State ex rel. Kesterson v. Kent State Univ.

• Citation: 156 Ohio St.3d 22,2018 Ohio 5110,123 N.E.3d 895
• Decision Date: 20 December 2018
• Docket Number: No. 2016-1123,2016-1123
• Parties: The STATE EX REL. KESTERSON v. KENT STATE UNIVERSITY.
• Court: United States State Supreme Court of Ohio

156 Ohio St.3d 22

123 N.E.3d 895

2018 Ohio 5110

The STATE EX REL. KESTERSON

v.KENT STATE UNIVERSITY.

No. 2016-1123

Supreme Court of Ohio.

Submitted May 8, 2018

Decided December 20, 2018

The Chandra Law Firm L.L.C., Subodh Chandra, Ashlie Case Sletvold, and Marvin C. Brown IV, Cleveland, for relator.

Michael DeWine, Attorney General, and Jeffrey Knight and Sarah E. Pierce, Assistant Attorneys General, for respondent.

Kennedy, J.{¶ 1} Relator, Lauren Kesterson, seeks a writ of mandamus to compel respondent, Kent State University, to comply with her records request under the Public Records Act, R.C. 149.43. Because Kesterson has not shown that she is entitled to additional records beyond those that she has already received pursuant to her request, we deny the writ. We award Kesterson statutory damages in the amount of $1,000 and attorney fees, but we deny court costs.

Background

{¶ 2} On April 13, 2016, by e-mail and certified mail, Kesterson sent a voluminous public-records request to Kent State, seeking the following records:

1. Any insurance policy that could be construed to cover claims against the University for violating Title IX [ 20 U.S.C. 1681 et seq. ] or denying a student-athlete the equal protection of the laws under the Fourteenth Amendment.

2. Any insurance policy that could be construed to cover claims against a present or former University employee for violating Title IX, denying a student-athlete the equal protection of the laws under the Fourteenth Amendment, or intentionally inflicting serious emotional distress on a student-athlete.

3. All records regarding Karen Linder's departure from the University (including all communications such as emails, text messages, voicemails, etc.);

4. All records of any restrictions or limitations Kent State University placed on Karen Linder following or related to her departure (such as restrictions on contacting members of the softball team, accessing non-public areas of [Kent State] facilities such as the softball team's locker room, using [Kent State] facilities for her own economic benefit, or disparaging or defaming any past or present members of the softball team or their parents);

5. All records of communications involving any Athletic Department personnel regarding Lauren Kesterson from August 28, 2015 to the present;

6. All records of communications between Joel Nielsen and Karen Linder from August 20, 2015 to the present regarding Lauren Kesterson, any complaint she initiated regarding Linder (including any investigation of that complaint), or Linder's resignation (including the surrounding circumstances and the terms of her departure);

7. All records of communications between Janet Kittell and Karen Linder from August 20, 2015 to the present regarding Lauren Kesterson, any complaint she initiated regarding Linder (including any investigation of that complaint), or Linder's resignation (including the surrounding circumstances and the terms of her departure);

8. All records of communications between Joel Nielsen and Erin Barton regarding Lauren Kesterson or Karen Linder from August 20, 2015 to September 30, 2015;

9. All records of communications between Joel Nielsen and Pamela Fitzgerald regarding Lauren Kesterson or Karen Linder from August 20, 2015 to the present;

10. All records of communications between Joel Nielsen and Loretta Shields regarding Lauren Kesterson or Karen Linder from August 20, 2015 to the present;

11. All records of communications between Joel Nielsen and any member of Human Resources Staff (including Office of Compliance/Equal Opportunity and Affirmative Action or Title IX) regarding Lauren Kesterson or Karen Linder from August 20, 2015 to the present;

12. All records Joel Nielsen generated or that were generated on his behalf regarding Lauren Kesterson (including records regarding her rape report) or Karen Linder from August 20, 2015 to the present including any handwritten notes, electronic notes, calendar entries, emails, text messages, etc.;

13. All records Joel Nielsen received regarding Lauren Kesterson (including records regarding her rape report) or Karen Linder from August 20, 2015 to the present including any handwritten notes, electronic notes, calendar entries, emails, text messages, etc.;14. Records of any check(s) or payment(s) provided to Karen Linder after August 28, 2015 (including images of any check(s));

15. All records regarding Linder's use of [Kent State] facilities since her August 28, 2015 resignation (including all communications such as emails, text messages, voicemails, etc.);

16. Regarding Kent State softball's official Facebook and Twitter accounts:

a. All records of postings since August 28, 2015 (including deleted posts);

b. All records regarding which individuals have or had access to those accounts since August 28, 2015;

17. All records regarding any reports by Lauren Kesterson regarding sexual assault, failure to take appropriate steps in response to a sexual-assault report, retaliation for reporting sexual assault, or other mistreatment by any Kent State student, former student, personnel, or former personnel (including all communications such as emails, text messages, voicemails, etc.);

18. All records regarding any efforts by the University to prevent or remedy retaliation against Lauren Kesterson for reporting that a Kent State baseball player had raped her;

19. All records regarding any efforts by the University to prevent or remedy retaliation against Lauren Kesterson for reporting that former head softball coach Karen Linder had engaged in a cover up of Lauren Kesterson's rape report;

20. From August 2012 to the present, records of emails from April Hull to any member(s) of the softball team that include reference to training sessions (such as compliance or NCAA-mandated training for student-athletes); and

21. All records of training or information provided to the Kent State varsity baseball team regarding Title IX, gender equity, sexual harassment, sexual assault, Sexual and Relationship Violence Support Services, or the University's policies or procedures for reporting instances of gender-based harassment or sexual assault (from the 2012-2013 academic year to the present).

{¶ 3} On April 15, 2016, Kent State acknowledged receipt of the request and stated that responsive records were being identified and gathered. Kesterson's attorney, Ashlie Sletvold, e-mailed Kent State twice in May, asking when she could expect a response. She followed up with Kent State by e-mail again on June 7 and June 14, having received no documents.

{¶ 4} On June 20, counsel for Kent State, Nichole DeCaprio, responded with a detailed letter and provided 446 pages of responsive records. The records that Kent State sent were responsive to request numbers 1, 2, 9, 14, 16, 17, 20, and 21, although Sletvold alleged that some responses were "merely partial and incomplete." Kent State objected to the remaining requests as overbroad. Nonetheless, it searched for records responsive to request numbers 6, 7, 8, 10, 12, and 13 but found none.

{¶ 5} On June 29, 2016, another of Kesterson's attorneys, Peter Pattakos, wrote to Kent State, raising concerns with its responses and its explanations for not responding to some requests. Kesterson also revised her first and second requests to include "copies of all insurance policies that the University carries or has carried since 2014." Kent State provided no further response.

{¶ 6} Kesterson filed her mandamus complaint on August 2, 2016, alleging that Kent State's objections were meritless and that her request "has been outstanding for 110 days." Kesterson asks for "a peremptory writ of mandamus directing Kent State to make responsive records available promptly," an award of attorney fees and costs, an award of statutory damages, and "any other relief available to the firm * * * under R.C. 149.43."

{¶ 7} On October 11, 2017, we granted Kesterson an alternative writ setting forth a schedule for the parties to present evidence and submit briefs. 150 Ohio St.3d 1449, 2017-Ohio-8136, 83 N.E.3d 936. Kent State filed 13 volumes of sealed evidence, and the parties filed briefs.

Kesterson's federal litigation

{¶ 8} On February 9, 2016, Kesterson filed a complaint against Kent State and Karen Linder in federal district court alleging, among other claims, civil-rights violations under Title IX of the Education Amendments of 1972, as amended. Kesterson v. Kent State Univ. , N.D. Ohio case No. 5:16-CV-00298, 2018 WL 827864. In March 2017, Kesterson served discovery requests on the defendants, including requests for production of documents ("RPD"). In July 2017, Kent State produced approximately 6,100 pages of documents in response to Kesterson's RPD, and in September, the university provided Kesterson with additional documents on two occasions. Kesterson's federal litigation is ongoing.

Ohio's Public Records Act

{¶ 9} It has long been the " ‘rule in Ohio * * * that public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people.’ "

State ex rel. Patterson v. Ayers , 171 Ohio St. 369, 371, 171 N.E.2d 508 (1960), quoting 35 Ohio Jurisprudence, Inspection of Records: Generally, Section 41, at 45 (1934). "The Public Records Act reflects [Ohio's] policy that ‘open government serves the public interest and our democratic system.’ " State ex rel. Glasgow v. Jones , 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13, quoting State ex rel. Dann v. Taft , 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. It states that "[u]pon a request made in accordance with division (B) of this section * * *, a public office * * * shall transmit a copy of a public record to any person * * * within a reasonable period of time after receiving the request for the copy." R.C. 149.43(B)(7).

{¶ 10} The act defines "public record" as "records kept by any public office, including, but not limited to, state * * * units." R.C. 149.43(A)(1) ; see also R.C....