Wilhelm v. Jerusalem Twp. Zoning
| Decision Date | 01 October 2020 |
| Docket Number | Case No. 2020-00342PQ |
| Citation | 2020 Ohio 5283 |
| Parties | KAREN WILHELM Requester v. JERUSALEM TOWNSHIP ZONING Respondent |
| Court | Ohio Court of Claims |
{¶1} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the Court of Claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the 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. 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.
{¶2} Requester Karen Wilhelm sent correspondence to respondent Jerusalem Township from February 11, 2020 through May 28, 2020 requesting answers to questions about certain township zoning decisions. The Township answered some of the questions and referred her to relevant sections of the Jerusalem Township Zoning Resolution and to her negotiated agreement in related litigation in the Oregon Municipal Court. (Complaint at 2-33.)
{¶3} On June 1, 2020, Wilhelm filed a complaint pursuant to R.C. 2743.75 alleging that the Township had denied access to public records in violation of R.C. 149.43(B). Following unsuccessful mediation, the Township filed a response and motion to dismiss (Response) on September 3, 2020. On September 28, 2020, Wilhelm filed a reply.
{¶4} Entitlement to relief in an action filed under R.C. 2743.75 must be established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). When a defense of ambiguity or overbreadth is raised, the requester must show that she reasonably identified the record sought:
"[I]t is the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue." State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, 1993 WL 173743, *4 (Apr. 28, 1993), aff'd, 68 Ohio St.3d 117, 623 N.E.2d 1202 (1993).
If an office asserts that a requested record does not exist, the requester must show that it does. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 22-26. If a document's status as a "record" of the public office is denied, the burden remains on the requester to establish that status. 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.
{¶5} 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. 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 Township moves to dismiss the complaint on the grounds that, 1) it has satisfied Wilhelm's requests for specific records, 2) some records sought do not exist, and 3) the remainder of the requests are for information or explanations, rather than for specific, existing records. Under the abbreviated pleading procedure in this form of action (see R.C. 2743.75(D)(1) and (E)(2)) the Township's defenses have been filed as a combined response and motion to dismiss. On consideration of the motion to dismiss, I find the grounds for dismissal are not established on the face of the complaint. Moreover, as the matter is now briefed I find that the arguments are subsumed in the arguments to deny the claim on the merits. I therefore recommend that the motion to dismiss be denied and the matter determined on the merits.
{¶7} On April 28, 2020, respondent's trustees sent Wilhelm a letter answering several of her written questions about receipt and investigation of zoning complaints,1 but declining to answer the following questions:
(Complaint at 15-17.) On May 19, 2020, Wilhelm added the following questions:
(Emphasis added.) (Id. at 13-14.) On May 22, 2020, a responding township trustee repeated that some of Wilhelm's May 19, 2020 questions were the subject of and had been resolved in enforcement litigation in the Oregon Municipal Court. He also cited specific sections of the Jerusalem Township Zoning Resolution as regulations relevant to her questions. (Id. at 11-12.) Later that day, Wilhelm replied:
That is not what I am looking for. I am looking for the SOURCE that Ms. Rossler used. * * * If zoning is following that rule, why are the storage facilities not required to do the same and what about winter storage? * * * You're not providing me with the information I have requested.
(Emphasis added.) (Id. at 10-11.) On May 26, 2020, the trustee responded again, providing an online link to the Zoning Resolution, and referring Wilhelm to the agreement she had signed with the Oregon Prosecutor. (Id. at 8-9.) In her next reply, Wilhelm rephrased:
(Emphasis added.) (Id. at 7-8.) In the next communications, the trustee provided additional advice regarding options available to Wilhelm. In the final communication, Wilhelm repeated her question:
I want the source that Ms. Rossler found that states the boats need to be licensed, safety inspected and deemed sea worthy or they are considered blight. The township has wording for automobiles. I want the wording for boats.
{¶8} It is "the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue." State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. A request that does not reasonably identify what public records are being requested may be denied. R.C. 149.43(B)(2).2 Judicial determination of whether an office has properly denied all or part of a request as ambiguous or overly broad is based on the facts and circumstances in each case. Zidonis at ¶ 26.
{¶9} Accordingly, in response to a question or request for information that does not identify the records sought, a public office has "no duty under R.C. 149.43 to create new records by searching for and compiling information from existing records." State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 154, 707 N.E.2d 496 (1999); State ex rel. Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997) (). This includes requests for records supporting or explaining an agency decision. State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98820, 2012-Ohio-6012, ¶ 14 (); Kovach v. Geauga Cty. Auditor's Office, Ct. of Cl. No. 2019-00917PQ, 2019-Ohio-5455, ¶ 9-10 ().
{¶10} Wilhelm's questions ask: 1) how do the Township's requirements make her boats look any better, 2) what regulations, statutes, or other "sources" underlie the Township's requirements and actions, and 3) why are others not held to the same standards? None of these questions identify any office document by a relevant combination of title, date, author, recipient, location, retention category, subject matter, document type, or other locator/identifier. They instead invite the Township to create a reply letter or make a verbal response explaining the purpose,...
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