Warchol v. Superintendent of Wash. Local Sch. Dist.

• Decision Date: 31 August 2022
• Docket Number: 2021-00698PQ
• Citation: 2022 Ohio 3140
• Parties: BRITTANY WARCHOL Requester v. SUPERINTENDENT OF WASHINGTON LOCAL SCHOOL DISTRICT Respondent
• Court: Ohio Court of Claims

2022-Ohio-3140

BRITTANY WARCHOL Requester v. SUPERINTENDENT OF WASHINGTON LOCAL SCHOOL DISTRICT Respondent

No. 2021-00698PQ

Court of Claims of Ohio

August 31, 2022

Sent to S.C. Reporter 9/8/22

REPORT AND RECOMMENDATION

JEFF CLARK SPECIAL MASTER

{¶1} The Public Records Act requires a public office to make copies of requested public records available at cost and within a reasonable period of time. R.C. 149.43(B)(1). The Act is construed liberally in favor of broad access, with any doubt resolved in favor of disclosure. State ex rel Hogan Lovells U.S., LLP. v. Dept. of Rehab. & Corr ., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides an expeditious and economical procedure to resolve public records disputes in the Court of Claims.

{¶2} On September 30, 2021, requester Brittany Warchol made a public records request to respondent Superintendent of Washington Local School District Kadee Anstadt (the Superintendent) as follows:

This is a request for information filed under the Freedom of Information Act.

I request that you provide me with all documents regarding the following topic: COVID-19, Certifications School Funding, and HVAC system maintenance. Documentation to include e-mail communication via work account as well as private e-mails used to conduct business, letters, logs Doctorate Degree (MD), as well as internal communication. Correspondence between Kadee Anstandt and the Department of Education, Kadee Anstandt and the Department of Health/ Ohio Health Department, as well as Kadee Anstandt and Governor Mike DeWine, and Kadee Anstandt and all serving members of the school board and any other pertinent entity.

I am requesting copies of all correspondence dated 08/01/2018 -11/01/2021 in regards to COVID-19 Grant Funding, Emergency/Safety response plan in regards to a "pandemic, epidemic, or communicable viral disease." Response plan to include any resources or educational material in which the plan was set forth upon. Communication to include but not be limited to masks, vaccinations, and documentation showing school officials to include, Superintendent Kadee Anstadt and all governing members of the school board having the rights under the law to prescribe, advise, recommend, administer OR dispense for compensation of any kind, direct or indirect, a drug or medicine, as well as treatment, of whatever nature for the cure of a disease or infirmity. Grant funding under ESSER, ARP ESSER, as well as GEER funding to include but not limited to the use of said funds up until this request whether it be a pending approval or purchased. My final request at this time, all documentation in regards to HVAC system maintenance logs.

(Emphases, grammar, and spelling sic.) (Complaint at 3-4.) Anstadt responded on October 6, 2021 that the school district was not subject to FOIA, that portions of the request were ambiguous and overbroad, and invited Warchol to narrow her requests. Anstadt advised there were no responsive records regarding Anstadt or board members advising or prescribing medical treatment for compensation and provided Warchol with a copy of the district's public records policy. (Id. at 5-6.) On October 7, 2021, Warchol replied she did not believe that any of her request was ambiguous or overly broad and made a request for the district records retention schedule. (Id. at 7-8.) On October 18, 2021, Anstadt advised there had been no emails between her and the governor, and asked Warchol to revise her request for email using a narrower topic than "pandemic." (Id. at 8-9.) On October 20, 2021, Warchol clarified that she was "requesting documentation showing Ms. Kadee Anstadt has a doctorate degree in the field of Medicine (MD), and that her request for "all correspondence dated 08/01/2018 - 11/01/2021 in regards to COVID-19 [excludes] communication to students and families." This email provided a few more specific topics of requested correspondence. (Id. at 9- 10.) On November 15, 2021, Anstadt provided a set of HVAC records. (Id. at 11.) On November 19, 2021, Warchol stated she had not yet received the records requested on September 30th.^[1] (Id. at 12.) On December 1, 2021, Anstadt referred Warchol to responsive "district COVID data * * * posted weekly on the district website and [] reported monthly at Board of Education meetings," again declined as overly broad the requests for emails, and reiterated that the office had no records responsive to the "practice of medicine" questions. (Id. at 4-5; Response, Anstadt Aff., Exh. 8.) The parties ended most of these communications with offers to meet and discuss the request, with no indication that any meeting ever took place.

{¶3} On December 6, 2021, Warchol filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records by the Superintendent in violation of R.C. 149.43(B). Following partially successful mediation, the Superintendent filed a motion to dismiss (Response) on August 9, 2022.

Burden of Proof

{¶4} The requester in an action under R.C. 2743.75 bears an overall burden to establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist). The requester bears an initial burden of production "to plead and prove facts showing that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or records custodian did not make the record available." Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33.

Motion to Dismiss

{¶5} To dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt 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. The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).

{¶6} The Superintendent moves to dismiss the complaint on the grounds that, 1) Warchol's request was made under the federal Freedom of Information Act and is therefore unenforceable against a state public office, 2) Warchol's claims are moot to the extent records have been produced, and 3) the ambiguous and/or overly broad portions of a request do not create a duty for a public office to produce records.

The FOIA Does Not Apply to Ohio Government Offices

[T]he FOIA does not apply to nonfederal entities like Akron. Sections 551 (1) and 552(f), Title 5, U.S. Code; State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002 Ohio 7041, 781 N.E.2d 163, P32.

State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 33. Accord State ex rel. Warren v. Warner, 84 Ohio St.3d 432, 433, 704 N.E.2d 1228 (1999); State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 582, 669 N.E.2d 835 (1996); State v. Heid, 4th Dist. Scioto No. 14CA3655, 2015-Ohio-1467, ¶ 9-10. Warchol's first message of September 30, 2021, is titled FOIA REQUEST and begins: "This is a request for information filed under the Freedom of Information Act." (Complaint at 3.) The request makes no mention of the Ohio Public Records Act, R.C. 149.43, and near its conclusion adds, "I anticipate you contacting me per section 16 of the FOIA; Duty to provide advice and assistance." (Id. at 4.) Despite the Superintendent's response that FOIA "does not apply to Washington Local Schools" (Id. at 5), Warchol did not correct her basis for the request in subsequent correspondence other than to offer "my apologies for you acting like the same thing isn't in Ohio's Revised Code 149.43 section (B)(2)" (Complaint at 8), and noting in the complaint that the Superintendent stated "she did not understand the information I was requesting and that it was based off of R.C. 149.43, 'ambiguous and overly broad.'" (Id. at 1.)

{¶7} After noting the FOIA issue, the Superintendent advised Warchol of defenses that she believed would apply were the request made under the Ohio Public Records Act but then attempted to provide responsive records. (Complaint at 6 - 10/6/21 email.) Although her wording is not clear, Warchol then appeared to concede that the request must be made under the Public Records Act and the Superintendent appeared to accept that the request was now properly made under Ohio law. The Special Master therefore recommends the court deny the motion to dismiss based on this ground.

{¶8} The Special Master finds that mootness, ambiguity, and overbreadth are partially apparent on the face of the complaint, as noted below. However, for concision and because the matter has been fully briefed, the Special Master recommends the court deny the motions to dismiss on these grounds and proceed on the merits.

Mootness

{¶9} In an action to enforce R.C. 149.43(B), a public office may produce 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, ¶ 22. The record shows the Superintendent provided the following records to Warchol prior to the filing of the complaint:

November 15, 2021 - approximately 70 pages of documentation in regards to HVAC system maintenance logs. (Complaint at 11;

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