQ

CourtCourt of Claims of Ohio
Writing for the CourtJEFF CLARK SPECIAL MASTER
Citation2021 Ohio 4438
Decision Date17 November 2021
Docket Number2021-00330PQ
PartiesLOREN C. SENGSTOCK, Requester v. CITY OF TWINSBURG, Respondent

2021-Ohio-4438

LOREN C. SENGSTOCK, Requester
v.

CITY OF TWINSBURG, Respondent

No. 2021-00330PQ

Court of Claims of Ohio

November 17, 2021


Sent to S.C. Reporter 12/17/21

REPORT AND RECOMMENDATION

JEFF CLARK SPECIAL MASTER

{¶1} The policy underlying Ohio's Public Records Act, R.C. 149.43, 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. 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. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, 13. R.C 2743.75 provides a remedy in this court if a public office has denied a person access to public records in violation of R.C. 149.43(B).

{¶2} On April 22, 2021, requester Loren Sengstock made a public records request for six financial reports from the clerk of council for respondent City of Twinsburg. (Complaint at 2.) On May 11 and May 20, 2021, the City produced a number of responsive records. (Id. at 4-5.) However, the clerk advised that

Redactions have been made for personal employee information which I believe falls under "items that do not document the activities of the public office". It also has been redacted for underage employee names

(Id. at 5.) Sengstock challenged the redactions, asking the City to "please provide the

ORC section(s)" authorizing them. (Id. at 6.) The City law director responded:

Although the Sunshine Law does not specifically prohibit the release of children's names from a records request, the decision was made to hold the privacy of children to a higher standard as compared to the adult employees. Some of our part-time and seasonal employees are as young as 16 years old. We believe that it is prudent to protect their identity from
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potential harm that could come to them by publishing their names and positions with the City.

(Id. at 7.) On June 16, 2021, Sengstock filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). On August 18, 2021, the court was notified that the case had not been fully resolved in mediation. On September 1, 2021, the City filed an answer (Response) and a motion to dismiss (MTD). On September 20, 2021, Sengstock filed a reply.

{¶3} The parties advise the court that all disputes have been resolved except as to the City's withholding of names of City employees under the age of eighteen from its Payroll Register. (Response at 1, Reply at 1.)

Motion to Dismiss

{¶4} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.

{¶5} On consideration of the motion, the special master finds that the City's assertions that juvenile employee names are not "records," or that personal privacy rights require their withholding, or that the exercise of good sense allows redaction of the names from the Payroll Register, are not conclusively shown on the face of the complaint. Moreover, as the matter is now fully briefed the arguments to dismiss are subsumed in the arguments to deny the claim on the merits. It is therefore recommended that the motion to dismiss be denied.

Names of Public Employees are Public Records

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{¶6} "Public record' means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units." R.C. 149.43(A)(1). There is no dispute the City is a public office, and the City admits that it keeps the names of its employees in the Payroll Register. If employee's names function in that document as "records," then they meet the definition of "public records."

{¶7} The City discloses the names of employees aged 18 and above but claims that names of employees aged 16 and 17 "do not reflect the activities of the public office" and are therefore not records of the City. (MTD at 4.) Sengstock counters that the City is required by statute to maintain a database or list of employee names that "shall be available on request made pursuant to" the Public Records Act and that no other statute exempts the names of juvenile public employees from release. (Reply at 2-4.)

Burden of Proof

{¶8} In an action to enforce the Public Records Act (PRA), the burden is on the requester to prove an alleged violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). At the outset, the requester must show he sought identifiable public records from a public office pursuant to R.C. 149.43(B)(1). Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33. The defense that a requested item "is not a record" does not assert an exception, and the burden of proof thus remains with the requester. When this defense is raised, a requester must establish that the withheld document, device, or item meets the statutory definition of a "record." 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.

Employee Names are "Records"

The term "records" as used in R.C. Chapter 149:

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includes any document, device, or item, regardless of physical form or characteristic, * * *, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

R.C. 149.011(G). The use of "includes" as a preface to "any document" is an indication of expansion and great breadth rather than constriction, restriction, or limitation. Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20-27.

{¶9} All offices, public and private, create records using the names of their employees to document who they have hired, what functions each employee performs, how much they are paid, how long they have been retained, their promotion and disciplinary history - standard administrative recordkeeping. Without names to associate employees with other administrative and operational records, the public cannot ascertain the qualifications, accountability, and performance of government employees, or identify potential policy issues such as nepotism. Payroll files containing information

including employees' names, addresses, telephone numbers, Social Security numbers ("SSNs"), birth dates, education, employment status and positions, pay rates, service ratings, annual and sick leave information, overtime hours and pay, and year-to-date employee earnings

are routinely recognized as records that "serve to document the organization, functions, [and] operations * * * of the office." E.g., State ex rel. Beacon Journal Publ. Co. v. Akron, 70 Ohio St.3d 605, 605-606, 640 N.E.2d 164 (1994) (SSNs found to be identification "records" of the office as used in the master payroll file).

{¶10} The City cites no case law holding that names of employees do not document the official business of public offices, or that the names of juvenile employees do not document official business to the same extent as names of adults. The City's reliance on State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144 (2000) is inapposite. That case involved photographs, names, addresses and other

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personal information of juvenile citizens patronizing public pools, and expressly distinguished their private information from the same information about public employees:

At issue here is information regarding children who use the City's swimming pools and recreational facilities. The subjects of appellee's public records request are not employees of the government entity having custody of the information. They are children--private citizens of a government, which has, as a matter of public policy, determined that it is necessary to compile private information on these citizens. It seems to us that there is a clear distinction between public employees and their public employment personnel files and files on private citizens created by government.

(Emphasis added.) Id. at 369. The General Assembly has separately codified the record status of all employee names by mandating their release as public records:

Each public office or person responsible for public records shall maintain a database or a list that includes the name of all public officials and employees elected to or employed by that public office. The database or list is a public record and shall be made available upon a request made pursuant to section 149.43 of the Revised Code.

(Emphasis added.) R.C. 149.434(A).[1]

{¶11} Names established as public cannot be made confidential merely by placing them in a different location. "Once clothed with the public records cloak, the records cannot be defrocked of their status." State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 378, 662 N.E.2d 334 (1996). Accord State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor's Office, 105 Ohio St.3d 172, 2005-Ohio-685, 824 N.E.2d 64, ¶ 9-14; State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 316, 750 N.E.2d 156 (2001); 1996 Ohio Atty.Gen.Ops. No. 034.

{¶12} The special master finds...

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