Welin v. City of Hamilton

• Decision Date: 05 July 2022
• Docket Number: 2021-00748PQ
• Citation: 2022 Ohio 2661
• Parties: PETER WELIN, ESQ. Requester v. CITY OF HAMILTON, OHIO Respondent
• Court: Ohio Court of Claims

2022-Ohio-2661

PETER WELIN, ESQ. Requester
v.
CITY OF HAMILTON, OHIO Respondent

No. 2021-00748PQ

Court of Claims of Ohio

July 5, 2022

Sent to S.C. Reporter 8/4/22

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} In a letter dated July 6, 2021, requester Peter Welin made a public records request to respondent City of Hamilton, Ohio as follows:

Pursuant to Ohio Revised Code §149.43(B), I hereby request the production of, or the opportunity to inspect and copy, any and all documents, files, records and other information and materials in the possession, custody or control of the City of Hamilton, Ohio, created or received between January 1, 2006, and the date of this letter concerning, discussing, relating to, or referring in any manner to the following hydroelectric projects (collectively the "Hydroelectric Projects") owned, constructed funded, and/or operated, in whole or in part, by American Municipal Power, Inc. ("AMP"), and/or its parent companies, sister companies, subsidiaries, or other related companies, including but not limited to, all documents referring or relating to any claims by or against AMP relating to the Hydroelectric Projects

(1) The Meldahl Hydroelectric Project ("Meldahl") located on the Kentucky side of the existing USACE Captain Anthony Meldahl Lock and Dam facility on the Ohio River;

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(2) The Cannelton Hydroelectric Project ("Cannelton") located on the Kentucky side of the existing USACE Cannelton Locks and Dam facility on the Ohio River;

(3) The Willow Island Hydroelectric Project ("Willow Island") located on the West Virginia side of the existing USACE Willow Island Locks and Dam facility on the Ohio River; and

(4) The Smithland Hydroelectric Project ("Smithland") located on the Kentucky side of the existing USACE Smithland Locks and Dam facility on the Ohio River.

Without limiting the foregoing request, and as background, the City investigated and evaluated the prospect of developing, constructing, and operating a hydroelectric power plant at the Meldahl site, and subsequently worked with AMP to do so. The City has also had employees or representatives participate as board members of AMP or its affiliates, or on boards or committees related to these power plants, and would therefore also have records developed, sent or received as a result of such participation. This request includes, among other things, all records which are about the feasibility assessment, licensing, planning, contracting, financing, development, and operation of all of the projects, and all claims and disputes arising from or related to their construction or operation.

(Complaint at 8-9.) The City responded through its law director on July 30, 2021:

Your request for records associated with the Cannelton, Willow Island, and Smithland projects is denied as these are not records kept by the City. See State ex rel. Evans v. City of Parma, 8th Dist. Cuyahoga No. 81236, 2003-Ohio-1159. Your request for records associated with the Meldahl project is denied as ambiguous and overly broad. Your request does not provide reasonable clarity so that the City can identify responsive records based on the manner in which the City ordinarily maintains and accesses records. See O.R.C. Section 149.43(8)(2); State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, P 19.

If you would like to clarify or revise your request, please feel free to contact me.

(Id. at 10.) Welin replied by objecting that the City's denial based on ambiguity, overbreadth and non-existent records was unjustified (Id. at 11-12.) The City responded

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that it stood by its July 30, 2021 letter and asked again if Welin would like to clarify or revise his request as to the Meldahl project. (Id. at 14.)

{¶3} On December 29, 2021, Welin filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records by the City in violation of R.C. 149.43(B). Following mediation, the City filed its response to the complaint on April 1, 2022. On April 19, 2022, Welin filed a reply. On May 16, 2022, the City filed a sur-reply and filed a supplement thereto on May 18, 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.

No Cause of Action for Modified Requests

{¶5} Welin argues that the City's provision of 400 pages of records during mediation demonstrates it always knew they were responsive to his original July 6, 2021 requests. (Reply at 2-5.) However, these records were produced in response to a new set of narrowed requests that just as arguably show Welin could have crafted his earlier requests to identify records with sufficient specificity. (Sur-reply at 2-4, Exhs. A, B.)^[1]

{¶6} Regardless, new requests made during public records litigation do not relate back to the complaint. There is no cause of action based on violation of R.C. 149.43(B)

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unless the request was made and denied prior to the complaint. See Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14; State ex rel. Bardwell v. Ohio Atty. Gen., 181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th Dist.). The Special Master concludes that Welin's new requests are not before the court. Nor do they constitute evidence of the nature or validity of his initial requests.

Non-Records Need not be Provided

"Records" are defined in R.C. 149.011(G) as including:

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.

(Emphasis added.) R.C. 149.011 (G) requires more than mere receipt and possession for an item to be a "record" subject to request under R.C. 149.43. State ex rel. Beacon Journal Publ'g Co. v. Whitmore, 83 Ohio St.3d 61, 64, 697 N.E.2d 640 (1998). "By so holding, we reject relators' contention that a document is a 'record' under R.C...